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[ { "docid": "11100712", "title": "", "text": "that the question of adequate assurance of future performance could best be determined at the time of confirmation of a plan. To do so, however, will imperil the Debtor’s financing efforts and probably make it impossible to promulgate a plan leading, in all likelihood, to the ultimate rejection of the lease. In the interim, the Debtor could continue to operate and would be obligated to pay the Lessor royalties accruing on the gold produced post-petition, as well as to otherwise perform under the lease pending assumption or rejection. 11 U.S.C. § 365(d)(3). Under this scenario the Lessor would gain some slight benefit, but likely would shortly end up in the same situation as if rejection of the lease were ordered at the present time. The third alternative is to permit the Debtor to assume the lease now. This will require the Debtor to cure the past defaults, as dealt with above, to the benefit of the Lessor. Operations will be ongoing and royalties will accrue to the Lessor in the interim. In addition the lien suits remain stayed, and the Debtor has the opportunity to negotiate with the lien claimants, as well as the State of Montana, within the context of the Chapter 11 proceeding, which certainly benefits the Lessor. Permitting the Debtor to assume at the present time also heightens the ability of the Debtor to move forward toward effecting a plan of reorganization. The Court recognizes that there is a significant risk that the Debtor will be unable to effect a plan of reorganization and that ultimately, if the lease is assumed, the Debtor may default in its performance under the lease. If that occurs, the Lessor will then have an administrative claim in this estate for the damages suffered by reason of the default. If there were other assets in the estate, the risk of the administrative claim might cast doubt on the advisability of permitting the assumption at the present time because of the ultimate adverse effect on the other creditors of the estate. In the absence of other significant assets, such a risk is of" } ]

[ { "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": "1191825", "title": "", "text": "which may involve an extended period of time resulting in additional loss, depending on when the trustee has scheduled the hearing of the motion. This Court appreciates the desire to protect lessors, but there is simply no indication that Congress intended to protect lessors from all problems incident to a tenant's filing a petition in bankrupt. All creditors — including landlords — should expect some loss, delay or inconvenience. Whatever the loss may be from the delay between a debtor's rejection and court approval of same would constitute the landlord’s cost from doing business with an insolvent tenant — a cost to be borne by the landlord, not the other creditors. Nothing in the Code remotely suggests that landlords should be absolved of all loss from dealing with insolvent or bankrupt tenants. If the lessor truly is concerned about incurring costs due to the tenant’s delay, the lessor always has the option of filing a motion requesting the debtor to assume or reject, thus bringing the issue before the court for prompt resolution. The Reveo court further reasons that if the trustee rejects a lease which would provide more benefit if assumed, the estate will incur a greater loss, and the court can do nothing because the effective date of rejection is the date of notification: [I]f after notification of rejection is given, circumstances exist that indicate the lease should not have been rejected (a party is interested in purchasing the lease at a profit to the debtor’s estate) the rejection would still be effective as of the date of notification. Under these circumstances the estate will suffer a loss as the lease was rejected prior to the date the offer to purchase was received. 109 B.R. at 269. This line of reasoning, which Rouse expressly adopts, overlooks Bankruptcy Rules 6006 and 9014 which protect against such unilateral actions. The trustee administers the estate and is in the best position to weigh factors immediately and act in the best interests of the estate. But no matter what the trustee’s actions (assumption or rejection), they are not the estate. But no" }, { "docid": "5478787", "title": "", "text": "525, 526 (Bankr.D.Colo.1987). “The plain, unequivocal language of Section 365(a) indicates that court approval is required before a lease can be rejected.” In re National Oil, 80 B.R. at 526. This court agrees with the majority view. Section 365 is designed in part to ensure greater factual certainty as to the date of rejection of a lease. Id.; In re Swiss Hot Dog Co., 72 B.R. 569, 573 (Bankr.D.Colo.1987). The minority interpretation of § 365(a) discourages a lessor from reletting property vacated by a debtor until after the court has approved the debtor’s rejection because the lessor might become obligated to rent the premises to two lessees if the debtor’s motion is denied. See In re Revco, 109 B.R. at 269. This interpretation places the burden created by the debtor’s indecision on the lessor and contravenes clear Congressional intent that the debtor timely perform all of its obligations under a lease until the lease is assumed or rejected. Therefore, the court concludes that neither debtor’s prepetition abandonment and surrender nor the postpetition filing of its motion to reject effected a rejection of the Pasadena Lease. Under § 365(d)(4) “if the trustee does not assume or reject an unexpired lease of nonresidential real property ... within 60 days after the date of the order for relief ... then such lease is deemed rejected....” 11 U.S.C. § 365(d)(4). No order was entered approving debtor’s rejection of the Pasadena Lease, or extending the time for assumption or rejection. Thus, the Pasadena Lease continued in effect until it was deemed rejected sixty days after the order for relief on April 17, 1991. The court will next consider the appropriate treatment and priority to be accorded to the lessor’s claim. Section 365(d)(3) states that “[t]he trustee shall timely perform all the obligations of the debtor ... arising from and after the order for relief under any unexpired lease of nonresidential real property, until such lease is ... rejected, notwithstanding section 503(b)(1) of this title_” 11 U.S.C. § 365(d)(3) (emphasis added). Again, there is a split of authority on this issue. Some courts have held that" }, { "docid": "3582625", "title": "", "text": "that the rejection should not be approved and a determination of damages would have to be made on a case by case basis. 7V., pp. 184-185. This Court rejects Revco’s position as it is contra to section 365(a) and case law. Clearly, rejection of an unexpired lease is by necessity effective only upon court approval. Revco relies on In re 1 Potato 2, Inc., 58 B.R. 752 (Bankr.D.Minn.1986) in support of its position. In that case the court denied a lessor’s request for administrative rent incurred subsequent to receipt of a notice of rejection of the lease. The court in 1 Potato 2 stated on pp. 754-55: [T]he trustee or debtor in possession may assume or reject an executory contract or unexpired lease by clearly communicating in an unequivocal manner its intentions to either assume or reject to the lessor. Court approval, therefore, in effect is not a condition precedent to an effective assumption or rejection but rather, the statutory language in section 365(a) serves to indicate that the decision of the trustee or debtor-in-possession, and its business judgment, is subject to review and possible reversal by the court. This Court respectfully declines to follow the conclusion of the court in 1 Potato 2. This Court finds the holding and rationale of 1 Potato 2 flawed. The court in 1 Potato 2 relied heavily on By-Rite Distributing, Inc. v. Brierley, (In re By-Rite Distributing, Inc.), 55 B.R. 740 (D.Utah 1985) in support of its decision. In By-Rite the court held that a trustee assumes a lease, for purposes of 11 U.S.C. § 365(d)(4), when he communicates his decision to assume by filing a motion within 60 days of the petition date. The By-Rite court did not address when an assumption or rejection becomes effective. The By-Rite decision addresses the procedures for filing a motion under § 365(d)(4) — this is not the issue at bar or in 1 Potato 2. In re Bon Ton Restaurant and Pastry Shop, Inc., 52 B.R. 850 (Bankr.N.D.Ill.1985), also cited by the 1 Potato 2 court, addressed the same issue as By-Rite and did not" }, { "docid": "3582623", "title": "", "text": "the business judgment test. It may be, on certain occasions, that a debtor’s decision to reject an unexpired lease would not be in the best interests of the estate or the creditors, and the requirement of court approval operates as a safeguard to protect against a unilateral decision by the debtor that could be prejudicial to the creditors. See Johnson v. Fairco Corp., 61 B.R. 317 (Bankr.N.D.Ill.1986); cf. In re Grayhall Resources, Inc., 63 B.R. 382 (Bankr.Colo.1986). An examination of Revco’s position, when applied to facts different from the case at bar, reveals that additional costs and burdens may be incurred by the debt- or’s estate if the court does not approve a rejection of a lease. According to Revco’s position a debtor can reject a lease simply by notifying lessor it rejects the lease and will seek court approval of the rejection at a later date. Under Revco’s interpretation, upon notification of rejection to lessor the debtor’s obligation to pay rent ceases. The Court finds two serious problems with this interpretation. First, the lessor is placed in the unfortunate position of relying on debtor to file a motion for approval of the rejection with the court and await approval. During this period of time the lessor shall receive no rent under the lease. If lessor does not choose to rely on debtor’s action the lessor may do the following: a) Relet the premises prior to court approval of the rejection and face the risk that the court may not approve the rejection; or b) Initiate its own action to seek approval of the rejection and recover the property. Secondly, if after notification of rejection is given, circumstances exist that indicate the lease should not have been rejected (a party is interested in purchasing the lease at a profit to the debtor’s estate) the rejection would still be effective as of the date of notification. Under these circumstances the estate will suffer a loss as the lease was rejected prior to the date the offer to purchase was received. When questioned at the hearing regarding such a scenario Reveo responded" }, { "docid": "3582627", "title": "", "text": "discuss the effective date of an assumption or rejection. Additionally, the holding in 1 Potato 2 has been rejected by other courts. Swiss Hot Dog Co., 72 B.R. at 573 (“I decline to follow 1 Potato 2 to the extent it exceeds the scope of the By-Rite and Bon Ton discussions on assumption by conduct.”) and labeled as the minority viewpoint on when a rejection is effective under section 365(a). In re D’Lites of America, Inc., 86 B.R. 299, 302 (Bankr.N.D.Ga.1988). Accordingly, this Court finds Revco’s position unpersuasive and holds that a rejection of an unexpired lease becomes effective only upon court ordered express approval of said rejection. Therefore, it is the conclusion of this Court that the rejection of the Sublease in the instant matter became effective on December 13, 1988. ISSUE 2 ARE THE POSTPETITION RENTS AND MISCELLANEOUS EXPENSES WHICH ACCRUED UNDER THE SUBLEASE IMMEDIATELY PAYABLE AS EXPENSES OF ADMINISTRATION OF THE DEBTORS’ ESTATE? CONCLUSIONS OF LAW Kandist seeks payment of all rent accruing through the effective date of the rejection, December 13, 1988, as well as miscellaneous expenses incurred by Kandist upon notification that Debtors intended to reject the Sublease. Section 365(d)(3) of the Bankruptcy Code, 11 U.S.C. § 365(d)(3), states in pertinent part: The trustee shall timely perform all the obligations of the debtor, ... arising from and after the order for relief under any unexpired lease of nonresidential real property, until such lease is assumed or rejected, notwithstanding section 503(b)(1) of this title. POSTPETITION RENT This provision expressly provides that the debtor timely compensate a lessor of nonresidential real property for full rental obligations due under the lease until it is actually rejected. In re Rare Coin Galleries of America, Inc., 72 B.R. 415, 416 (D.Mass.1987). In accordance with this Court’s conclusion that the Sublease was rejected effective December 13, 1988, Reveo is obligated to timely pay Kandist for all rent accruing through the effective date. Accordingly, Reveo shall be ordered to pay Kandist $106,337.16 (Finding No. 10) for the rent accrued under the Sublease from October 24, 1988 through the date of rejection. Section" }, { "docid": "3582620", "title": "", "text": "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 the better rule was that judicial approval was required before allowing the assumption or rejection of an unexpired lease”; In re D’Lites of America, Inc., 86 B.R. 299, 302 (Bankr.N.D.Ga.1988) (follows majority rule that lease cannot be assumed by conduct); In re OK Kwi Lynn Candles, Inc., 75 B.R. 97, 100 (Bankr.N.D.Ohio 1987) (rejecting debtor’s assertion that assumption of lease may occur “through ways other than formal notice”). POLICY CONSIDERATIONS While the clear language of section 365(a) and supporting case law establish that an unexpired lease is not rejected until Bankruptcy Court approval this Court further notes important policy considerations that support this view as well. The differences between former Bankruptcy Rule 607 and current Bankruptcy Rules 6006(a) and 9014 evidence Con gressional intent to strengthen the role of the court in the assumption/rejection decision making process. Swiss Hot Dog Co. v. Vail Village Inn, Inc., (In re Swiss Hot Dog Co.), 72 B.R. 569, 573 (D.Colo.1987). This Court agrees with the policy considerations noted in Swiss Hot Dog, at 573, “Court approval” is now" }, { "docid": "18493897", "title": "", "text": "administrative rent should be awarded until the debtor relinquishes possession or until the rejection is approved by the court. On the one hand, section 365 requires court approval of any rejection, so a purported rejection, or anything less than court sanction would not be legally effective. The creditor has a right to the protection of a court order prior to taking steps to mitigate damages, for example, by re-letting the property. If the lessor relet the subject of the lease and the rejection was subsequently not approved by the court, the lessor would be in violation of the automatic stay. Matter of Federated Dept. Stores, Inc., 131 B.R. 808, 815 (S.D.Ohio 1991) (citing In re Revco D.S., Inc., 109 B.R. 264, 269 (Bankr.N.D.Ohio 1989)). On the other side, some courts have held that the gap period ends when the lessor accepts possession of its property, even if the court ordered rejection occurs at a later date. It is impossible to show the required benefit to the estate if the lease subject is no longer in the debtor’s possession. See, e.g., United Trucking, 851 F.2d at 163 (leased trucks stolen pre-petition not subject to administrative expense award). If mere possession of personalty is not enough to trigger administrative rent, it would be inconsistent to allow an administrative expense claim after the debtor has returned the property to the lessor. Accordingly, administrative rent is only awarded from the petition date until Avitas accepted delivery of the aircraft (December 2, 1990 through October 31, 1991). (5) Setoff The next question is whether the Debtor may equitably set off the administrative expense claim with its improvements to two engines. Continental argues that the administrative expense must be based on a “net” benefit to the estate and that Movants would be unjustly enriched to the extent they recover administrative rent plus improved engines. The only valid offset to an administrative expense claim would be a necessary expenditure by the debtor prior to use of the creditor’s property. In essence, the debtor would have to make the same showing an administrative claimant must under section 503(b)(1)(A):" }, { "docid": "18515968", "title": "", "text": "would lead a court to consider the minority position so as not to reward a lessor for the time it takes the debtor to get a court order. In this case, Amber’s served a motion to reject the Petula Lease on Petula on the date the petition was filed, but the order approving rejection was not entered until five days later. Why should the debtor be penalized by having to wait for an order to be entered rejecting a lease before the lease is considered rejected, when there is an unequivocal action on the debtor’s part to reject the lease, the debtor is receiving no benefit from the leased premises, and the debtor has filed a motion with the court to reject? The short answer to this question is because the Bankruptcy Code and the Federal Rules of Bankruptcy Procedure require it. Section 365(a) of Title 11 read together with Federal Rules of Bankruptcy Procedure 6006 and 9014 require that when rejecting a lease, the debtor or the trustee must file a formal motion to assume or reject a lease and.there must be notice to parties in interest with an opportunity to object in a contested proceeding before the court. Rejection only occurs after approval by the court. The Court can understand the allure of the argument to which other courts have succumbed, allowing the effective rejection under § 365(a) to be the date the lessor receives unequivocal notice of intent to reject, but if the Court were to follow this view, appealing as it would be in this situation, then there would be no certainty on the part of either the lessor or the debtor as to when the lease will be rejected and the premises can be re-leased. This Court also finds the best policy lies in the majority view that relies on an order by the court for determination of the date of rejection. How could the parties be sure of the date if the rule were anything else? For example, on the present set of facts, the debtor vacated the premises and turned over the keys" }, { "docid": "1191828", "title": "", "text": "to reject said lease such as serving notice of a motion to reject. Consequently, this Court will allow a court approved rejection of an unexpired non-residential lease to apply retroactively to the date the trustee notices the motion requesting same. In this case the first notice was served March 1, 1992. The Court, therefore, finds that the lease was deemed rejected effective March 1, 1992. Whether Section 365(d)(3) compels the debtor to make immediate payment of rent accrued post-petition as an administrative expense In a separate motion, Rouse requests this Court to compel the Debtor to pay immediately, in full, all post-petition rent accrued through the date of rejection since the Debtor entered bankruptcy. According to Rouse, the language of Section 365(d)(3) requires the trustee to timely perform the Debtor’s unexpired lease obligations until the lease is assumed or rejected. Rouse, therefore, concludes that it is entitled to immediate payment of all accrued post-petition rent, which the Debtor has neglected to pay. The Debtor on the other hand argues that Rouse attempts to isolate Section 365(d)(3) to avoid the application of Section 507(a)(1) which specifies the priorities afforded claims against the estate. According to the Debtor, Rouse’s claim should share pro rata with all other Section 507 administrative expenses allowed under Section 503(b). As this Court previously explained, the rejection of Rouse’s lease occurred on the day the Debtor served its motion to reject. Thus, the issue of payment of post-petition obligations runs from the petition date through and including February 29, 1992. As earlier mentioned, Congress intended to afford lessors some additional protections not afforded others. The lessor to whom Section 365(d)(3) applies is uniquely situated because the lessor becomes necessarily involved both in the debtor’s reorganization (since the lease is an asset of the estate) as well as the debtor’s ongoing business (since the debtor controls the lessor’s property while deciding whether to assume or reject the lease). In re CSVA, Inc., 140 B.R. 116, 120 (Bankr.W.D.N.C.1992). Unlike utilities, trade creditors, or post-petition employees, the lessor cannot utilize self-help remedies and terminate its rela- • tionship with the" }, { "docid": "1191824", "title": "", "text": "the best interests of the estate. Thus, if the trustee rejects a lease, but the court later learns that said rejection is not in the best interests of the estate, then the court can deny the trustee’s rejection. Whatever the trustee may do (assume or reject), the hearing provided by Bankruptcy Rule 9014 operates to protect the estate and claimants against unilateral acts of the trustee. Thus, Bankruptcy Rules 6006 and 9014 have changed the bankruptcy court's role from participant to that of protector. This Court interprets Section 365 and Bankruptcy Rules 6006 and 9014 as diminishing the Court’s involvement in the actual decision making process, and thus finds the Reveo court’s analysis unpersuasive. The Reveo court further reasons that the lessor will be placed in the “unfortunate position of relying on debtor to file a motion for approval of the rejection with the court and await court approval.” 109 B.R. at 269. In other words, the lessor will receive no rent under the lease between the time of rejection and court approval of same which may involve an extended period of time resulting in additional loss, depending on when the trustee has scheduled the hearing of the motion. This Court appreciates the desire to protect lessors, but there is simply no indication that Congress intended to protect lessors from all problems incident to a tenant's filing a petition in bankrupt. All creditors — including landlords — should expect some loss, delay or inconvenience. Whatever the loss may be from the delay between a debtor's rejection and court approval of same would constitute the landlord’s cost from doing business with an insolvent tenant — a cost to be borne by the landlord, not the other creditors. Nothing in the Code remotely suggests that landlords should be absolved of all loss from dealing with insolvent or bankrupt tenants. If the lessor truly is concerned about incurring costs due to the tenant’s delay, the lessor always has the option of filing a motion requesting the debtor to assume or reject, thus bringing the issue before the court for prompt resolution. The Reveo" }, { "docid": "3582624", "title": "", "text": "is placed in the unfortunate position of relying on debtor to file a motion for approval of the rejection with the court and await approval. During this period of time the lessor shall receive no rent under the lease. If lessor does not choose to rely on debtor’s action the lessor may do the following: a) Relet the premises prior to court approval of the rejection and face the risk that the court may not approve the rejection; or b) Initiate its own action to seek approval of the rejection and recover the property. Secondly, if after notification of rejection is given, circumstances exist that indicate the lease should not have been rejected (a party is interested in purchasing the lease at a profit to the debtor’s estate) the rejection would still be effective as of the date of notification. Under these circumstances the estate will suffer a loss as the lease was rejected prior to the date the offer to purchase was received. When questioned at the hearing regarding such a scenario Reveo responded that the rejection should not be approved and a determination of damages would have to be made on a case by case basis. 7V., pp. 184-185. This Court rejects Revco’s position as it is contra to section 365(a) and case law. Clearly, rejection of an unexpired lease is by necessity effective only upon court approval. Revco relies on In re 1 Potato 2, Inc., 58 B.R. 752 (Bankr.D.Minn.1986) in support of its position. In that case the court denied a lessor’s request for administrative rent incurred subsequent to receipt of a notice of rejection of the lease. The court in 1 Potato 2 stated on pp. 754-55: [T]he trustee or debtor in possession may assume or reject an executory contract or unexpired lease by clearly communicating in an unequivocal manner its intentions to either assume or reject to the lessor. Court approval, therefore, in effect is not a condition precedent to an effective assumption or rejection but rather, the statutory language in section 365(a) serves to indicate that the decision of the trustee or debtor-in-possession," }, { "docid": "1075131", "title": "", "text": "lease occurred. Debtor argues that Court approval is not a condition precedent to effective rejection of the lease and insists that rejection occurred, for purposes of § 365(d)(3), when it vacated the premises on August 15, 1991. According to debtor, movant is not entitled to payment of administrative rents after August 15, 1991. Movant argues that Court approval is a condition precedent to debtor’s effective rejection of the lease and insists that rejec tion did not occur until September 3, 1991, when the Order approving rejection of the lease was issued by this Court. Movant claims that he is entitled to administrative rents even after debtor vacated the premises and until issuance of said Order. The United States Court of Appeals for the Third Circuit has not decided this issue. Those courts that have done so have reached contrary results. The majority of courts appear to hold that court approval is a condition precedent to effective rejection. See, for instance, In re Revco, D.S., Inc., 109 B.R. 264, 268-69 (Bankr.N.D.Ohio 1989); In re Garfinckels, Inc., 118 B.R. 154 (Bankr.D.C.1990); In re Virginia Packaging Supply Co., Inc., 122 B.R. 491, 493 (Bankr.E.D.Va.1990); In re Worths Stores Corp., 130 B.R. 531, 533 (Bankr.E.D.Mo.1991). A minority of courts have held that court approval is not a condition precedent to an effective rejection and that rejection may occur prior to issuance of the order approving rejection. See In re 1 Potato 2, Inc., 58 B.R. 752, 754-55 (Bankr.D.Minn.1986); In re Carlisle Homes, Inc., 103 B.R. 524, 535-36 (Bankr.D.N.J.1988); In re Re-Trac Corp., 59 B.R. 251, 255 (Bankr.D.Minn.1986). The majority view appears to be better reasoned. Issuance of an order by the court approving rejection of the lease is a condition precedent to effective rejection of the lease by the debtor. In addition to the plain language of § 365(a), which expressly requires a debtor to obtain prior court approval of a lease rejection, Bankruptcy Rules 6006(a) and 9014 mandate that a lessor be given reasonable notice and the opportunity to be heard prior to adjudication of its rights under the lease. See In re" }, { "docid": "1191826", "title": "", "text": "court further reasons that if the trustee rejects a lease which would provide more benefit if assumed, the estate will incur a greater loss, and the court can do nothing because the effective date of rejection is the date of notification: [I]f after notification of rejection is given, circumstances exist that indicate the lease should not have been rejected (a party is interested in purchasing the lease at a profit to the debtor’s estate) the rejection would still be effective as of the date of notification. Under these circumstances the estate will suffer a loss as the lease was rejected prior to the date the offer to purchase was received. 109 B.R. at 269. This line of reasoning, which Rouse expressly adopts, overlooks Bankruptcy Rules 6006 and 9014 which protect against such unilateral actions. The trustee administers the estate and is in the best position to weigh factors immediately and act in the best interests of the estate. But no matter what the trustee’s actions (assumption or rejection), they are not the estate. But no matter what the trustee’s actions (assumption or rejection), they are not absolute— they must meet with court approval. 11 U.S.C. § 365(a). Thus, the trustee cannot cause the estate to suffer any loss arising from rejecting a profitable lease, because the court must sign-off on any such rejection. Allowing the trustee to reject a lease subject to court approval, simply allows the estate to reduce its administrative expenses, assuming the court approves the trustee’s decision. The most compelling argument for disallowing the retroactive approval of a trustee’s rejection involves the certainty of any such decision. The Reveo court explains that prior court approval is necessary because it provides certainty as to the actual date of rejection. This Court agrees that court approval under Bankruptcy Rule 9014 provides finality as to the trustee’s acts, but the small time gap between notice and hearing does not disturb that certainty so as to require a different result. The Court finds that a trustee’s rejection of a lease should be retroactive to the date that trustee takes affirmative steps" }, { "docid": "3716223", "title": "", "text": "B.R. 869 (Bankr.S.D.N.Y.1993) (pre-petition and post-petition ad valorem taxes to be paid); In re Atlantic Container Corp., 133 B.R. 980 (Bankr.N.D.Ill. 1991) (repair costs included; In re Pacific Sea Farms, 134 B.R. 11 (Bankr.D.Haw.1991) (reasonable attorney's fees of lessor allowed); In re Orient River Investments, Inc., 112 B.R. 126 (Bankr.E.D.Pa.1990) (lessor not entitled to effect in forfeiture of rents credits merely because debt- or late in making post-petition payment of rent); In re Food City, Inc., 95 B.R. 451 (Bankr. W.D.Tex.1988) (lessor not entitled to $250,000 fee against debtor-tenant for tenants \"ceasing to do business”, as such not within scope of obligations covered under § 365(d)(3)). .One line of cases holds that rejection is effective without the actual necessity of a court order, while the other view is that it is the court order which effectuates rejection. Compare, In re Joseph C. Spiess Co., 145 B.R. 597 (Bankr.N.D.Ill. 1992) (Any act which clearly and unambiguously communicates to a lessor the debtor’s intention to reject an unexpired lease is sufficient to terminate the period for which that lessor can claim administrative rent pursuant to § 365(d)(3), even through court approval of the rejection comes at a later date); with In re Appliance Store, Inc., 148 B.R. 226 (Bankr.W.D.Pa.1992) (Approval of the trustee’s decision to assume or reject is not effective until date of the court order.) . It is certainly a fact that the majority of contested matters in bankruptcy courts do not end up with reported opinions after a decision is made. Orvco and Southwest Aircraft, supra, were decided in the 9th Circuit which has an extremely heavy bankruptcy caseload. It may be that the balance of decisions actually being made on this issue weigh in favor of the 'minority” position. The point is that counting reported positions on one’s fingers is not necessarily helpful in the final analysis. . (b) If the trustee, under section 362, 363, or 364 of this title, provides adequate protection of the interest of a holder of a claim secured by a lien on property of the debtor and if, notwithstanding such protection, such" }, { "docid": "1191823", "title": "", "text": "‘an indispensable step in the process.’ Revco, 109 B.R. at 268-69 (citations omitted) (footnotes omitted). Whatever the court’s involvement may be, the plain language of neither rule in any way requires court authorization prior to assuming or rejecting a lease. A closer review of former Bankruptcy Rule 607 shows the flaw in the Reveo court’s assumption. Bankruptcy Rule 607 provided that “[wjhenever practicable, the trustee shall obtain approval of the court before he assumes a contract.” R.Bankr.P. 607 (emphasis added). As the plain language states, the former rule encouraged the trustee to seek prior court authorization to assume a contract. Bankruptcy Rules 6006(a) and 9014 on the other hand treat court approval as merely a safeguard or precaution to assuring any assumption or rejection is in the best interests of the estate. Those rules provide, for example, that court approval is obtained only after a motion is filed and a hearing is held. This safeguard gives those objecting to the trustee's actions an opportunity to persuade the court to disallow said actions, if not in the best interests of the estate. Thus, if the trustee rejects a lease, but the court later learns that said rejection is not in the best interests of the estate, then the court can deny the trustee’s rejection. Whatever the trustee may do (assume or reject), the hearing provided by Bankruptcy Rule 9014 operates to protect the estate and claimants against unilateral acts of the trustee. Thus, Bankruptcy Rules 6006 and 9014 have changed the bankruptcy court's role from participant to that of protector. This Court interprets Section 365 and Bankruptcy Rules 6006 and 9014 as diminishing the Court’s involvement in the actual decision making process, and thus finds the Reveo court’s analysis unpersuasive. The Reveo court further reasons that the lessor will be placed in the “unfortunate position of relying on debtor to file a motion for approval of the rejection with the court and await court approval.” 109 B.R. at 269. In other words, the lessor will receive no rent under the lease between the time of rejection and court approval of same" }, { "docid": "3582621", "title": "", "text": "the better rule was that judicial approval was required before allowing the assumption or rejection of an unexpired lease”; In re D’Lites of America, Inc., 86 B.R. 299, 302 (Bankr.N.D.Ga.1988) (follows majority rule that lease cannot be assumed by conduct); In re OK Kwi Lynn Candles, Inc., 75 B.R. 97, 100 (Bankr.N.D.Ohio 1987) (rejecting debtor’s assertion that assumption of lease may occur “through ways other than formal notice”). POLICY CONSIDERATIONS While the clear language of section 365(a) and supporting case law establish that an unexpired lease is not rejected until Bankruptcy Court approval this Court further notes important policy considerations that support this view as well. The differences between former Bankruptcy Rule 607 and current Bankruptcy Rules 6006(a) and 9014 evidence Con gressional intent to strengthen the role of the court in the assumption/rejection decision making process. Swiss Hot Dog Co. v. Vail Village Inn, Inc., (In re Swiss Hot Dog Co.), 72 B.R. 569, 573 (D.Colo.1987). This Court agrees with the policy considerations noted in Swiss Hot Dog, at 573, “Court approval” is now “an indispensible step in the process.” A.H. Robins, at 710. Reveo contends that if court approval is necessary to effectuate a rejection both debtors and lessors would be subject to the uncertainty of court dockets and resolution of the rejection issue could be delayed for significant periods, to the detriment of debtors, lessors and creditors. [Debtors’ Brief in Opposition, p. 11 (Docket No. 912) ] Reveo further contends that difficulties with court approval will be especially burdensome in this case wherein Reveo has approximately 1,900 leases, any of which may be rejected prior to plan confirmation. This Court rejects Revco’s contentions and concurs with the court in National Oil, supra, at p. 526: Section 365 and the accompanying Bankruptcy Rules are designed to provide a degree of factual certainty in determining the actual date of rejection. Moreover the requirements of notice and opportunity for a hearing under Bankruptcy Rule 9014 provide the creditors and the court with an opportunity to examine the efficacy of a debtor’s decision to reject a lease under the guidelines of" }, { "docid": "18493896", "title": "", "text": "the closest thing to a comparable transaction before the court. Indeed it is the closest value to “what any other customer would have to pay under the same circumstances.” Sharon Steel, 872 F.2d at 42 (citation omitted). See also Wheeling-Pittsburgh Steel Corp. v. West Penn Power Co. (In re Wheeling-Pittsburgh Steel Corp.), 122 B.R. 29, 32 (Bankr.W.D.Pa.1990) (valuing post-petition utility service for administrative expense claim by examining rate schedules for customers “with demand level similar to the Debtor.”). Given the evidence presented at trial and the transactions put on the record, this court finds the reasonable monthly use value of the aircraft to be $75,000/month. (4) Administrative Claim Period The next issue is for what post-petition period is administrative rent due. Movants argue that they are entitled to the entire amount the Debtor is in default, including pre-petition arrearages, until this court approved the rejection of the Lease. Continental argues that the administrative rent should be awarded from the petition date until the plane was delivered to Avi-tas. There are two theories as to whether administrative rent should be awarded until the debtor relinquishes possession or until the rejection is approved by the court. On the one hand, section 365 requires court approval of any rejection, so a purported rejection, or anything less than court sanction would not be legally effective. The creditor has a right to the protection of a court order prior to taking steps to mitigate damages, for example, by re-letting the property. If the lessor relet the subject of the lease and the rejection was subsequently not approved by the court, the lessor would be in violation of the automatic stay. Matter of Federated Dept. Stores, Inc., 131 B.R. 808, 815 (S.D.Ohio 1991) (citing In re Revco D.S., Inc., 109 B.R. 264, 269 (Bankr.N.D.Ohio 1989)). On the other side, some courts have held that the gap period ends when the lessor accepts possession of its property, even if the court ordered rejection occurs at a later date. It is impossible to show the required benefit to the estate if the lease subject is no longer in" }, { "docid": "5478786", "title": "", "text": "it was in effect until deemed automatically rejected 60 days after the order for relief. There is a split of authority concerning what is necessary to reject a lease. The minority view is that, despite the qualifying phrase “subject to the court’s approval” in § 365(a), conduct showing an unequivocal intent to reject is sufficient. See In re 1 Potato 2, Inc., 58 B.R. 752, 754-55 (Bankr.D.Minn.1986); In re By-Rite Distrib., Inc., 55 B.R. 740, 742-43 (Bankr.D.Utah 1985). These courts reason that the quoted language does not require court approval as a condition precedent to rejection. Rather, the debtor may reject a lease unilaterally, subject to review and reversal by the court. Id. The weight of authority, however, holds that a lease is not rejected until the court grants a debtor's motion to reject. See In re D’Lites of America, Inc., 86 B.R. 299 at 302 (Bank.N.D.Ga.1988); In re Revco D.S., Inc., 109 B.R. 264, 267 (Bankr.N.D.Ohio 1989); In re Guardian Equip. Corp., 18 B.R. 864, 867 (Bankr.S.D.Fla.1982); In re National Oil Co., 80 B.R. 525, 526 (Bankr.D.Colo.1987). “The plain, unequivocal language of Section 365(a) indicates that court approval is required before a lease can be rejected.” In re National Oil, 80 B.R. at 526. This court agrees with the majority view. Section 365 is designed in part to ensure greater factual certainty as to the date of rejection of a lease. Id.; In re Swiss Hot Dog Co., 72 B.R. 569, 573 (Bankr.D.Colo.1987). The minority interpretation of § 365(a) discourages a lessor from reletting property vacated by a debtor until after the court has approved the debtor’s rejection because the lessor might become obligated to rent the premises to two lessees if the debtor’s motion is denied. See In re Revco, 109 B.R. at 269. This interpretation places the burden created by the debtor’s indecision on the lessor and contravenes clear Congressional intent that the debtor timely perform all of its obligations under a lease until the lease is assumed or rejected. Therefore, the court concludes that neither debtor’s prepetition abandonment and surrender nor the postpetition filing of its" }, { "docid": "3582622", "title": "", "text": "“an indispensible step in the process.” A.H. Robins, at 710. Reveo contends that if court approval is necessary to effectuate a rejection both debtors and lessors would be subject to the uncertainty of court dockets and resolution of the rejection issue could be delayed for significant periods, to the detriment of debtors, lessors and creditors. [Debtors’ Brief in Opposition, p. 11 (Docket No. 912) ] Reveo further contends that difficulties with court approval will be especially burdensome in this case wherein Reveo has approximately 1,900 leases, any of which may be rejected prior to plan confirmation. This Court rejects Revco’s contentions and concurs with the court in National Oil, supra, at p. 526: Section 365 and the accompanying Bankruptcy Rules are designed to provide a degree of factual certainty in determining the actual date of rejection. Moreover the requirements of notice and opportunity for a hearing under Bankruptcy Rule 9014 provide the creditors and the court with an opportunity to examine the efficacy of a debtor’s decision to reject a lease under the guidelines of the business judgment test. It may be, on certain occasions, that a debtor’s decision to reject an unexpired lease would not be in the best interests of the estate or the creditors, and the requirement of court approval operates as a safeguard to protect against a unilateral decision by the debtor that could be prejudicial to the creditors. See Johnson v. Fairco Corp., 61 B.R. 317 (Bankr.N.D.Ill.1986); cf. In re Grayhall Resources, Inc., 63 B.R. 382 (Bankr.Colo.1986). An examination of Revco’s position, when applied to facts different from the case at bar, reveals that additional costs and burdens may be incurred by the debt- or’s estate if the court does not approve a rejection of a lease. According to Revco’s position a debtor can reject a lease simply by notifying lessor it rejects the lease and will seek court approval of the rejection at a later date. Under Revco’s interpretation, upon notification of rejection to lessor the debtor’s obligation to pay rent ceases. The Court finds two serious problems with this interpretation. First, the lessor" } ]

[ { "docid": "22274962", "title": "", "text": "fees award. All attorneys who contribute their services to a case may be awarded reasonable attorneys’ fees. See, e.g., Tasby v. Estes, 651 F.2d 287 (5th Cir.1981) (authorizing the award of two fees even when work is partially duplicative). We find the award of fees to both Mr. Lipman and Ms. Gray to have been reasonable. Third, appellants claim that plaintiffs’ attorneys should not have been compensated for hours invested “prior to the lawyer-client relationship.” Their argument is disingenuous. The challenged hours concern conferences with the NAACP of Apopka, and on-site review of the black community of Apopka prior to the selection of the named plaintiffs. This case is a Fed.R.Civ.P. 23(b)(2) class action on behalf of the black residents of Apopka. The lawyer-client relationship may, therefore, be deemed to have been struck when negotiations were begun with the black community of Apopka of which the NAACP may appropriately be considered a part. In sum, we find no abuse of discretion and the award of attorneys’ fees should stand in its entirety. THE CROSS APPEAL Cross-appellants challenge the district court’s refusal to tax travel, telephone and postage expenses as costs against the defendants. In contrast to our review of the fee award, we are not limited to a review for abuse of discretion because, as cross-appellants correctly contend, the district court applied the wrong law. See Northcross v. Board of Education of Memphis City Schools, 611 F.2d 624, 642 (6th Cir.1979), cert. denied, 447 U.S. 911, 100 S.Ct. 2999, 64 L.Ed.2d 862 (1980). The district court decision was based upon Fed.R.Civ.P. 54(d). Cross-appellants correctly claim that the applicable statute is the Attorney’s Fees Awards Act of 1976, 42 U.S.C. § 1988. Under the statutory authority of section 1988, courts in this circuit have long awarded expenses as part of the costs in civil rights litigation. See, e.g., Gates v. Collier, 616 F.2d 1268 (5th Cir.1980), modified, 636 F.2d 942 (5th Cir.1981); Miller v. Carson, 563 F.2d 741, 754-756 (5th Cir.1977). Where cost-shifting is expressly authorized by statute, the traditional limitations of Rule 54(d) and 28 U.S.C. §§ 1920 and 1923(a)" } ]

[ { "docid": "21592184", "title": "", "text": "expenses are appropriate expenses under § 1920 to the extent they are reasonable. See Dowdell v. City of Apopka, 698 F.2d 1181, 1192 (11th Cir.1983). The court did not err in disallowing the photocopying costs. Plaintiffs did not present required evidence regarding the documents copied including their use or intended use. See Helms v. Wal-Mart Stores, Inc., 808 F.Supp. 1568, 1570 (N.D.Ga.1992). Plaintiffs’ remaining assertions of error by the district court in awarding fees for litigation of the individual claims are meritless and do not warrant discussion. IV. Fees for the class action claims Plaintiffs’ complaint, filed in 1981, alleged class action claims, but certification was denied because of lack of commonality and typicality. It is not contended that this denial was erroneous. In Farrar v. Hobby, — U.S. -, 113 S.Ct. 566, 121 L.Ed.2d 494 (1992), the Supreme Court said: [T]o qualify as a prevailing party, a civil rights plaintiff must obtain at least some relief on the merits of his claim. The plaintiff must obtain an enforceable judgment against the defendant from whom fees are sought, or comparable relief through a consent decree or settlement. Id. at -, 113 S.Ct. at 573 (citations omitted). The courts have divided on whether this language applies to all eases, or to only eases in which there is minimal relief, or even is only dictum. The Eleventh Circuit has taken no position in this matter, and this is not an appropriate case in which to address it. We hold that, even if the catalyst theory has survived Farrar, the district court did not err in holding that plaintiffs were not a catalyst in bringing about the consent settlement between Justice and DOT, and that they were not such “active participants” in Justice’s governmental efforts to protect the public interests that they were “prevailing parties.” As we have pointed out, plaintiffs objected to the consent agreement and sought to have the district court refuse to approve it, while at the same time they were pursuing class certification in the instant case, which ultimately was denied for lack of commonality and typicality. AFFIRMED in" }, { "docid": "21592183", "title": "", "text": "698 F.2d 38, 40 (1st Cir.1983). The case, although transferred in 1985 to a judge of the Northern District, based in Atlanta, was initially filed in Macon. Plaintiffs assert Atlanta was the appropriate market because there were no lawyers in Macon with the expertise to handle their case. The district court did not err in focusing on whether there were attorneys in Macon with the ability to handle plaintiffs’ individual claims rather than the proposed class action. Nor did it err in finding that plaintiffs did not meet their burden of showing a lack of Macon lawyers willing or able to handle their individual claims. The district court did not err in applying a $100 hourly rate, at the lowest end of the Macon lawyer’s rates, which it determined to be $100 to $150. The court denied telephone and travel expenses on the ground that 28 U.S.C. § 1920 does not provide for their recovery. The government acknowledges that this was error, and the court should revisit this point. Long distance telephone charges and travel expenses are appropriate expenses under § 1920 to the extent they are reasonable. See Dowdell v. City of Apopka, 698 F.2d 1181, 1192 (11th Cir.1983). The court did not err in disallowing the photocopying costs. Plaintiffs did not present required evidence regarding the documents copied including their use or intended use. See Helms v. Wal-Mart Stores, Inc., 808 F.Supp. 1568, 1570 (N.D.Ga.1992). Plaintiffs’ remaining assertions of error by the district court in awarding fees for litigation of the individual claims are meritless and do not warrant discussion. IV. Fees for the class action claims Plaintiffs’ complaint, filed in 1981, alleged class action claims, but certification was denied because of lack of commonality and typicality. It is not contended that this denial was erroneous. In Farrar v. Hobby, — U.S. -, 113 S.Ct. 566, 121 L.Ed.2d 494 (1992), the Supreme Court said: [T]o qualify as a prevailing party, a civil rights plaintiff must obtain at least some relief on the merits of his claim. The plaintiff must obtain an enforceable judgment against the defendant from whom" }, { "docid": "14436741", "title": "", "text": "with the NCP. D. Did the district court err in awarding attorney fees and litigation expenses under CERCLA? The district court awarded the plaintiffs their attorney fees and litigation expenses under CERCLA. After this appeal was filed, we held that attorney fees are not recoverable under CERCLA. Stanton Road Ass’n v. Lohrey Enter., 984 F.2d 1015, 1020 (9th Cir.1993). The Supreme Court recently held the same, except for attorney fees “closely tied to the actual cleanup.” Key Tronic Corp. v. United States, 114 S.Ct. 1960, 1967 (1994). Neither we nor the Supreme Court has decided the question whether litigation expenses over and above the expenses recoverable under 28 U.S.C. §§ 1821(b) and 1920 may be recovered in a CERCLA action. But see Key Tronic, 114 S.Ct. at 1967 n.14. In the present case, the district court’s award of litigation expenses totalled $436,705.31. This award included such items as travel, lodging, expert witness fees, long distance telephone calls and meals. “[T]he full extent of a federal court’s power to shift litigation costs absent express statutory authority to go further” is defined by 28 U.S.C. §§ 1821(b) and 1920. West Virginia Univ. Hosp., Inc. v. Casey, 499 U.S. 83, 86 (1991). Unless CERCLA permits the recovery of litigation expenses in excess of those recoverable under 28 U.S.C. §§ 1821(b) and 1920, the district court exceeded its authority in making its litigation expense award. CERCLA authorizes private parties to recover “necessary costs of response.... ” 42 U.S.C. § 9607(a)(4)(B). CERCLA defines “response” as including “enforcement activities.” Id. at § 9601(25). The plaintiffs argue that a private cost recovery action is an enforcement activity, making litigation expenses recoverable response costs. We disagree. Key Tronic is instructive. There, in holding that attorney fees are not recoverable for bringing a cost recovery action under CERC-LA, the Court stated that the phrase “enforcement activities” should not be construed “as encompassing the kind of private cost recovery action at issue in [that] case.” Key Tronic, 114 S.Ct. at 1967. As in Key Tronic, the present litigation involves a private cost recovery action under CERCLA. Because bringing this litigation" }, { "docid": "23232282", "title": "", "text": "expenses. What is more, the line between fees and expenses is arbitrary. A lawyer’s hourly billing rate includes many overhead expenses such as local telephone calls. It is impossible to believe that Congress would have wanted prevailing parties to get back their lawyers’ local telephone expenses (invariably included in the hourly fee) but not their long-distance expenses (invariably billed separately); or to get back their secretarial expenses — which are included in overhead and therefore billed as part of the lawyer’s hourly rate rather than separately — but not the expenses of word processing, often billed separately to the client. The defendants argue that the district judge’s action can nevertheless be upheld as a proper exercise of the judicial discretion to which the Civil Rights Attorney's Fees Awards Act refers. Although that discretion is less than the words of the statute suggest — when the prevailing party is the plaintiff he is entitled to an award of attorney’s fees almost as a matter of course, see, e.g., Hensley v. Eckerhart, 461 U.S. 424, 103 S.Ct. 1933, 1937, 76 L.Ed.2d 40 (1983)—the district judge can, of course, and should, disallow particular expenses that are unreasonable whether because excessive in amount or because they should not have been incurred at all. But it is apparent that the district judge made no such judgment here. Not only would it have been unreasonable to regard as unnecessary all of the plaintiffs’ expenses that did not happen to be taxable costs, but the judge made clear that his refusal to award these expenses was based on his interpretation of the statute. He said, “This Court does not permit recovery of those out-of-pocket expenses and disbursements where not so provided. 28 U.S.C. § 1920 sets forth those items which the Clerk may tax as costs. Title VII and § 1988 provides only for ‘reasonable attorney’s fees,’ which has been previously provided [a reference to the court’s award of the $51,014.75]. The Court is aware of those other decisions which permit recovery outside the parameters established by Congress. This Court is not inclined to so permit and" }, { "docid": "8083431", "title": "", "text": "not apparent from this statement, however, exactly what that amount covered, in particular whether it included only airfare or lodging in Rochester as well. Nor is it apparent whether the airfares were the least expensive available, or a more expensive business class or first-class rate. Section 1821(c)(1) provides that “a witness shall utilize a common carrier at the most economical rate reasonably available. A receipt or other evidence of actual cost shall be furnished.” The burden is therefore upon the party seeking costs to provide adequate documentation of its costs, and a failure to do so may result in the costs being reduced or denied. See, e.g., Davis v. Commercial Union Ins. Co., 892 F.2d 378, 385 (5th Cir.1990); Pion v. Liberty Dairy Co., 922 F.Supp. 48, 53 (W.D.Mich.1996). Since I am unable to tell from the record the exact nature of RAF’s claimed travel expenses, or the reasonableness of those expenses, I am not prepared to accept RAF’s device of simply awarding half the amount listed on the billing statement. At the same time, I recognize that some costs were necessarily incurred for Fitzner’s and Keller’s travel and lodging, and I will therefore award a total of $1000 for travel expenses. RAF also seeks $3979.35 for photocopying expenses, court reporter fees, and deposition transcript costs. The Clerk acknowledged that these costs are ordinarily recoverable under 28 U.S.C. § 1920, but denied RAF’s request for these costs on the ground that RAF had not supplied sufficient documentation. RAF contends that its documentation is sufficient, and it has also supplied some additional documentation, including receipts for its deposition transcripts. After reviewing these' materials, I find that RAF has now adequately documented its deposition and court reporter expenses, and I will award the full amounts requested for those, or $1070.70 and $90.00 respectively. The same is not true with respect to the photocopying costs, however. As with the travel expenses, RAF has not sufficiently documented the reasonableness of those costs. Although § 1920(4) allows recovery of costs for “copies of papers necessarily obtained for use in the case,” it is impossible for" }, { "docid": "11047824", "title": "", "text": "their lawyers and clerks. III. COSTS Plaintiffs request compensation for several out-of-pocket litigation expenses. Plaintiffs claim $139,970.58 in initial expenses, and $2,426.93 in additional expenses incurred after the filing of plaintiffs’ application for fees. Under § 4 of the Clayton Act, plaintiffs are entitled to “the cost of suit, including a reasonable attorney’s fee.” In West Virginia University Hospitals, Inc. v. Casey, 499 U.S. 83, 111 S.Ct. 1138, 113 L.Ed.2d 68 (1991), the Supreme Court held that an applicant seeking fees under § 1988 — which awards “a reasonable attorney’s fee as part of the costs”— may recover- only those out-of-pocket expenses that are either customary elements of an “attorney’s fee,” or are expressly shifted by statute. See id., 499 U.S. at 86-88, 111 S.Ct. at 1141. Because of the close similarity between the language of § 1988 and of § 4 of the Clayton Act, this court will apply West Virginia’s strictures to this case. ■ A. Costs Traditionally Included in an “Attorney’s Fee’’ Plaintiffs’ out-of-pocket costs for telephone, telecopier, air and local couriers, postage, photocopying, WESTLAW research, secretarial overtime, and counsels’ travel expenses are routinely billed to fee-paying clients, and thus are all compensable as part of a reasonable attorney’s fee. See Jenkins, 491 U.S. at 285, 109 S.Ct. at 2470 (including the cost of secretaries and messengers in a reasonable attorney’s fee); In re Oliver L. North (Shultz Fee Application), 8 F.3d 847, 851-52 (D.C.Cir.1993) (per curiam) (including travel and travel-related food and lodging expenses as part of a “reasonable attorney’s fee,” if expenses are reasonable and well-documented); In the Matter of Continental Illinois Securities Litigation, 962 F.2d 566, 570 (7th Cir.1992) (awarding reasonably incurred computer-assisted research expenses as part of an attorney’s fee); Northcross v. Board of Ed. of Memphis City Schools, 611 F.2d 624, 639 (6th Cir.1979), cert. denied, 447 U.S. 911, 100 S.Ct. 2999, 64 L.Ed.2d 862 (1980) (permitting recovery of costs of photocopying, travel, and telephone calls as elements of an attorney’s fee). Defendants have conceded that the amounts claimed for each of these expenses are reasonable. (Defs.’ Opp’n, at 4 n. 3.)" }, { "docid": "12616952", "title": "", "text": "brought under Clayton Act); Brown v. Pro Football, Inc., 839 F.Supp. 905, 916 (D.D.C.1993), rev’d on other grounds, 50 F.3d 1041 (D.C.Cir.1995) (finding in suit brought under the Clayton Act that “Plaintiffs out-of-pocket costs for telephone ... and counsel’s travel expenses are routinely billed to fee-paying clients, and thus are all compensa-ble as part of a reasonable attorney’s fee,” and making a separate award of costs under 28 U.S.C. § 1920). Plaintiffs documentation of its “costs” include a table listing the date, description and amount of each expenditure. Pl.’s Reply Ex. 9 at 00063. The table also includes a column titled “Name” under which the names of attorneys and “Omega,” a travel agency, are listed. Id.; id. at 000100. Following this ledger are over 100 pages consisting of receipts presumably documenting the expenses on the ledger. See generally id. Otherwise, the Court is provided no explanation regarding these expenses other than conclusory statements that the expenses should be awarded. See PL’s Mem at 35; PL’s Reply at 23-24. Plaintiff, as the petitioner, “bears the burden of establishing entitlement to an award and documenting the appropriate hours expended and hourly rates.” Hensley, 461 U.S. at 437, 103 S.Ct. 1933; Covington v. District of Columbia, 57 F.3d 1101, 1107 (D.C.Cir.1995). As was the case with Plaintiffs claims for attorneys’ time, discussed supra, many of Plaintiffs descriptions of its “costs” are wholly deficient. Many of Plaintiffs expenses are described merely as “Travel Expenses for Year,” “Phone Calls & Related Expenses,” “Phone Calls,” and “Airfare.” PL’s Reply Ex. 9 at 00063. The Court declines to assume Plaintiffs burden and conduct a receipt-by-receipt accounting in an effort to deduce the purpose of these expenses. See Copeland III, 641 F.2d at 903 (“[A]n appellate court does not ‘intend that a district court, in setting an attorneys’ fee, become enmeshed in a meticulous analysis of every detailed facet of the professional representation.’ ”) (quoting Lindy Bros. Builders, Inc. v. Am. Radiator & Standard Sanitary Co., 540 F.2d 102 (3d Cir.1976) (en banc)). Following this Circuit’s approach, the Court shall eliminate the expenses claimed for these wholly deficient" }, { "docid": "21592182", "title": "", "text": "the court’s calculation. The risk is too great that a multiple-of-damages approach will subsume, or override, or erode other relevant considerations, or place undue tensions upon them. Use of the multiplier as a sole or dominant criterion is inconsistent with the Supreme Court’s rejection of proportionality of damages as a basis for a fee award. It tends to diminish the public benefit, to make the fee depend upon substantiality of monetary relief, and to reduce the inquiry to the arithmetical exercise rejected by the Supreme Court in Evans v. Jeff D., 475 U.S. at 736, 106 S.Ct. at 1542. The district court must revisit the amount of the fee award, stripped of proportionality of damages to award. III. Other challenges Plaintiffs challenge the fee award on other grounds. They contend the district court erred in using Macon, Georgia as the relevant market for the hourly rate to be used in the computation of the lodestar figure. The rate of attorney’s fees is that of the place where the case is filed. See Maceira v. Pagan, 698 F.2d 38, 40 (1st Cir.1983). The case, although transferred in 1985 to a judge of the Northern District, based in Atlanta, was initially filed in Macon. Plaintiffs assert Atlanta was the appropriate market because there were no lawyers in Macon with the expertise to handle their case. The district court did not err in focusing on whether there were attorneys in Macon with the ability to handle plaintiffs’ individual claims rather than the proposed class action. Nor did it err in finding that plaintiffs did not meet their burden of showing a lack of Macon lawyers willing or able to handle their individual claims. The district court did not err in applying a $100 hourly rate, at the lowest end of the Macon lawyer’s rates, which it determined to be $100 to $150. The court denied telephone and travel expenses on the ground that 28 U.S.C. § 1920 does not provide for their recovery. The government acknowledges that this was error, and the court should revisit this point. Long distance telephone charges and travel" }, { "docid": "22330035", "title": "", "text": "The district court must determine whether law clerk and paralegal services are normally part of the office overhead in the area, and thus already reflected in the normal area billing rate the court has established in the case. If those services are not reflected in the area rate, the court may award them separately as part of the fee for legal services. The court should scrutinize the reported hours and the suggested rates in the same manner it scrutinizes lawyer time and rates. Other Expenses as Fees Items that are normally itemized and billed in addition to the hourly rate should be included in fee allowances in civil rights cases if reasonable in amount. However, because there is no need to employ counsel from outside the area in most cases, we do not think travel expenses for such counsel between their offices and the city in which the litigation is conducted should be reimbursed. Departure from this rule should be made in unusual cases only. Thus, the district court properly disallowed travel costs to and from Denver for counsel based in Washington, D.C. The district court properly allowed reimbursement for the expense of travel between Denver and the Canon City prison, given its finding that such costs would normally be billed to a private client. Although some firms separately itemize and bill long distance telephone charges, copying costs, and some other expenses, these kinds of expenses should be allowed as fees only if such expenses are usually charged separately in the area. In the instant case, we believe the district court properly found such costs are normally absorbed as part of the firms’ overhead, and correctly refused reimbursement for photocopying, postage, telephone, books, and overtime secretarial work. The district court reimbursed the plaintiffs for expert witness fees. Subsection 3 of 28 U.S.C. § 1920 allows fees to be awarded for “witnesses” and subsection 6 allows “[cjompensation of court appointed experts.” The law in this Circuit is clear, however, that expert witness fees are not allowed under § 1920, CleveRock Energy Corp. v. Trepel, 609 F.2d 1358, 1363 (10th Cir.1979), cert." }, { "docid": "10433180", "title": "", "text": "court is which of these costs Congress has authorized this court to shift to defendants. In § 1988, Congress has authorized the shifting of only those out-of-pocket costs that are customary elements of an “attorney’s fee”; in 28 U.S.C. § 1920, Congress has authorized the shifting of other out-of-pocket costs. This court may shift only those costs that fit into one of these two categories. The former , category — encompassing all customary elements of an “attorney’s fee”— includes all those out-of-pocket expenses that have “traditionally been included in calculations of the lawyers’ hourly rates,” including those out-of-pocket costs that many lawyers have recently removed from their hourly rates and now bill separately to the client. Other statutes, notably 28 U.S.C. § 1920, determine which items of expense are includ ed in the latter category. These include “those costs incurred by a party to be paid to a third party, not the attorney for the case, ... including], among others, docket fees, investigation expenses, deposition expenses, witness expenses, and the- costs of charts and maps.” Northcross, 611 F.2d at 639. A. Costs Incurred by Plaintiffs’ Counsel Plaintiffs claim reimbursement for two sets of expenses incurred in this litigation: costs their counsel incurred, and costs plaintiffs themselves incurred. Under the first heading, plaintiffs claim compensation for costs of deposition transcripts, subpoenas, photocopying, postage, complaint filing fee, long distance telephone calls, messenger service, and local transportation and parking that their counsel incurred litigating Sexcius. 1. Costs Traditionally Included in an “Attorney’s Fee” Reasonable photocopying, postage, long distance telephone, messenger, and transportation and parking costs are customarily considered part of a reasonable “attorney’s fee.” If plaintiffs’ request for these costs are sufficiently well-documented and reasonable, plaintiffs may recover these out-of-pocket expenses pursuant to the statutory authority of § 1988 to shift “attorney’s fees.” Defendants have . conceded that the amounts plaintiffs have claimed in photocopying, postage, and long distance telephone calls costs are “reasonable expenses.” (Defs.’ Opp’n, at 25.) However, defendants do -challenge plaintiffs, counsels’ travel expenses and messenger service expenses as insufficiently documented. (Defs.’ Opp’n, at 26.) Defendants ■ are correct that" }, { "docid": "4242634", "title": "", "text": "Fire District. With respect to their one unsuccessful intentional discrimination claim, it arose from the same facts and was clearly related to the adverse impact claim. Therefore, the Court finds that no additional reduction is warranted based on plaintiffs’ lack of success of all claims against the Fire District. See Shaw v. Greenwich Anesthesiology Assocs., 200 F.Supp.2d at 115-16; see also C.G. v. New Haven Board of Educ., 988 F.Supp. 60, 67 (D.Conn.1997) (holding that the fact that the parties resolved one or more issues through voluntary agreement rather than through adjudication did not preclude plaintiffs claiming attorney’s fees as the prevailing party). III. Costs Plaintiffs have sought to recover a total of $20,102.48 in costs, which they have allocated between the City ($11,435.12) and the Fire District ($8,667.36). These costs are comprised of the following: $6,837.40 for deposition transcripts, $841.77 for service and witness fees, $4,013.16 for trial transcripts, $3,247.55 for Westlaw research, $2,894.40 in other expenses (copying services, postage, Federal Express charges, costs of publications, travel expenses, courier services, meals/parking), and $2,268.20 for their expert’s expenses. A. Taxable Costs Both defendants have objected to these requested costs on the ground that they include items which are not taxable costs under 28 U.S.C. § 1920 and the Local Rules of this District, D. Conn. L. Civ. R. 17. However, in awarding fees and costs under § 1988, this Court is not limited to taxable costs. “[A]ttorney’s fees awards include those reasonable out-of-pocket expenses incurred by attorneys and ordinarily charted to their clients.” LeBlanc-Sternberg v. Fletcher, 143 F.3d at 763 (internal citations and quotations omitted). “Identifiable, out-of-pocket disbursements for items such as photocopying, travel and telephone costs are generally taxable under § 1988 and are often distinguished from nonrecoverable routine office overhead, which must normally be absorbed within the attorney’s hourly rate.” Aston v. Secretary of Health & Human Services, 808 F.2d 9, 12 (2d Cir.1986); Lambert v. Fulton County, 151 F.Supp.2d at 1370 (“In short, with the exception of routine office overhead normally absorbed by the practicing attorney, all reasonable expenses incurred in case preparation, during the course of" }, { "docid": "7113899", "title": "", "text": "13 L.Ed.2d 248 (1964). Rather, costs awarded under this rule are limited to the list of items set forth in 28 U.S.C. § 1920 and related statutes. Crawford Fitting Co. v. J.T. Gibbons, Inc., 482 U.S. 437, 445, 107 S.Ct. 2494, 96 L.Ed.2d 385 (1987). As indicated, the defendants have not adequately separated the costs recoverable under § 1920 and either § 2000e-5(k) or § 1927. Consequently, the majority of expenses for which they seek reimbursement are not compensable, under § 1920. Specifically, facsimiles, long distance telephone calls, couriers, express mail, computerized legal research, attorney travel and lodging, postage, search services, office supplies, attorney meals, secretarial services, mediation and expert witness fees (see Docs. 175, 177, 179, 183) are not compensable under § 1920 because these expenses are not enumerated in the statute. See Duckworth v. Whisenant, supra, 97 F,3d at 1399 (postage, parking, computerized legal research and expert witness fees are not compensable under § 1920); Desisto College, Inc. v. Town of Howey-in-the-Hills, 718 F.Supp. 906, 914 (M.D.Fla.1981), aff'd, 914 F.2d 267 (11th Cir.1990) (express mail, facsimiles and long distance telephone calls are not compensable under § 1920); Tang How v. Edward J. Gerrits, Inc., 756 F.Supp. 1540, 1545 (S.D.Fla.1991), aff'd, 961 F.2d 174 (11th Cir.1992) (attorney’s travel expenses are not recoverable under § 1920); Avirgan v. Hull, 705 F.Supp. 1544, 1546 (S.D.Fla.1989), aff'd, 932 F.2d 1572 (11th Cir.1991) (courier expenses are not a recoverable cost); George v. GTE Directories Corp., 114 F.Supp.2d 1281, 1300 (M.D.Fla.2000) (mediation expenses not compensable un der § 1920); Corsair Asset Management, Inc. v. Moskovitz, 142 F.R.D. 347, 352 (N.D.Ga.1992) (secretarial overtime charges are properly considered part of overhead). After excluding these non-taxable costs, there remain for consideration expenses of photocopying, service of process, witness fees, and court reporter fees. These types of expenses, when adequately described and documented, are compensable under § 1920. See 28 U.S.C. § 1920(l)-(4). The plaintiff objects to reimbursement for the bulk of these costs, primarily on the grounds that they were incurred before the pre-trial conference and/or they lack specificity (Doc. 186, Ex. 2). The plaintiffs objection to" }, { "docid": "19024640", "title": "", "text": "in photocopying charges. Defendants, however, have provided no information revealing the purpose or use of the photocopies. Unsubstantiated claims that particular documents were necessary are insufficient to permit recovery. Id. Defendants must come forward with evidence showing the nature of the documents copied, including how the copies were used or intended to be used in the case. Id. The Court DENIES Defendants’ Motion for Costs in regard to photocopying costs. Defendants, however, may renew their motion for these expenses by filing a supplemental bill of costs. The bill of costs should explain what types of documents were copied, who was in possession of the originals of these documents, for what purpose were these documents copied, and why these copies were necessary in this case. Corsair Asset Management, Inc. v. Moskovitz, 142 F.R.D. 347, 352 (N.D.Ga.1992) (Forrester, J.). B. Computer Research Defendants’ bill of costs seeks $1268.92 for computer assisted legal research. Because 28 U.S.C. § 1920 does not provide for the recovery of these costs, the Court DENIES Defendants’ Motion for Costs in regard to computer assisted legal research. Moskovitz, 142 F.R.D. at 353 (citations omitted). The Court notes that Defendants cite in support of their motion the Court’s holding in O’Donnell v. Georgia Osteopathic Hosp., Inc., 99 F.R.D. 578, 581-581 (N.D.Ga.1983) (Hall, J.). In O’Donnell, the Court awarded as costs computerized legal research fees in a private action for damages under the Age Discrimination in Employment Act of 1967, 29 U.S.C. §§ 621-634. O’Donnell is distinguishable from the case sub judice, in which Defendants seek recovery pursuant to 28 U.S.C. § 1920. C. Other Costs Defendants seek recovery costs attributable to long distance telephone calls, postage, and courier services. Because 28 U.S.C. § 1920 does not provide for the recovery of these costs, the Court DENIES Defendants’ Motion for Costs in regard to long distance telephone calls, postage, and courier services. Moskovitz, 142 F.R.D. at 351. CONCLUSION The Court DENIES Defendants’ Motion for Costs [20-1]. Defendants may renew their request for photocopying expenses by filing a supplemental bill of costs. The bill of costs should explain what types of" }, { "docid": "10433181", "title": "", "text": "Northcross, 611 F.2d at 639. A. Costs Incurred by Plaintiffs’ Counsel Plaintiffs claim reimbursement for two sets of expenses incurred in this litigation: costs their counsel incurred, and costs plaintiffs themselves incurred. Under the first heading, plaintiffs claim compensation for costs of deposition transcripts, subpoenas, photocopying, postage, complaint filing fee, long distance telephone calls, messenger service, and local transportation and parking that their counsel incurred litigating Sexcius. 1. Costs Traditionally Included in an “Attorney’s Fee” Reasonable photocopying, postage, long distance telephone, messenger, and transportation and parking costs are customarily considered part of a reasonable “attorney’s fee.” If plaintiffs’ request for these costs are sufficiently well-documented and reasonable, plaintiffs may recover these out-of-pocket expenses pursuant to the statutory authority of § 1988 to shift “attorney’s fees.” Defendants have . conceded that the amounts plaintiffs have claimed in photocopying, postage, and long distance telephone calls costs are “reasonable expenses.” (Defs.’ Opp’n, at 25.) However, defendants do -challenge plaintiffs, counsels’ travel expenses and messenger service expenses as insufficiently documented. (Defs.’ Opp’n, at 26.) Defendants ■ are correct that plaintiffs’ original request for messenger service costs was too high. However, in their reply memorandum, plaintiffs eliminated all hourly messenger charges and requested compensation for only the remaining standard fees. (Reply Ex. 10.) These standard fee charges are well-documented and reasonable, and .plaintiffs may recover them. Similarly, in their application, plaintiffs claimed $123.60 for their counsels’ local transportation and parking costs. After defendants challenged this amount as unsupported, plaintiffs cut from their request all but the well-documented costs, requesting only $108.50 in charges listed by date and amount., Plaintiffs may recover this reduced amount. 2. Costp Shifted by § 1920 The cbsts' associated with deposition transcripts are clearly compensable under § 1920(4), if the costs are reasonable, the expenditures well-documented, and the depositions “necessarily obtained for use in the case.” 28 U.S.C. § 1920(4). See Robertson v. McCloskey, 121 F.R.D. 131, 134 (D.D.C.1988) (“costs associated -with taking depositions” are taxed under § 1920(4) as transcripts “necessarily obtained”). Because defendants have conceded that plaintiffs’ deposition transcript costs are “reasonable,” and because the costs of the deposition" }, { "docid": "22854366", "title": "", "text": "and 130.2 disallowed. The court also disallowed the 20.2 hours claimed by Layton, finding that he was not sufficiently involved in the case to warrant compensation. In addition to attorney’s fees, the Consent Decree provided for compensation for costs and expenses. The district court determined the expense award according to what would have been proper under 28 U.S.C. § 1920 and Fed.R.Civ.P. 54(d) if the case had been tried. The court did not allow expenses for investigative charges, telephone charges, copying charges, postage charges, or attorney travel charges “because, if the attorneys are adequately compensated, those expenses are absorbed in the overhead and compensated for by the reasonable fee.” Consequently, of the $5,683.52 in costs and expenses requested, the court allowed $4,028.10. Finally, the court found that Daly and Street were not entitled to additional compensation under the contingency fee agreement because such compensation would constitute a “windfall.” Daly and Street now appeal the district court’s order. They argue that the district court’s determination of a reasonable rate was clearly erroneous, that the court abused its discretion in failing to adjust the fee award upward to account for excellent results, in disallowing some of Street’s hours, and in disallowing certain hours spent by both attorneys in preparing the motion for fees. They further argue that the court erred in disallowing litigation expenses and in refusing to order additional compensation under the contingency fee contract between Starnes and her lawyers. II. The Civil Rights Attorney’s Fees Awards Act, 42 U.S.C. § 1988, provides that in federal civil rights actions, “the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney’s fee as part of the costs.” As the Supreme Court has recognized, “[t]he purpose of § 1988 is to ensure 'effective access to the judicial process’ for persons with civil rights grievances.” Hensley v. Eckerkart, 461 U.S. 424, 429, 103 S.Ct. 1933, 1937, 76 L.Ed.2d 40 (1983) (quoting H.R.Rep. No. 94-1558, 94th Cong., 2d Sess., 1 (1976)). Congress anticipated that § 1988 would further this end through attracting competent counsel to civil rights cases." }, { "docid": "9377465", "title": "", "text": "law. Sunnen, 333 U.S. at 599, 68 S.Ct. at 720. At the time of the award in Upton v. Falck (indeed, at the time of the initial decision in this case) many judges believed it appropriate to award fees in civil rights cases at a higher rate than the lawyer charges to paying clients in light of the risk of nonpayment (the lawyer is compensated only if his client wins the case). Burlington v. Dague, — U.S. -, 112 S.Ct. 2638, 120 L.Ed.2d 449 (1992), holds that risk multipliers are not appropriate in fee-shifting eases, and our prior opinion concludes not only that Dague applies to § 1988 but also that it forbids the use of an especially high hourly rate in civil rights cases. 977 F.2d at 1105. In other words, we held that the district court’s rate-computation methodology was le- gaily erroneous in light of Dague. That the judge made the same mistake in an earlier case does not justify repetition. The district court concluded on remand that Rawles devoted 262.85 hours to representation in the district court, and that 50.15 hours of paralegal time at $55 per hour also were reasonably dedicated to the litigation. Defendants do not contest these calculations. The court concluded that work on appeal required 61.08 hours of Rawles’s time and 51.45 hours of paralegal time; the district court held that only a third of these hours are compensable because the plaintiffs recovery ($3,700) was so low compared with the amount of legal time invested. See Farrar v. Hobby, — U.S. -, -, 113 S.Ct. 566, 574-75, 121 L.Ed.2d 494 (1992); Ustrak v. Fairman, 851 F.2d 983, 990 (7th Cir.1988). Defendants do not contest the calculation of hours, and plaintiff does not appeal from the reduction by two thirds. The court concluded that Barrow is entitled to $2,198.61 for expenses; again this is uncontested. Hours the district court included for proceedings on remand are no longer compensable, because in light of this decision Barrow did not prevail on remand. All that remains is the selection of the appropriate hourly rate for Rawles’s time." }, { "docid": "13452587", "title": "", "text": "Cir.1987). In applying this standard, the Eleventh Circuit and district courts in this Circuit uniformly have allowed recovery of such expenses as photocopying, postage, long distance phone calls, necessary travel, and on-line research. Cullens v. Georgia Dept. of Transp., 29 F.3d 1489, 1494 (11th Cir.1994) (“The [district] court denied telephone and travel expenses on the ground that 28 U.S.C. § 1920 does not provide for their recovery. The government acknowledges that this was error ... ”), Dowdell, 698 F.2d at 1192; Mallory v. Harkness, 923 F.Supp. 1546, 1557 (S.D.Fla.1996); Cherry, 601 F.Supp. at 81. The policy underlying this broad recovery of expenses has been stated by the Eleventh Circuit as follows: “Reasonable attorneys’ fees under the Act must include reasonable expenses because attorneys’ fees and expenses are inseparably intertwined as equally vital components of the costs of litigation. The factually complex and protracted nature of civil rights litigation frequently makes it necessary to make sizeable out-of-pocket expenditures which may be as essential to success as the intellectual skills of the attorneys. If these costs are not taxable, and the client, as is often the case, cannot afford to pay for them, they must be borne by counsel, reducing the fees award correspondingly.” Dowdell, 698 F.2d at 1190. Fulton County challenges only one item that Plaintiff has listed as a nontaxable expense: Plaintiffs expert fees. Fulton County contends that expert fees are not recoverable in a Section 1983 case. The Supreme Court in Crawford Fitting Company v. J.T. Gibbons, Inc., 482 U.S. 437, 445, 107 S.Ct. 2494, 96 L.Ed.2d 385 (1987), held that expert fees cannot be awarded to a prevailing plaintiff absent explicit Congressional authority because the general costs statutes, 28 U.S.C. §§ 1821 and 1920, do not allow party experts’ costs to be taxed to the losing party. Crawford Fitting, 482 U.S. at 445, 107 S.Ct. 2494. Following the precedent of Crawford Fitting, the Supreme Court four years later specifically held that expert witness fees cannot be awarded to prevailing parties in a Section 1983 action because Section 1988, which governs attorneys’ fees in Section 1988 actions, does not" }, { "docid": "23509162", "title": "", "text": "Id. In the context of a 42 U.S.C. § 1988 action in which a plaintiff was awarded only nominal damages, the Supreme Court explained that “to qualify as a prevailing party, a civil rights plaintiff must obtain at least some relief on the merits of his claim.” Farrar v. Hobby, 506 U.S. 103, 113 S.Ct. 566, 573, 121 L.Ed.2d 494 (1992). As detailed above, we affirm the district court’s judgment in favor of the Appellees as to several of their claims. These plaintiffs have obtained “at least some relief on the merits” and thus qualify as prevailing parties. We have held that liquidated damages must be awarded in an amount equal to the back pay award. In light of this holding, we instruct the district court to consider on remand what, if any, adjustment should be made to the amount of the legal fees award. 10. Expert Witness Fees The Appellees seek to add their expert witness fees to the fees and costs award. The Supreme Court has explained that the interrelation of Fed.R.Civ.P. 54(d)(1) (relating to costs other than attorneys’ fees), 28 U.S.C. § 1920 (listing “costs” that may be taxed by a federal court), and 28 U.S.C. § 1821 (authorizing per diem and travel expenses for witnesses) means that expert witness fees in excess of the standard witness per diem and travel allowances cannot be taxed in the absence of express statutory authority to the contrary. Crawford Fitting Co. v. J.T. Gibbons, Inc., 482 U.S. 437, 107 S.Ct. 2494, 2496, 96 L.Ed.2d 385 (1987); see also Leroy v. Houston, 831 F.2d 576, 584 (5th Cir.1987) (applying Crawford to fee-shifting provision of the Voting Rights Act). There is no express statutory authority in the ADEA or the FLSA to award expert witness fees for other than court-appointed expert witnesses. The district court did not err in refusing to award the Plaintiffs expert witness fees. 11. Delay Enhancement Following the district court’s judgment on the fees and costs request, the Appel-lees moved for a delay enhancement in a motion to alter or amend the judgment filed pursuant to Fed.R.Civ.P. 59(e)." }, { "docid": "19024641", "title": "", "text": "computer assisted legal research. Moskovitz, 142 F.R.D. at 353 (citations omitted). The Court notes that Defendants cite in support of their motion the Court’s holding in O’Donnell v. Georgia Osteopathic Hosp., Inc., 99 F.R.D. 578, 581-581 (N.D.Ga.1983) (Hall, J.). In O’Donnell, the Court awarded as costs computerized legal research fees in a private action for damages under the Age Discrimination in Employment Act of 1967, 29 U.S.C. §§ 621-634. O’Donnell is distinguishable from the case sub judice, in which Defendants seek recovery pursuant to 28 U.S.C. § 1920. C. Other Costs Defendants seek recovery costs attributable to long distance telephone calls, postage, and courier services. Because 28 U.S.C. § 1920 does not provide for the recovery of these costs, the Court DENIES Defendants’ Motion for Costs in regard to long distance telephone calls, postage, and courier services. Moskovitz, 142 F.R.D. at 351. CONCLUSION The Court DENIES Defendants’ Motion for Costs [20-1]. Defendants may renew their request for photocopying expenses by filing a supplemental bill of costs. The bill of costs should explain what types of documents were copied, who was in possession of the originals of these documents, for what purpose were these documents copied, and why these copies were necessary in this case. So ORDERED. . Failure to file a response to a motion indicates that there is no opposition to the motion. L.R. 220-1 (b). . Additionally, in O’Donnell, the Court allowed computer expenses to be taxed as a cost because the Court earlier had held that the plaintiff was entitled to recover attorney's fees. The Court found that requiring the plaintiff to amend and resubmit her claim for computer expenses as a motion for attorney's fees was circuitous. Instead, the Court chose to allow recovery as a cost, taking care to ensure that plaintiffs request for attorney’s fees did not include computer research expenses. The Court did not adopt an inflexible rule establishing that computer research expenses are recoverable as a cost." }, { "docid": "7113900", "title": "", "text": "(express mail, facsimiles and long distance telephone calls are not compensable under § 1920); Tang How v. Edward J. Gerrits, Inc., 756 F.Supp. 1540, 1545 (S.D.Fla.1991), aff'd, 961 F.2d 174 (11th Cir.1992) (attorney’s travel expenses are not recoverable under § 1920); Avirgan v. Hull, 705 F.Supp. 1544, 1546 (S.D.Fla.1989), aff'd, 932 F.2d 1572 (11th Cir.1991) (courier expenses are not a recoverable cost); George v. GTE Directories Corp., 114 F.Supp.2d 1281, 1300 (M.D.Fla.2000) (mediation expenses not compensable un der § 1920); Corsair Asset Management, Inc. v. Moskovitz, 142 F.R.D. 347, 352 (N.D.Ga.1992) (secretarial overtime charges are properly considered part of overhead). After excluding these non-taxable costs, there remain for consideration expenses of photocopying, service of process, witness fees, and court reporter fees. These types of expenses, when adequately described and documented, are compensable under § 1920. See 28 U.S.C. § 1920(l)-(4). The plaintiff objects to reimbursement for the bulk of these costs, primarily on the grounds that they were incurred before the pre-trial conference and/or they lack specificity (Doc. 186, Ex. 2). The plaintiffs objection to reimbursement of costs incurred prior to the pre-trial conference lacks merit because, under Rule 54(d)(1), the losing party is responsible for such costs from the inception of the case. On the other hand, the plaintiffs contention that the descriptions of several expenses lack specificity is well-taken (id.). In this connection, the plaintiff argues that several of the costs are so vague that she cannot discern whether they are compen-sable under § 1920 (id.). The plaintiff, in particular, has objected to reimbursement of approximately $4,300 in photocopying expenses for lack of specificity. Under § 1920(4), photocopying “necessarily obtained for use in the case” is compensable. In making this determination, “the court should consider whether the prevailing party could have reasonably believed that it was necessary to copy the papers at issue.” United States Equal Employment Opportunity Commission v. W & O. Inc., 213 F.3d 600, 623 (11th Cir.2000). The burden of establishing entitlement to photocopying expenses lies with the prevailing party. See Desisto College, Inc. v. Town of Howey-in-the-Hills, supra, 718 F.Supp. at 910, n. 1." } ]

[ { "docid": "9816239", "title": "", "text": "proof upon the defendant. The burden of proof must be on the state throughout; not sometimes on the state, and sometimes on the defendant, (emphasis ours). In a habeas corpus case decided this year, we held that incorrect instructions on the burden of proof mandated a new trial. In Dunn v. Perrin, 570 F.2d 21, 24 (1978), we stated: In United States v. Flannery, 451 F.2d 880, 883 (1st Cir. 1971), we condemned virtually that exact wording. Although the existence of other reversible error in Flannery made it unnecessary for us to resolve the constitutional implications of such a charge, we do so now. That definition of reasonable doubt was the exact inverse of what it should have been. See United States v. Magnano, 543 F.2d 431, 436 (2d Cir. 1976); Bernstein v. United States, 234 F.2d 475, 486 n. 8 (5th Cir. 1956). Instead of requiring the government to prove guilt, it called upon petitioners to establish doubt in the jurors’ minds. That is an inescapable violation of In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1969). (emphasis ours). The government does not dispute that the court’s instructions were erroneous, but asserts that the charge read in its entirety erased the incorrect instructions, or at least reduced them to harmless error proportions. We agree that the instructions must be reviewed in the context of the overall charge. Cupp v. Naughten, supra, 414 U.S. at 146-147, 94 S.Ct. 396; United States v. Park, 421 U.S. 658, 674, 95 S.Ct. 1903, 44 L.Ed.2d 489 (1975); Boyd v. United States, 271 U.S. 104, 107, 46 S.Ct. 442, 70 L.Ed. 857 (1926). It is clear that, aside from the offending paragraph, the charge did state the burden of proof standard correctly. But the instruction that the defendant’s evidence “has no greater function than simply to raise a reasonable doubt in your minds, if it does,” came at the outset of the charge and formed an integral part of the instructions on the burden of proof. This was not an obvious misstatement or the careless use of words. The" } ]

[ { "docid": "2498270", "title": "", "text": "been done intentionally, without justification or excuse, “there is nothing to rebut the natural presumption.” (Emphasis added.) As the district court, 460 F.Supp. at 1219-20, and the Massachusetts Supreme Judicial Court, 377 N.E.2d at 921 — 23, both found, this simply allowed the jury to make a reasonable inference of malice if it concluded that Gagne had acted intentionally and without justification or mitigation, i.e., intentionally and, for present purposes, not in self-defense. We cannot accept Gagne’s position, that the instruction conveyed “that the law itself raises the inference of malice.” It was clear that malice was an element for the Commonwealth to prove beyond a reasonable doubt. The judgment of the district court denying the writ of habeas corpus is affirmed. . Gagne failed to object to the instruction on these grounds, but the Massachusetts Supreme Judicial Court has held that the possibility of review was not lost. Gagne v. Commonwealth, - Mass. -, 377 N.E.2d 919, 921 (1978); Commonwealth v. Stokes,-Mass.-, 374 N.E.2d 87 (1978). . While Mullaney v. Wilbur, 421 U.S. 684, 95 S.Ct. 1881 (1975), involved only the defense of provocation, and the Supreme Court has not actually decided whether a state may treat self-defense as an affirmative defense that it need not negative beyond a reasonable doubt, compare Hankerson v. North Carolina, 432 U.S. 233, 240 n. 6, 97 S.Ct. 2339, 53 L.Ed.2d 306 (1977) with Patterson v. New York, 432 U.S. 197, 97 S.Ct. 2319, 53 L.Ed.2d 281 (1977) (provocation may be treated as affirmative defense for defendant to prove by preponderance), respondents do not claim that self-defense in Massachusetts is not subject to the requirements of Mullaney. In 1978, several years after the present case -was tried, the Massachusetts Supreme Judicial Court expressly ruled that the absence of self-defense was required to be proven beyond a reasonable doubt by the prosecution, Commonwealth v. Stokes, - Mass. -, 374 N.E.2d 87, 93. The Maine courts had so held even prior to Mullaney, see Mullaney, 421 U.S. at 702, 95 S.Ct. 1881. . We reject Gagne’s objection to the Massachusetts rule that, although Mullaney is" }, { "docid": "5590686", "title": "", "text": "under advisement: This is not like Wilbur v. Mullaney, 496 F.2d 1303 (1st Cir. 1974), cert. granted 419 U.S. 823, 95 S.Ct. 39, 42 L.Ed.2d 47 (1974) where arguably the burden was placed on the defendant to prove the elements of mitigation. Here, the prosecution began with and retained, the burden of proving every element of the offense beyond a reasonable doubt. Id., n. 2. The court in Gagne also rejected defendant’s contention that the judge erred in charging the jury that the law infers malice from the use of a deadly weapon. It concluded that “[t]he jury were carefully and properly instructed on both manslaughter and the inference of malice.” 326 N.E.2d at 910. While petitioner’s allegation dealing with the issue of malice does not appear to be frivolous, and this Court recognizes that in that regard there may well have been a denial of due process in his case, I feel that I am unable at this time to reach the merits of his claim. It is clear under the law that this Court cannot grant a petition for writ of habeas corpus “unless it appears that the applicant has exhausted the remedies available in the courts of the State.” 28 U.S.C. § 2254(b). After a review of the record, it appears as if petitioner herein has not exhausted those remedies. His conviction was affirmed in Commonwealth v. Gagne on April 28, 1975. His motion for rehearing was filed on May 20, 1975. In that motion, petitioner asserted that the April 28, 1975 decision was in direct conflict with In re Winship and Wilbur v. Mullaney. At that time, although certiorari had been granted in Mullaney, the case was still pending before the Supreme Court. Petitioner’s motion for rehearing was denied by the Supreme Judicial Court on May 28, 1975. It was not until June 9,1975 that the Supreme Court issued the Mullaney decision. Thus, although the Supreme Judicial Court was aware of the issues in Mullaney when it considered Gagne’s petition for rehearing, it did not have the opportunity to consider those issues in light of the" }, { "docid": "121627", "title": "", "text": "sentences in Judge Platt’s charge to the jury, when considered separately, may be interpreted to indicate that no inducement need be shown and that the government may satisfy the statute by proving only that benefits were passively received by the official with knowledge that they were bestowed on him because of his official position. Extrapolating from these isolat ed statements, the court suggests that the instruction would criminalize any gift to a public official, however small or innocent, and that it must therefore be rejected. The majority’s analysis suffers from a deficiency, in my view fatal; it ignores still other portions of the instructions which required the jury, before it could convict, to find that the benefits were induced by the contractors’ belief that they would forestall any harmful official action by O’Grady. We are not permitted to disregard these qualifications which were expressly integrated in the charge; we are required to read Judge Platt’s instructions as a whole. In United States v. Park, 421 U.S. 658, 674-75, 95 S.Ct. 1903, 1912-13, 44 L.Ed.2d 489 (1975), the Supreme Court stated: “Turning to the jury charge in this case, it is of course arguable that isolated parts can be read as intimating that a finding of guilt could be predicated solely on respondent’s corporate position. But this is not the way we review jury instructions, because ‘a single instruction to a jury may not be judged in artificial isolation, but must be viewed in the context of the overall charge.’ Cupp v. Naughten, 414 U.S. 141, 146-47, 94 S.Ct. 396, 400-01, 38 L.Ed.2d 368 (1973). See Boyd v. United States, 271 U.S. 104, 107, 46 S.Ct. 442, 443, 70 L.Ed. 857 (1926). j{e $ sfc sjc $ “Moreover, in reviewing jury instructions, our task is also to view the charge itself as part of the whole trial. ‘Often isolated statements taken from the charge, seemingly prejudicial on their face, are not so when considered in the context of the entire record of the trial. ’ United States v. Birnbaum, 373 F.2d 250, 257 (CA2), cert. denied, 389 U.S. 837 [88 S.Ct." }, { "docid": "23383691", "title": "", "text": "up to them not to him to determine the facts of the case. Similarly, in context, the other two statements helped to make clear to the jury that the issue in the case was not whether defendant was in possession of the suitcase — he did not deny it. Rather, the issue was whether he knew that he was in possession of cocaine within the suitcase. The judge explained to the jury that they were to determine whether any possession by defendant of cocaine was knowing and intentional. After reviewing the charge as a whole, see United States v. Park, 421 U.S. 658, 674, 95 S.Ct. 1903, 1912, 44 L.Ed.2d 489 (1975); United States v. Harrigan, 586 F.2d 860, 863-64 (1st Cir. 1978); United States v. Nashawaty, 571 F.2d 71, 76 (1st Cir. 1978); Tzimopoulos v. United States, 554 F.2d 1216, 1218 (1st Cir.), cert. denied, 434 U.S. 851, 98 S.Ct. 164, 54 L.Ed.2d 120 (1977), we find that it was perfectly proper. For these reasons, the judgment of the district court is affirmed. Affirmed. . (a) Except as authorized by this subchapter it shall be unlawful for any person knowingly or intentionally— (1) to manufacture, distribute, or dispense, or possess with intent to manufacture, distribute, or dispense, a controlled substance; See 21 U.S.C. § 812, Schedule II(a)(4). . Jodoin established below that agent Callahan seemed to be a “blond, young looking woman . . . [not] unusual for men to look at.” But it turned out that Mr. Jodoin “looked equally” at agent Callahan and at Sargeant Riggio, her male partner. . Agent Marchand, who was in charge of the case at the airport, had worked 10 years for the DEA and 10 months with the airport detail. One of his partners there, agent Keaney, had worked 10'A years for the DEA. Cf. United States v. Ortiz, 422 U.S. 891, 897, 95 S.Ct. 2585, 2589, 45 L.Ed.2d 623 (1975); United States v. Brignoni-Ponce, 442 U.S. 873, 885, 95 S.Ct. 2574, 2582, 45 L.Ed.2d 607 (1975). The record suggests professional detection activity by professional agents, not random passenger checks or" }, { "docid": "2619461", "title": "", "text": "S.Ct. at 2454; Mullaney v. Wilbur, 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975); In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970); McInerney v. Berman, 473 F.Supp. 187 (D.Mass.1979), aff'd, 621 F.2d 20 (1st Cir.1980), cert. denied, 449 U.S. 867, 101 S.Ct. 201, 66 L.Ed.2d 85 (1980)). The Commonwealth proposes two bases for disputing the sufficiency of Tart’s presentation to the SJC. First, the facts in both SJC cases, Claudio and Moreira, were so dissimilar from the present case that the SJC was not fairly alerted to their bearing on petitioner’s federal constitutional claim, particularly since both cases concerned state statutes governing the presumptive effect a jury must accord laboratory tests for detecting alcohol and controlled substances, whereas the instant case concerns the burden of proving licen-sure. We examine the theory underlying petitioner’s constitutional claim in order to determine whether Claudio and Moreira reasonably should have alerted the SJC to the essential federal constitutional tenets relied on in Tart’s section 2254 petition; namely, the federal due process implications of a defendant’s right to require the State to prove each element of the criminal charge beyond a reasonable doubt, see In re Winship, 397 U.S. 358, 361-362, 90 S.Ct. 1068, 1071, 25 L.Ed.2d 368 (1970), and the federal constitutional limitations on State legislative power to define a crime so as to shift to the criminal defendant the burden of proof relating to an essential element of the crime. See Mullaney v. Wilbur, 421 U.S. 684, 703-704, 95 S.Ct. 1881, 1892, 44 L.Ed.2d 508 (1975) (state may not transfer to defendant the burden of proving that he did not act in heat of passion on sudden provocation, since historical trend treats lack of justification as element of crime). The following Massachusetts statute provided the basis for the state court instruction to the Tart jury: A defendant in a criminal prosecution, relying for his justification upon a license, appointment, admission to practice as an attorney at law, or authority, shall prove the same; and, until so proved, the presumption shall be that he is not so" }, { "docid": "1358370", "title": "", "text": "he was at the place the crime was committed and actually committed it.... And it is, therefore, for the jury to decide where the truth lies.” It is constitutional error to shift the burden of proving an alibi defense to a defendant. Commonwealth v. McLeod, 367 Mass. 500, 502, 326 N.E.2d 905, 906 (1975). In McLeod the court held it “unwise” to refer to alibi as a “defense” and to single out alibi evidence for “rigid scrutiny”; “[i]f such a charge is given, it should also be pointed out that an alibi may be the only refuge of the innocent.” Id., 326 N.E.2d at 906. Although the trial judge in the instant case omitted the “refuge of the innocent” language, the McLeod decision came down years after appellant’s trial and it was not given retroactive application by the Massachusetts state courts. See Commonwealth v. Williams, 378 Mass. 242, 243-45, 390 N.E.2d 1114, 1116 (1979); Commonwealth v. Leaster, 362 Mass. 407, 416, 287 N.E.2d 122, 128 (1972). We are not persuaded by appellant’s argument that under the Court’s decision in Hankerson v. North, 432 U.S. 232 (1977), due process requires the retroactive application of McLeod despite the Massachusetts courts’ refusal to do so. In Hankerson, the Court required North Carolina to give retroactive application to Mullaney v. Wilbur, 421 U.S. 684 (1975), which required the state to establish the elements of a criminal offense beyond a reasonable doubt. The jury instructions at issue in Hankerson explicitly imposed a burden of proof on a criminal defendant as a matter of state law. That is a far cry from the instant case. The instructions in the instant case embraced abundant mitigating language that the Commonwealth bears the burden of proof. D. Appellant also argues that the judge’s instructions on malice were erroneous. The judge first instructed the jury that “[p]roof beyond a reasonable doubt is sufficient without proof of motive”. Appellant concedes that this is a correct statement of the law. What appellant objects to is the way in which the judge later defined motive and malice: “Malice has been defined by a" }, { "docid": "2498271", "title": "", "text": "95 S.Ct. 1881 (1975), involved only the defense of provocation, and the Supreme Court has not actually decided whether a state may treat self-defense as an affirmative defense that it need not negative beyond a reasonable doubt, compare Hankerson v. North Carolina, 432 U.S. 233, 240 n. 6, 97 S.Ct. 2339, 53 L.Ed.2d 306 (1977) with Patterson v. New York, 432 U.S. 197, 97 S.Ct. 2319, 53 L.Ed.2d 281 (1977) (provocation may be treated as affirmative defense for defendant to prove by preponderance), respondents do not claim that self-defense in Massachusetts is not subject to the requirements of Mullaney. In 1978, several years after the present case -was tried, the Massachusetts Supreme Judicial Court expressly ruled that the absence of self-defense was required to be proven beyond a reasonable doubt by the prosecution, Commonwealth v. Stokes, - Mass. -, 374 N.E.2d 87, 93. The Maine courts had so held even prior to Mullaney, see Mullaney, 421 U.S. at 702, 95 S.Ct. 1881. . We reject Gagne’s objection to the Massachusetts rule that, although Mullaney is retroactive, only instructions given after the Massachusetts Supreme Judicial Court’s decision in Commonwealth v. Rodriguez, 370 Mass. 684, 352 N.E.2d 203 (1976), must contain instructions that the Commonwealth must prove absence of self-defense; this is not inconsistent with the constitutional standard of Mullaney, which disapproved an instruction explicitly placing the burden of proving provocation on the defendant. We do not think that Mullaney requires a new trial in every pre-Mullaney case in which the jury was not told explicitly that the state had to prove absence of self-defense beyond a reasonable doubt. . In fairness to the state court, these statements in present form read as if somewhat garbled in transcription. We proceed on the assumption, however, that what appears in the official transcript is correct verbatim. . The Supreme Judicial Court has said that the inference of malice in Massachusetts is merely an inference that the jury can freely disregard. Gagne v. Commonwealth, - Mass. -, 377 N.E.2d 919, 922-23 (1978). . Gagne’s efforts to equate the charge given in his case with that" }, { "docid": "21548071", "title": "", "text": "constitutes a ‘clear break’ with the past.”). As this court has recently stated, “if ... jury instructions [in a pre-McNally case] allowed conviction for conduct outside the proscription of the mail fraud statute, such instructions would constitute both plain error and a defect affecting [the defendant’s] due process rights.” United States v. Piccolo, 835 F.2d 517, 519 (3d Cir.1987), cert. denied, — U.S. -, 108 S.Ct. 2014, 100 L.Ed.2d 602 (1988). However, “when determining the effect of a single challenged instruction on the validity of a conviction, the reviewing court must view the challenged instruction in the context of the overall charge rather than in ‘artificial isolation.’ ” Id. (quoting Cupp v. Naughten, 414 U.S. 141, 147, 94 S.Ct. 396, 400, 38 L.Ed.2d 368 (1973) (citing Boyd v. United States, 271 U.S. 104, 107, 46 S.Ct. 442, 443, 70 L.Ed. 857 (1926))); United States v. Park, 421 U.S. 658, 674, 95 S.Ct. 1903, 1912, 44 L.Ed.2d 489 (1975). The Supreme Court has pointed out: a judgment of conviction is commonly the culmination of a trial which includes testimony of witnesses, argument of counsel, receipt of exhibits in evidence, and instruction of the jury by the judge. Thus not only is the challenged instruction but one of many such instructions, but the process of instruction itself is but one of several components of the trial which may result in the judgment of conviction. Cupp, 414 U.S. at 147, 94 S.Ct. at 400 (quoted in Piccolo, 835 F.2d at 519). With these principles in mind, we turn to an analysis of Asher’s appeal in light of McNally and its progeny. A. The Pre-McNally Decisions and McNally In McNally, the Supreme Court assessed for the first time whether the statutory language and legislative history of the mail fraud statute, 18 U.S.C. § 1341, see note 9 supra, would support a long line of court of appeals decisions that had interpreted the statute as proscribing schemes by government officials to defraud citizens of their intangible rights to honest and impartial government. These decisions, including this court’s contribution in United States v. Clapps, 732 F.2d" }, { "docid": "22922543", "title": "", "text": "to the extent discussed above. It is settled that “[t]he scope and extent of cross-examination lies within the discretion of the trial judge.” United States v. Blanco, 861 F.2d 773, 781 (2d Cir.1988), cert. denied, 489 U.S. 1019, 109 S.Ct. 1139, 103 L.Ed.2d 200 (1989). A trial judge does not abuse his discretion by curtailing cross-examination as long as the jury has “sufficient information to make a discriminating appraisal of the particular witness’s possible motives for testifying falsely in favor of the government.” United States v. Singh, 628 F.2d 758, 763 (2d Cir.), cert. denied, 449 U.S. 1034, 101 S.Ct. 609, 66 L.Ed.2d 496 (1980). During trial, the district court permitted broad cross-examination of the government’s witnesses, and of Leon in particular. Leon was examined concerning his prior arrests for marijuana possession and distribution and his other involvement in drug dealing, including marijuana and cocaine, even after his agreement to cooperate with the government; several burglaries and thefts; credit card fraud; sale of stolen goods; and arson, again after agreeing to cooperate with the government. He was also questioned about his agreement with the government, and the amounts of money he had received from the government for his cooperation. Especially in view of this searching cross-examination, the district court did not abuse its discretion by precluding inquiry into Leon’s involvement in the attempted contract murder. G. Jury Instructions. Appellants claim that error occurred in the district court’s instructions on the RICO and section 848 counts. Before turning to their specific claims, we consider the principles governing our review. It is a “well-established proposition that a single instruction to a jury may not be judged in artificial isolation, but must be viewed in the context of the overall charge.” Cupp v. Naughten, 414 U.S. 141, 146-47, 94 S.Ct. 396, 400-01, 38 L.Ed.2d 368 (1973) (citing Boyd v. United States, 271 U.S. 104, 107, 46 S.Ct. 442, 443, 70 L.Ed. 857 (1926)); see also United States v. Park, 421 U.S. 658, 674-75, 95 S.Ct. 1903, 1912-13, 44 L.Ed.2d 489 (1975). “Often isolated statements taken from the charge, seemingly prejudicial on their face," }, { "docid": "16964354", "title": "", "text": "which stated: One section of our law says that the acts of a person of sound mind and discretion are presumed to be the product of the person’s will, and a person of sound mind and discretion is presumed to intend the natural and probable consequences of his acts, but both of these presumptions may be rebutted. Trial Transcript at 996. It is now well established that the due process clause “protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.” In Re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 1073, 25 L.Ed.2d 368 (1970). Jury instructions which relieve the prosecution of this burden or which shift to the accused the burden of persuasion on one or more elements of the crime are unconstitutional. Sand-strom v. Montana, 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39 (1979); Mullaney v. Wilbur, 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975). In analyzing a Sandstrom claim the court must first examine the crime for which the petitioner has been convicted and then examine the complained-of charge to determine whether the charge unconstitutionally shifted the burden of proof on any essential element of the crime. See Lamb v. Jernigan, 683 F.2d 1332, 1335-36 (11th Cir.1982), cert. denied, — U.S. -, 103 S.Ct. 1276, 75 L.Ed.2d 496 (1983). If the reviewing court determines that a reasonable juror would have understood the instruction either to relieve the prosecution of its burden of proof on an essential element of the crime or shift to the defendant the burden of persuasion on that element the conviction must be set aside unless the reviewing court can state that the error was harmless beyond a reasonable doubt. Lamb v. Jernigan, supra; Mason v. Balkcom, 669 F.2d 222 (5th Cir. Unit B 1982), cert. denied, — U.S.-, 103 S.Ct. 1260, 75 L.Ed.2d 487 (1983). Petitioner was convicted of armed robbery and malice murder. The offense of armed robbery under Georgia law contains three elements: (1) A taking of property from the person or" }, { "docid": "22922544", "title": "", "text": "He was also questioned about his agreement with the government, and the amounts of money he had received from the government for his cooperation. Especially in view of this searching cross-examination, the district court did not abuse its discretion by precluding inquiry into Leon’s involvement in the attempted contract murder. G. Jury Instructions. Appellants claim that error occurred in the district court’s instructions on the RICO and section 848 counts. Before turning to their specific claims, we consider the principles governing our review. It is a “well-established proposition that a single instruction to a jury may not be judged in artificial isolation, but must be viewed in the context of the overall charge.” Cupp v. Naughten, 414 U.S. 141, 146-47, 94 S.Ct. 396, 400-01, 38 L.Ed.2d 368 (1973) (citing Boyd v. United States, 271 U.S. 104, 107, 46 S.Ct. 442, 443, 70 L.Ed. 857 (1926)); see also United States v. Park, 421 U.S. 658, 674-75, 95 S.Ct. 1903, 1912-13, 44 L.Ed.2d 489 (1975). “Often isolated statements taken from the charge, seemingly prejudicial on their face, are not so when considered in the context of the entire record of the trial.” United States v. Birnbaum, 373 F.2d 250, 257 (2d Cir.), cert. denied, 389 U.S. 837, 88 S.Ct. 53, 19 L.Ed.2d 99 (1967). 1. RICO Instruction. Count one of the indictment charged five defendants with a violation of 18 U.S.C. § 1962(c) (1988), which proscribes conducting the affairs of a RICO enterprise “through a pattern of racketeering activity,” id., and specified eight predicate acts of racketeering activity. 18 U.S.C. § 1961(5) states that “ ‘pattern of racketeering activity’ requires at least two acts of racketeering activity, one of which occurred after the effective date of this chapter and the last of which occurred within ten years (excluding any period of imprisonment) after the commission of a prior act of racketeering activity.” The district court’s charge concerning the phrase “pattern of racketeering activity” tracked the language of section 1961(5), and then added that “the government is required to prove that the unlawful or racketeering acts were in some way related to the" }, { "docid": "2498265", "title": "", "text": "shot the deceased. In support, it offered evidence of inconsistencies between Gagne’s statement to the police and his trial testimony, of Gagne’s unsuccessful efforts to help Kowalski with some problems that he was having with Provincetown authorities concerning his work as a pharmacist there, of a passing' motorist having seen Gagne conversing in the pharmacy with someone of the deceased’s description, and of the fact that the deceased was shot in the back. The facts, as well as the lengthy procedural history of the case, appear in greater detail in the district court’s opinion, supra, as well as in two prior opinions of the Massachusetts Supreme Judicial Court, Gagne v. Commonwealth, - Mass. -, 377 N.E.2d 919 (1978), and Commonwealth v. Gagne, 367 Mass. 519, 326 N.E.2d 907 (1975). Gagne’s petition is based on the allegation that the state trial judge unconstitutionally shifted to him the burden of proving that he acted in self-defense or under provocation, in violation of the principle laid down in Mullaney v. Wilbur, 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975), which was given full retroactive effect in Hankerson v. North Carolina, 432 U.S. 233, 97 S.Ct. 2339, 53 L.Ed.2d 306 (1977). Like the district court, however, we do not believe that the charge shifted to Gagne the burden of proof on the element of malice. The Supreme Court held in Mullaney that an instruction that a Maine defendant was required to prove “by a fair preponderance . that he acted in the heat of passion on sudden provocation” in order to reduce a homicide to manslaughter, 421 U.S. at 686, 95 S.Ct. at 1883, violated the defendant’s right to have the requisite degree of malice, as an element of the offense, proven beyond a reasonable doubt by the state. See In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970). At Gagne’s trial, by contrast, the judge at no time stated that there was any burden on the defendant, nor was there any generally accepted state rule that required a defendant to prove self-defense. The judge stated, with significant" }, { "docid": "548863", "title": "", "text": "sentence as establishing a conclusive presumption. We think it worth repeating language from the SJC that we previously have endorsed in rejecting a defendant’s claim that the jury charge at his trial shifted to him the burden of disproving malice: “A judge does not violate constitutional principles of due process by advising the jury that, if they think it reasonable, they may infer the existence of malice from the fact, proved beyond a reasonable doubt, that a defendant shot the victim, stabbed him, or otherwise harmed him with a deadly weapon.” McInerney, 621 F.2d at 24 (quoting Gagne v. Commonwealth, 375 Mass. 417, 422-23, 377 N.E.2d 919, 923 (1978)) (emphasis added). In this case, however, the court did not qualify its instructions with permissive language or describe the reasoning process the jurors should use to reach their conclusion regarding malice. As a result, the risk of an unconstitutional application of the faulty charge was great. C. It is now clear that a Sandstrom error is subject to the harmless error rule. See Sandstrom, 442 U.S. at 526-27, 99 S.Ct. at 2460-61; Rose v. Clark, 478 U.S. 570, 580-82, 106 S.Ct. 3101, 3107-08, 92 L.Ed.2d 460 (1986); Carella v. California, 491 U.S. 263, 109 S.Ct. 2419, 2420-21, 105 L.Ed.2d 218 (1989) (per curiam). But the Supreme Court has not yet spoken explicitly on whether the analysis applicable in a Sand-strom case differs from the typical harmless error review. See Carella, 109 S.Ct. at 2421 (Scalia, J., concurring). It does not matter for this case what analysis ultimately will be deemed appropriate, however, because under either of the two apparent alternatives we do not feel able to assert with any confidence that the error was harmless. The traditional standard requires consideration of “the trial record as a whole,” United States v. Hasting, 461 U.S. 499, 509, 103 S.Ct. 1974, 1980, 76 L.Ed.2d 96 (1983), to ascertain whether the crucial fact (malice), wrongly said to be determined by a second fact (cruel act), was nevertheless overwhelmingly established by other evidence so that it is clear beyond a reasonable doubt that the jury would" }, { "docid": "22378449", "title": "", "text": "a single instruction to a jury may not be judged in artificial isolation, but must be viewed in the context of the overall charge.” Cupp v. Naughten, 414 U.S. 141, 146-47, 94 S.Ct. 396, 400, 38 L.Ed.2d 368 (1973) (citing Boyd v. United States, 271 U.S. 104, 107, 46 S.Ct. 442, 443, 70 L.Ed. 857 (1926)). “Moreover, in reviewing jury instructions, our task is also to view the charge itself as part of the whole trial.” United States v. Park, 421 U.S. 658, 674, 95 S.Ct. 1903, 1912, 44 L.Ed.2d 489 (1975). “Often isolated statements taken from the charge, seemingly prejudicial on their face, are not so when considered in the context of the entire record of the trial.” United States v. Birnbaum, 373 F.2d 250, 257 (2d Cir.), cert. denied, 389 U.S. 837, 88 S.Ct. 53, 19 L.Ed.2d 99 (1967). 1. The Relationship Between Subsections (a) and (b) of Section 848. Flores contends that section 848(a) is a lesser included offense of section 848(b), and that the district court therefore committed reversible error when it refused to charge the jury, as requested by Flores, that it could consider the lesser included offense only if it first acquitted him of the greater. The government contends that section 848(b) is a sentence enhancing provision vis-a-vis section 848(a), and that the premise of Flores’ argument is thus undercut. We are inclined, however, to agree with Flores that since section 848(b) requires the jury to find, beyond a reasonable doubt, elements in addition to those stated in section 848(a), section 848(b) resulted in a new offense rather than sentence enhancement. Cf. United States v. Amen, 831 F.2d 373, 381-82 (2d Cir.1987) (by requiring elements of section 848(a) to be proved to jury beyond reasonable doubt, amendment of original bill transformed section 848(a) from sentence enhancement provision to statement of new offense), cert. denied, 485 U.S. 1021, 108 S.Ct. 1573, 99 L.Ed.2d 889 (1988). It would follow that section 848(a) is a lesser included offense of section 848(b). See Fed.R.Crim.P. 31(c). Under these circumstances, United States v. Tsanas, 572 F.2d 340 (2d Cir.), cert." }, { "docid": "22378448", "title": "", "text": "beach, and the excluded testimony was inherently implausible. In light of the substantial evidence of Cruz’ participation in the activities of the Torres Organization, reviewed in section A4 of this Discussion, and his aborted effort to turn a semi-automatic weapon on the NYDETF agents when they entered the apartment at 2700 Grand Concourse, we doubt that the jury would have been impressed with the notion that Cruz’ presence at this operational location of the Organization resulted solely from his need to borrow a car to go to the beach. In sum, we conclude that “the trier of fact would have found the defendant guilty beyond a reasonable doubt with the additional evidence inserted.” United States v. Lay, 644 F.2d 1087, 1091 (5th Cir. Unit A May 1981), cert. denied, 454 U.S. 869, 102 S.Ct. 336, 70 L.Ed.2d 172 (1981). H. Jury Instructions. Several appellants claim error in a number of the district court’s jury instructions. Before turning to their specific claims, we consider the principles governing our review. It is a “well established proposition that a single instruction to a jury may not be judged in artificial isolation, but must be viewed in the context of the overall charge.” Cupp v. Naughten, 414 U.S. 141, 146-47, 94 S.Ct. 396, 400, 38 L.Ed.2d 368 (1973) (citing Boyd v. United States, 271 U.S. 104, 107, 46 S.Ct. 442, 443, 70 L.Ed. 857 (1926)). “Moreover, in reviewing jury instructions, our task is also to view the charge itself as part of the whole trial.” United States v. Park, 421 U.S. 658, 674, 95 S.Ct. 1903, 1912, 44 L.Ed.2d 489 (1975). “Often isolated statements taken from the charge, seemingly prejudicial on their face, are not so when considered in the context of the entire record of the trial.” United States v. Birnbaum, 373 F.2d 250, 257 (2d Cir.), cert. denied, 389 U.S. 837, 88 S.Ct. 53, 19 L.Ed.2d 99 (1967). 1. The Relationship Between Subsections (a) and (b) of Section 848. Flores contends that section 848(a) is a lesser included offense of section 848(b), and that the district court therefore committed reversible error when" }, { "docid": "7229931", "title": "", "text": "the reasonable doubt standard, reprinted in the margin, was improper and unduly confusing. Defendant correctly points out that a criminal defendant may not constitutionally be convicted'under any lesser standard of proof, In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970), and that “[djiscussion of the concept is perhaps the most important aspect of the closing instruction to the jury in a criminal trial.” Dunn v. Perrin, 570 F.2d 21, 25 (1st Cir.), cert. denied, 437 U.S. 910, 98 S.Ct. 3102, 57 L.Ed.2d 1141 (1978). We are also aware that our latitude is somewhat greater when we are exercising our supervisory power over the district courts in this circuit than when we are limited to deciding whether a state court’s instruction met minimum constitutional standards. Cupp v. Naughten, 414 U.S. 141, 145-46, 94 S.Ct. 396, 399, 38 L.Ed.2d 368 (1973). This does not mean, however, that we will or should reverse every time we feel we would have turned a different phrase than did the trial court. See United States v. MacDonald, 455 F.2d 1259, 1262-63 (1st Cir.), cert. denied, 406 U.S. 962, 92 S.Ct. 2073, 32 L.Ed.2d 350 (1972). We, like the Supreme Court, “accept ... the well-established proposition that a single instruction to a jury may not be judged in artificial isolation, but must be viewed in the context of the overall charge.” Cupp v. Naughten, supra, 414 U.S. at 146-47, 94 S.Ct. at 400. That which, standing alone, may fall short of perfection may nonetheless be tolerable in the context of a charge which adequately instructs the jury on the standard it is to apply. Appellant first asserts that the trial court confused the jury in beginning his charge by defining what reasonable doubt is not. A definition of reasonable doubt which includes a negative formulation is not objectionable per se. See Tsoumas v. New Hampshire, 611 F.2d 412 (1st Cir. 1980); United States v. Kirk, 534 F.2d 1262, 1279 (8th Cir. 1976), cert. denied, 430 U.S. 906, 433 U.S. 907, 97 S.Ct. 2971, 53 L.Ed.2d 1091 (1977); Aubut v. Maine, 431 F.2d 688," }, { "docid": "21548070", "title": "", "text": "solely with the proper scope of the mail fraud statute, and thus would directly affect only the mail fraud and conspiracy to commit mail fraud counts of Asher’s conviction, Asher claims that his ITAR and perjury convictions were preju-dicially tainted by his wrongful mail fraud and conspiracy convictions. In reviewing the district court’s order, we are bound by McNally, despite the fact that it was decided after Asher’s trial had been completed and was therefore unavailable to the district court. See Ashcraft v. Tennessee, 322 U.S. 143, 156, 64 S.Ct. 921, 927, 88 L.Ed. 1192 (1944); Hayman Cash Register Co. v. Sarokin, 669 F.2d 162, 170 (3d Cir.1982); Zichy v. City of Philadelphia, 590 F.2d 503, 508 (3d Cir.1979). See also Griffith v. Kentucky, 479 U.S. 314, 328, 107 S.Ct. 708, 716, 93 L.Ed. 2d 649 (1987) (“[A] new rule for the conduct of criminal prosecutions is to be applied retroactively to all cases, state or federal, pending on direct review or not yet final, with no exception for cases in which the new rule constitutes a ‘clear break’ with the past.”). As this court has recently stated, “if ... jury instructions [in a pre-McNally case] allowed conviction for conduct outside the proscription of the mail fraud statute, such instructions would constitute both plain error and a defect affecting [the defendant’s] due process rights.” United States v. Piccolo, 835 F.2d 517, 519 (3d Cir.1987), cert. denied, — U.S. -, 108 S.Ct. 2014, 100 L.Ed.2d 602 (1988). However, “when determining the effect of a single challenged instruction on the validity of a conviction, the reviewing court must view the challenged instruction in the context of the overall charge rather than in ‘artificial isolation.’ ” Id. (quoting Cupp v. Naughten, 414 U.S. 141, 147, 94 S.Ct. 396, 400, 38 L.Ed.2d 368 (1973) (citing Boyd v. United States, 271 U.S. 104, 107, 46 S.Ct. 442, 443, 70 L.Ed. 857 (1926))); United States v. Park, 421 U.S. 658, 674, 95 S.Ct. 1903, 1912, 44 L.Ed.2d 489 (1975). The Supreme Court has pointed out: a judgment of conviction is commonly the culmination of a trial" }, { "docid": "2619460", "title": "", "text": "a state decision whose holding is prominently predicated on federal precedent is sufficient. See id. at 1103. The “fair presentation” test is based in principles of comity, and accords appropriate respect to the States’ prerogative “to develop a caselaw rich enough to sustain the protection of federal constitutional rights under the[ir] ... own precedent.” Id. at 1101. The federal habeas forum must emphasize substance over form by scrutinizing the “essence” of the legal theory previously presented to the state court. See id. The brief presented to the SJC cited at least two SJC decisions explicitly and prominently predicated on federal constitutional caselaw. See Commonwealth v. Claudio, 405 Mass. 481, 541 N.E.2d 993 (1989) (citing Sandstrom v. Montana, 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39 (1979); United States v. United States Gypsum Co., 438 U.S. 422, 98 S.Ct. 2864, 57 L.Ed.2d 854 (1978); Morissette v. United States, 342 U.S. 246, 72 S.Ct. 240, 96 L.Ed. 288 (1952)); Commonwealth v. Moreira, 385 Mass. 792, 434 N.E.2d 196 (1982) (citing Sandstrom, 442 U.S. at 514, 99 S.Ct. at 2454; Mullaney v. Wilbur, 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975); In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970); McInerney v. Berman, 473 F.Supp. 187 (D.Mass.1979), aff'd, 621 F.2d 20 (1st Cir.1980), cert. denied, 449 U.S. 867, 101 S.Ct. 201, 66 L.Ed.2d 85 (1980)). The Commonwealth proposes two bases for disputing the sufficiency of Tart’s presentation to the SJC. First, the facts in both SJC cases, Claudio and Moreira, were so dissimilar from the present case that the SJC was not fairly alerted to their bearing on petitioner’s federal constitutional claim, particularly since both cases concerned state statutes governing the presumptive effect a jury must accord laboratory tests for detecting alcohol and controlled substances, whereas the instant case concerns the burden of proving licen-sure. We examine the theory underlying petitioner’s constitutional claim in order to determine whether Claudio and Moreira reasonably should have alerted the SJC to the essential federal constitutional tenets relied on in Tart’s section 2254 petition; namely, the federal due process implications" }, { "docid": "11502049", "title": "", "text": "agree with both the District Court’s analysis of Mullaney and its characterization of the issue as presented in the case at bar. As the District Court noted, if the charge read in its entirety conveyed the proper instruction to the jury on the State’s burden of proof in accordance with the Mul-laney standard, then there is no error. Mullaney v. Wilbur, supra, 421 U.S. at 690-691 n. 10, 95 S.Ct. 1881. In Cupp v. Naughten, supra, 414 U.S. 141, 94 S.Ct. 396, the defendant attacked in a petition for habeas corpus his Oregon arm ed robbery conviction on the ground that the trial judge’s jury instruction that “[e]very witness is presumed to speak the truth” violated Winship principles. The defendant did not testify at trial, nor did he offer any witnesses to testify on his behalf. Therefore, the only witnesses who testified were State witnesses. He claimed that when the judge charged the jury that witnesses were presumed to speak the truth, this presumption relieved the State of its burden of proving guilt beyond a reasonable doubt. Cupp v. Naughten, supra, 414 U.S. at 151, 94 S.Ct. 396 (Brennan, J., dissenting). Justice Rehnquist writing for the majority disagreed. He found that the jury was correctly and explicitly instructed on both the defendant’s presumption of innocence and the burden-of-proof standard, and that the charge in its entirety did not offend Winship standards. He said: “ . . . the question is not whether the trial court failed to isolate and cure a particular ailing instruction, but rather whether the ailing instruction by itself so infected the entire trial that the resulting conviction violates due process.” Id. at 147, 94 S.Ct. at 400. He earlier noted: “In determining the effect of this instruction on the validity of respondent’s conviction, we accept at the outset the well-established proposition that a single instruction to a jury may not be judged in artificial isolation, but must be viewed in the context of the overall charge. Boyd v. United States, 271 U.S. 104, 107 [, 46 S.Ct. 442, 70 L.Ed. 857] (1926). While this does not" }, { "docid": "2498266", "title": "", "text": "L.Ed.2d 508 (1975), which was given full retroactive effect in Hankerson v. North Carolina, 432 U.S. 233, 97 S.Ct. 2339, 53 L.Ed.2d 306 (1977). Like the district court, however, we do not believe that the charge shifted to Gagne the burden of proof on the element of malice. The Supreme Court held in Mullaney that an instruction that a Maine defendant was required to prove “by a fair preponderance . that he acted in the heat of passion on sudden provocation” in order to reduce a homicide to manslaughter, 421 U.S. at 686, 95 S.Ct. at 1883, violated the defendant’s right to have the requisite degree of malice, as an element of the offense, proven beyond a reasonable doubt by the state. See In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970). At Gagne’s trial, by contrast, the judge at no time stated that there was any burden on the defendant, nor was there any generally accepted state rule that required a defendant to prove self-defense. The judge stated, with significant repetition, that it was the Commonwealth’s burden to prove each element of the offense beyond a reasonable doubt, that malice was an element of murder, that the Commonwealth had to prove malice, and that a killing was done with malice if it was done intentionally and “without justification, excuse or extenuation.” The judge also defined adequate provocation and self-defense, and stated that a homicide “may ... be justified and hence lawful if done in self-defense.” The instruction given conveyed that the Commonwealth had to prove malice beyond a reasonable doubt, and malice was defined to include the concept that Gagne had acted without justification — i.e., not in self-defense. The charge, read as a whole, Cupp v. Naughten, 414 U.S. 141, 146-47, 94 S.Ct. 396, 38 L.Ed.2d 368 (1973), did not shift the burden of proof to defendant. To be sure, the court did not tell the jury explicitly that the Commonwealth had to prove absence of self-defense. It was not asked to give such an instruction but, in any event, we do not perceive" } ]

[ { "docid": "3182773", "title": "", "text": "MEMORANDUM AND ORDER WHITMAN KNAPP, District Judge. Defendants John J. Villani and Donald Eucker seek to have this court enjoin the New York Stock Exchange from conducting disciplinary proceedings against them during the pendency of this criminal action. They argue that such proceedings violate their Fifth Amendment right against self-incrimination and impair their ability to get a fair trial. Both contentions must be rejected. Aside from the jurisdictional objections to this motion raised by both the government and the Stock Exchange [see, United States of America v. Solomon (2d Cir. 1975) 509 F.2d 863 (Decided January 14, 1975)], it seems clear that this motion is inappropriate at this time. The disciplinary hearing before the Exchange, which is now scheduled for February 3, 1975, does not seem likely to interfere with the defendants’ right to a fair trial. At the Exchange proceeding, the defendants will inevitably invoke their Fifth Amendment privilege should they be called to testify and subsequently interrogated. The Exchange does not have the power to compel Villani and Eucker to give testimony. What disturbs the defendants, however, is that if they do refuse to answer, the Exchange, under its applicable rules, can take disciplinary action — including expulsion — against them. Villani and Eucker argue therefore that they are placed in a dilemma which effectively negates their Fifth Amendment privilege. This contention must be rejected. In United States v. Kordel (1970) 397 U.S. 1, 90 S.Ct. 763, 25 L.Ed.2d 1, the Supreme Court indicated that it was not unfair for a potential or actual defendant in a criminal case to be put to the choice of having to assert the privilege in a related civil matter. See, also, DeVita v. Sills (3d Cir. 1970) 422 F.2d 1172; and United States v. Simon (2d Cir. 1967) 373 F.2d 649, cert. granted 386 U.S. 1030, 87 S.Ct. 1485, 18 L.Ed.2d 591, vacated as moot, 389 U.S. 425, 88 S.Ct. 577, 19 L.Ed.2d 653. Furthermore, it is by no means certain that the Exchange will expel the defendants — -or indeed take any disciplinary action against them — if they refuse" } ]

[ { "docid": "18167886", "title": "", "text": "while criminal charges arising out of the same conduct were pending forced him to choose between preserving his fifth amendment privilege and losing the civil suit. The Court of Appeals stated that “He was not forced to surrender his privilege against self-incrimination in order to prevent a judgment against him; although he may have been denied his most effective defense by remaining silent, there is no indication that invocation of the fifth amendment would have necessarily resulted in an adverse judgment.” 589 F.2d at 1286. See also, S.E.C. v. Dresser Industries, Inc., 628 F.2d 1368 (D.C.Cir.1980) (en banc), cert. den. 449 U.S. 993, 101 S.Ct. 529, 66 L.Ed.2d 289 (1980). In United States v. Kordel, 397 U.S. 1, 90 S.Ct. 763, 25 L.Ed.2d 1 (1970) parallel civil and criminal suits were brought against various individual and corporate defendants, alleging violations of the Food, Drug & Cosmetic Act. In discussing these parallel civil and criminal proceedings, brought by the same agency, the Supreme Court stated that, “It would stultify enforcement of federal law to require a governmental agency such as the F.D.A. invariably to choose either to forego recommendation of a criminal prosecution once it seeks civil relief, or to defer civil proceedings pending the ultimate outcome of a criminal trial. “We do not deal here with a case where the government has brought a civil action solely to obtain evidence for its criminal prosecution or has failed to advise the defendant in its civil proceeding that it contemplates his criminal prosecution; nor with a case where the defendant is without counsel or reasonably fears prejudice from adverse pretrial publicity or other unfair injury; ...” (citations omitted). 397 U.S. at 11-12, 90 S.Ct. at 769-770. In light of these precedents, we turn to the facts of this case. The appellee was faced with difficult choices to make regarding the manner of litigating her cases. However, she was not forced to waive her fifth amendment privilege or face an immediate job termination. Cf. Gardner v. Bro-derick, supra; Uniformed Sanitation Men v. Sanitation Commissioner, supra. She always had the right to assert her" }, { "docid": "11709096", "title": "", "text": "herself to incriminating admissions that could be used in a subsequent criminal trial against her. We conclude that sufficient reasons underpinned the court’s refusal to stay the civil trial. The privilege against compulsory self-incrimination applies in civil forfeiture proceedings. See 6250 Ledge Rd., 943 F.2d at 729. However, “[a] blanket assertion of the privilege is no defense to the forfeiture proceeding.” United States v. $250,000 in United States Currency, 808 F.2d 895, 901 (1st Cir.1987) (citing Little Al, 712 F.2d at 135-36). Accord 566 Hendrickson Blvd., 986 F.2d at 996. Similarly, a blanket assertion of the privilege is an inadequate basis for the issuance of a stay. See 6250 Ledge Rd., 943 F.2d at 729. Rather, a court must stay a civil proceeding pending resolution of a related criminal prosecution only when “special circumstances” so require in the “interests of justice.” United States v. Kordel, 397 U.S. 1, 12 & n. 27, 90 S.Ct. 763, 769-70 & n. 27, 25 L.Ed.2d 1 (1970). See Securities & Exch. Comm’n v. Dresser Indus., 628 F.2d 1368, 1375 (D.C.Cir.) (en banc) (stay of civil proceedings pending outcome of criminal proceedings is not constitutionally required), cert. denied, 449 U.S. 993, 101 S.Ct. 529, 66 L.Ed.2d 289 (1980). The court may deny a stay so long as the privilege’s invocation does not compel an adverse judgment against the claimant. United States v. Premises Located at Route 13, 946 F.2d 749, 756 (11th Cir.1991). See Little Al, 712 F.2d at 136 (“The very fact of a parallel criminal proceeding, however, d[oes] not alone undercut [a claimant’s] privilege against self-incrimination, even though the pendency of the criminal action forced [her] to choose between preserving [her] privilege against self-incrimination and losing the civil suit.”). Here, we find no real conflict between the forfeiture and Claimant’s Fifth Amendment rights because she has not shown that her invocation of the privilege resulted in the civil forfeiture judgment against her. Once the government met its burden to show probable cause to initiate the forfeiture action, the burden then shifted to Claimant .to show by a preponderance of the evidence that the" }, { "docid": "20543990", "title": "", "text": "the merits. Plaintiff has no constitutional right to be relieved of the burden of the choice he faces. There is no violation of due process where a party is faced with the choice of testifying or invoking the Fifth Amendment. United States v. Kordel, 397 U.S. 1, 90 S.Ct. 763, 25 L. Ed.2d 1 (1970). Any witness in a civil or criminal trial who is himself under investigation or indictment is confronted with the dilemma of choosing to testify or to invoke his privilege against self-incrimination. Nevertheless, he must make the choice despite any extra-legal problems and pressures that might follow. United States v. Simon, 373 F.2d 649 (2d Cir.), vacated on other grounds, Simon v. Wharton, 389 U.S. 425, 88 S. Ct. 577, 19 L.Ed.2d 653 (1967). Consequently, plaintiff’s claim of a denial of due process is without merit. Further, plaintiff fails to establish that he would suffer irreparable injury from either choice. He cannot be forced to incriminate himself, and he cannot do so inadvertently because he has received notice of possible criminal action. Plaintiff’s claim that he might be damaged in any future criminal prosecution if forced to reveal his evidence in the administrative proceeding is premature. No criminal prosecution has yet been brought against him, although one has been signaled, and for all we know one may never be brought. This is not a case where the government has brought a civil action solely to obtain evidence for its criminal prosecution. Cf. United States v. Procter & Gamble Co., 356 U.S. 677, 683-684, 78 S.Ct. 983, 2 L.Ed.2d 1077 (1958). Rather, the SEC, as the agency charged with administering the Securities Acts to protect investors, is merely conducting an ordinary and proper administrative proceeding in good faith. Indeed, instead of using a civil proceeding to garner evidence for use in a criminal prosecution, it has been scrupulously careful to observe fairness standards by warning plaintiff of a possible criminal prosecution against him. The mere possibility of a criminal prosecution, however, is not a sufficient showing for the stay of a civil administrative proceeding against a potential" }, { "docid": "22317990", "title": "", "text": "request for peremptory challenges, required him to reveal his theory of defense in violation of his right to remain silent and his right to a fair trial. The disclosure of his defense theory prior to trial did not violate petitioner’s Fifth Amendment privilege against self-incrimination. It is well-settled that defendants may be required to disclose to the court and to the state their defenses prior to trial. As the Supreme Court stated in Williams v. Florida: [T]he privilege against self-incrimination is not violated by a requirement that the defendant give notice of an alibi defense .... ... That the defendant faces such a dilemma demanding a choice between complete silence and presenting a defense has never been thought an invasion of the privilege against compelled self-incrimination. 399 U.S. 78, 83-84, 90 S.Ct. 1893, 26 L.Ed.2d 446 (1970). The court did not unconstitutionally compel petitioner to disclose his defense, and “[n]othing in the Fifth Amendment privilege entitles the defendant as a matter of constitutional right to await the end of the State’s case before announcing the nature of his defense.” Id. at 85, 90 S.Ct. 1893. Petitioner also seems to argue that the disclosure of his defense theory to the prosecution violated either his Fifth Amendment right to due process of law or his Sixth Amendment right to a fair trial. Simply put, petitioner has not provided, and we have not found, any authority supporting his argument that the disclosure outside the presence of the jury of information necessary to make a showing of prejudice to support a severance motion violates the Fifth or Sixth Amendments. In any event, after reviewing the record in this ease, we find that plaintiff suffered no prejudice from the trial court’s handling of his motion for severance. Petitioner’s final claim is that he was unfairly limited in his number of peremptory challenges. The number of peremptory challenges is a matter of state law that raises no constitutional questions. See Ross v. Oklahoma, 487 U.S. 81, 88, 108 S.Ct. 2273, 101 L.Ed.2d 80 (1988). We may not review this claim. III. Therefore, for the reasons discussed" }, { "docid": "921060", "title": "", "text": "COFFIN, Chief Judge. The plaintiff-appellee is a physician accused of writing illegal prescriptions. As a result of the charges, disciplinary proceedings were begun before the Board of Registration and Discipline in Medicine of the Commonwealth of Massachusetts. A criminal investigation was also begun, and indictments were handed down. When the disciplinary hearing began, the plaintiff requested that proceedings be continued until after disposition of the criminal charges. The hearing officer refused, pointing to a state statute (§ 63) that forbids continuances of that sort. The plaintiff then brought this suit in federal district court. He pointed out that the disciplinary board would draw an adverse inference from his silence if he invoked his privilege against self-incrimination at the hearing. The threat of losing his license, he argued, would force him to testify, thus revealing his criminal defenses and making statements that might be used against him in the criminal trial. The district court, relying on the Fifth Amendment’s privilege against self-incrimination and general notions of due process, enjoined the disciplinary board from using § 63 as a reason for refusing the plaintiff a continuance. The present appeal followed. After the appeal, but before this opinion issued, one set of criminal charges went to trial. Plaintiff testified at his trial and was acquitted. Other charges are pending, and the board has not attempted to go forward with its proceedings. This case can be resolved on the merits by reference to settled law. The board is not constitutionally forbidden from drawing an adverse inference if a doctor refuses to testify at a disciplinary hearing. The board is not conducting a criminal trial, and civil proceedings are governed by a different set of Fifth Amendment principles. In civil cases, the state may not force incriminating testimony from a citizen by threatening penalties or automatic unfavorable judgments. See, e. g., Lefkowitz v. Cunningham, 431 U.S. 801, 97 S.Ct. 2132, 53 L.Ed.2d 1 (1977). But this principle does not control when the only consequence of silence is the danger that the trier of fact will treat silence as evidence of guilt. The distinction is drawn" }, { "docid": "23144714", "title": "", "text": "most antitrust defendants. The same would, indeed, be true if instead of a disciplinary proceeding we had before us a proceeding for impeachment of a judge by the New Jersey Legislature pursuant to Article VII, Section III of the New Jersey Constitution. No authority has come to our attention for so broad a reading of the Fifth Amendment, and the countervailing possibilities of prejudice to civil litigants militates against any such extension of constitutional doctrine. Indeed, serious public prejudice would occur in this case by a delay in the determination of the plaintiff’s status, since he has been suspended as a judge, and the populous County of Union suffers a judicial vacancy which may not be filled in the meantime. This consideration may well have been the reason for the prompt hearing ordered by the New Jersey Supreme Court. Plaintiff can, of course, object to depositions or interrogatories directed against him in a civil action where the answers might incriminate him in a pending criminal case. Perry v. McGuire, 36 F.R.D. 272 (S.D.N.Y.1964); Paul Harrigan & Sons, Inc. v. Enterprise Animal Oil Co., 14 F.R.D. 333 (E.D.Pa.1953); National Discount Corp. v. Holzbaugh, 13 F.R.D. 236 (E.D.Mich. 1952). But the contention that an actual or potential defendant in a criminal case should not even be put to the difficult choice of having to assert the privilege in a related civil case was rejected' in United States v. Kordel, 397 U.S. 1, 90 S.Ct. 763, 25 L.Ed.2d l decided on February 24, 1970. In Kordel the Su preme Court reversed the Sixth Circuit Court of Appeals, United States v. Detroit Vital Foods, Inc., 407 F.2d 570, which had reversed a criminal conviction for violation of the Federal Food, Drug and Cosmetic law on the ground that prior to the indictment the Government had, in a civil condemnation proceeding, served interrogatories. The defendants did not assert the privilege against self-incrimination in the civil case, but applied for a stay of the civil action, or of the answers to interrogatories, until after the disposition of the criminal case. When that relief was denied, the" }, { "docid": "18167885", "title": "", "text": "having to defend in the two parallel proceedings, the Eighth Circuit Court of Appeals stated that “... as long as an employee such as Diebold is not faced with the decision to surrender either his job or his constitutional privilege against self-incrimination, his predicament, no matter how undesirable, does not raise constitutional questibns. (citations omitted).. .. There exists no requirement that [the employee] waive his immunity under the fifth amendment. Nor is there a threat that he will be fired simply for invoking the privilege.” (citations omitted). 611 F.2d at 700-1. In accord, Arthurs v. Stern, 560 F.2d 477 (1st Cir. 1977), cert. den., 434 U.S. 1034, 98 S.Ct. 768, 54 L.Ed.2d 782 (1978); DeVita v. Sills, 422 F.2d 1172 (3rd Cir. 1970). Many cases have held that parallel criminal and civil trials or investigations do not raise questions of constitutional magnitude with respect to the privilege against self-incrimination. In United States v. White, 589 F.2d 1283 (5th Cir. 1979), a defendant in criminal proceeding contended that being forced to defend in a civil case while criminal charges arising out of the same conduct were pending forced him to choose between preserving his fifth amendment privilege and losing the civil suit. The Court of Appeals stated that “He was not forced to surrender his privilege against self-incrimination in order to prevent a judgment against him; although he may have been denied his most effective defense by remaining silent, there is no indication that invocation of the fifth amendment would have necessarily resulted in an adverse judgment.” 589 F.2d at 1286. See also, S.E.C. v. Dresser Industries, Inc., 628 F.2d 1368 (D.C.Cir.1980) (en banc), cert. den. 449 U.S. 993, 101 S.Ct. 529, 66 L.Ed.2d 289 (1980). In United States v. Kordel, 397 U.S. 1, 90 S.Ct. 763, 25 L.Ed.2d 1 (1970) parallel civil and criminal suits were brought against various individual and corporate defendants, alleging violations of the Food, Drug & Cosmetic Act. In discussing these parallel civil and criminal proceedings, brought by the same agency, the Supreme Court stated that, “It would stultify enforcement of federal law to require a" }, { "docid": "18167884", "title": "", "text": "department. Related state criminal charges were thereafter filed against the officer. He sought to have his administrative hearing continued in view of the pending state criminal proceedings. Upon the police department’s refusal to postpone the administrative hearing, the officer sought an injunction in federal court. The Fifth Circuit Court of Appeals held that the police department’s refusal to postpone the administrative hearing did not infringe any of the officer’s constitutional rights. It was said that “At the administrative hearing [the officer] will have a free choice to admit, deny, or refuse to answer. This is full vindication of the fifth amendment privilege against self-incrimination.” Luman v. Tanzler, 411 F.2d at 167. In Diebold v. Civil Service Commission of St. Louis County, 611 F.2d 697 (8th Cir. 1979), a public employee was dismissed from his job following an arrest for a criminal offense. He was required to defend two related cases simultaneously, one criminal and the other administrative. In deciding that the employee’s fifth amendment rights were not infringed as a result of the necessity of having to defend in the two parallel proceedings, the Eighth Circuit Court of Appeals stated that “... as long as an employee such as Diebold is not faced with the decision to surrender either his job or his constitutional privilege against self-incrimination, his predicament, no matter how undesirable, does not raise constitutional questibns. (citations omitted).. .. There exists no requirement that [the employee] waive his immunity under the fifth amendment. Nor is there a threat that he will be fired simply for invoking the privilege.” (citations omitted). 611 F.2d at 700-1. In accord, Arthurs v. Stern, 560 F.2d 477 (1st Cir. 1977), cert. den., 434 U.S. 1034, 98 S.Ct. 768, 54 L.Ed.2d 782 (1978); DeVita v. Sills, 422 F.2d 1172 (3rd Cir. 1970). Many cases have held that parallel criminal and civil trials or investigations do not raise questions of constitutional magnitude with respect to the privilege against self-incrimination. In United States v. White, 589 F.2d 1283 (5th Cir. 1979), a defendant in criminal proceeding contended that being forced to defend in a civil case" }, { "docid": "23582175", "title": "", "text": "of judgment, which must weigh competing interests and maintain an even balance”) (citations omitted). The court in Dresser assessed the Kordel opinion and noted that the circumstances that weigh in favor of granting a stay include malicious prosecution, the absence of counsel for defendant during depositions, agency bad faith, malicious government tactics, and “other special circumstances.” Dresser, 628 F.2d at 1375 (citing Kordel, 397 U.S. at 11-12, 90 S.Ct. at 770). The court in Dresser interpreted these references in Kordel as requiring the court to make a case-by-case determination of whether to grant a stay of civil proceedings. Dresser, 628 F.2d at 1375. Accord Attorney General of the United States v. Irish People, Inc., 684 F.2d 928, 953 (D.C.Cir.1982) (noting and employing precedent that “balancing of the parties’ interests is required * * * efforts at accommodation of both sides must be made”) (citations omitted), cert. denied, 459 U.S. 1172, 103 S.Ct. 817, 74 L.Ed.2d 1015 (1983). We agree with this flexible approach, and believe it is particularly appropriate where constitutional rights are in issue. The court in Dresser outlined the circumstances of parallel proceedings in clear terms: Other than where there is specific evidence of agency bad faith or malicious governmental tactics, the strongest case for deferring civil proceedings until after completion of criminal proceedings is where a party under indictment for a serious offense is required to defend a civil or administrative action involving the same matter. The noncriminal proceeding, if not deferred, might undermine the party’s Fifth Amendment privilege against self-incrimination, expand rights of criminal discovery beyond the limits of Federal Rule of Criminal Procedure 16(b), expose the basis of the defense to the prosecution in advance of criminal trial, or otherwise prejudice the case. If delay of the noncriminal proceeding would not seriously injure the public interest, a court may be justified in deferring it. Id. at 1375-76 (citations omitted). We agree with the court’s assessment in Dresser that parallel proceedings may result in the abuse of discovery. We discuss, infra, the question of whether the position of the claimant, e.g., as plaintiff or defendant, is" }, { "docid": "21066831", "title": "", "text": "Baxter v. Palmigiano, 425 U.S. 308, 317-18, 96 S.Ct. 1551, 1557-1558, 47 L.Ed.2d 810 (1975). (“In this respect, this case is very different from the circumstances before the Court in the Garrity-Lefkowitz decisions, where refusal to submit to interrogation and to waive the Fifth Amendment privilege, standing alone and without regard to the other evidence, resulted in loss of employment or opportunity to contract with the State.”) (Emphasis added.) Since there is no showing that Diebold must either answer questions which might incriminate him in future criminal proceedings or forfeit his job, we find no impermissible sanction in the Commission’s rules. Finally, Diebold argues that his situation presents a special problem because he has already been indicted, and perhaps faces a greater threat to his fifth amendment rights. We feel that this distinction has no bearing on the constitutional issues involved. Furthermore, we agree with the position of the Fifth Circuit Court of Appeals in United States v. White, 589 F.2d 1283, 1286 (5th Cir. 1979), which was issued in response to the same arguments Diebold sets forth in this appeal: Keno contends that being forced to go to trial in a civil case while criminal charges arising out of the same conduct were pending forced him to choose between preserving his fifth amendment privilege and losing the civil suit. It appears to us, however, that Keno overstates his dilemma. He was not forced to surrender his privilege against self-incrimination in order to prevent a judgment against him; although he may have been denied his most effective defense by remaining silent, there is no indication that invocation of the fifth amendment would have necessarily resulted in an adverse judgment. We have examined Diebold’s other arguments and find them similarly to be without merit. Accordingly, we affirm the decision of the district court. . The Honorable James H. Meredith, Chief Judge, United States District Court for the Eastern District of Missouri. . Diebold sought to enjoin the Commission from holding a dismissal appeal hearing until after the criminal case had been concluded. . At the hearing the chairman made the following" }, { "docid": "23574730", "title": "", "text": "the subjects of a criminal investigation and because their responses in the pretermination hearings could have been used against them in a criminal action, they were not given a meaningful opportunity to respond as required by due process. They further urge that the city unconstitutionally burdened their privilege against self-incrimination because they were compelled to choose between asserting the privilege and responding. These contentions are meritless. The fact that appellants had to choose whether to talk or to remain silent offends neither the fifth nor the fourteenth amendment. The Supreme Court’s decisions in Williams v. Florida, 399 U.S. 78, 90 S.Ct. 1893, 26 L.Ed.2d 446 (1970) and United States v. Rylander, 460 U.S. 752, 103 S.Ct. 1548, 75 L.Ed.2d 521 (1983) lead us to this conclusion. In Williams, the Court observed that the decision whether to respond to the state’s evidence is often a difficult one, but the fact that a choice must be made does not raise fifth or fourteenth amendment problems: The defendant in a criminal trial is frequently forced to testify himself and to call other witnesses in an effort to reduce the risk of conviction. When he presents his witnesses, he must reveal their identity and submit them to cross-examination which in itself may prove incriminating or which may furnish the State with leads to incriminating rebuttal. That the defendant faces such a dilemma demanding a choice between complete silence and presenting a defense has never been thought an invasion of the privilege against compelled self-incrimination. The pressures generated by the State’s evidence may be severe but they do not vitiate the defendant’s choice to present an alibi defense and witnesses to prove it, even though the attempted defense ends in catastrophe for the defendant. However “testimonial” or “incriminating” the alibi defense proves to be, it cannot be considered “compelled” within the meaning of the Fifth and Fourteenth Amendments. Williams, 399 U.S. at 83-84, 90 S.Ct. at 1896-1897. Relying on Williams, the Court in Rylander held that no constitutional violation occurs when a defendant in a civil contempt proceeding is confronted with the option of offering" }, { "docid": "23566671", "title": "", "text": "(1970). Cf. Self v. United States, 249 F.2d 32 (5 Cir. 1959). Although Keno was caught “holding” the money, the existence of this account was not irrelevant as to his coconspirator. Submission of this evidence to the jury did not amount to an abuse of discretion. II. Keno A. Keno contends that being forced to go to trial in a civil case while criminal charges arising out of the same conduct were pending forced him to choose between preserving his fifth amendment privilege and losing the civil suit. It appears to us, however, that Keno overstates his dilemma. He was not forced to surrender his privilege against self-incrimination in order to prevent a judgment against him; although he may have been denied his most effective defense by remaining silent, there is no indication that invocation of the fifth amendment would have necessarily resulted in an adverse judgment. The Supreme Court has recently addressed a similar problem in Baxter v. Pal-migiano, 425 U.S. 308, 96 S.Ct. 1551, 47 L.Ed.2d 810 (1976). In Baxter, plaintiff asserted that a Rhode Island rule allowing the fact-finder in a prison disciplinary proceeding to draw an adverse inference from a failure to testify derogated his fifth amendment privilege. The Court rejected this argument, finding that this rule was not an invalid attempt to penalize the exercise of the privilege. Justice White wrote for the majority, . a prison inmate in Rhode Island electing to remain silent during his disciplinary hearing, as respondent Palmigi-ano did here, is not in consequence of his silence automatically found guilty of the infraction with which he has been charged. Under Rhode Island law, disciplinary decisions “must be based on substantial evidence manifested in the record of the disciplinary proceeding.” Morris v. Travisono, 310 F.Supp. 857, 873 (R.I.1970). It is thus undisputed that an inmate’s silence in and of itself is insufficient to support an adverse decision by the Disciplinary Board. In this respect, this case is very different from the circumstances before the Court in the Garrity [v. New Jersey, 385 U.S. 493, 87 S.Ct. 616, 17 L.Ed.2d 562]-Lefkowitz [v. Turley," }, { "docid": "16530626", "title": "", "text": "insists on conducting a probation hearing prior to trial on the state charges, then a limited use immunity therefore must arise in favor of the probationer under the privilege against self-incrimination of the U.S. Constitution.” This Fifth Amendment guarantee, however, protects the individual only against compelled self-incrimination. See Hoffa v. United States, 385 U.S. 293, 303-04, 87 S.Ct. 408, 414, 17 L.Ed.2d 374 (1966). In McGautha v. California, 402 U.S. 183, 91 S.Ct. 1454,28 L.Ed.2d 711 (1970), vacated on other grounds, 408 U.S. 941, 92 S.Ct. 2873, 33 L.Ed.2d 765 (1971), the Supreme Court held that no impermissible coercion resulted when a defendant in a state single-verdict trial system was required to choose whether to stand on his right against self-incrimination at the risk that his failure to testify would be damaging on the issue of punishment. Id. at 217, 91 S.Ct. at 1472. I can perceive no principled basis for distinguishing McGautha from the instant case, in which Mollica was required to choose whether to stand on his right against self-incrimination at the risk that his failure to testify would be damaging concerning probation revocation. Therefore, I cannot conclude that Mollica was under the kind of compulsion that violates the privilege against self-incrimination. Mollica also argued before the district court that use immunity was necessary as a matter of “fundamental fairness”. Although he did not elaborate further on this contention, I presume he meant to suggest that forcing him to choose between exercising his constitutional right to be heard in person at his probation revocation hearing, Gagnon v. Scarpelli, 411 U.S. 778, 782, 93 S.Ct. 1756, 1759, 36 L.Ed.2d 656 (1982), and preserving his privilege against self-incrimination at the state criminal proceedings, violates due process. I am not unappreciative of the difficulty of this choice. Yet, not every burden on the exercise of a constitutional right, and not every pressure or encouragement to waive such a right, is constitutionally impermissible. Corbitt v. New Jersey, 439 U.S. 212, 218, 99 S.Ct. 492, 497, 58 L.Ed.2d 466 (1978). The threshold question in this regard is whether compelling an election impairs to" }, { "docid": "20543989", "title": "", "text": "choose between testifying, thus giving the government pretrial discovery of his defenses to the criminal prosecution which has been signaled, or invoking the Fifth Amendment, thus risking loss of his license as a registered representative. Preliminary or intermediate SEC actions are ordinarily reviewable by the courts of appeal but only upon review of the final agency action, and then only after all administrative remedies have been exhausted. 5 U.S.C. § 704; 15 U.S.C. § 78y. It is clear that by invoking the aid of the district court, plaintiff is not pursuing his administrative remedies. Plaintiff maintains, however, that immediate relief is required here because he would suffer irreparable injury if forced to choose which course of action to take before he could exhaust his administrative remedies. A district court may correct a preliminary agency decision when the agency has plainly exceeded its statutory authority or threatens irreparable injury in clear violation of an individual’s rights. M. G. Davis & Co. v. Cohen, 369 F.2d 360 (2d Cir. 1966). We shall, therefore, consider plaintiff’s claim on the merits. Plaintiff has no constitutional right to be relieved of the burden of the choice he faces. There is no violation of due process where a party is faced with the choice of testifying or invoking the Fifth Amendment. United States v. Kordel, 397 U.S. 1, 90 S.Ct. 763, 25 L. Ed.2d 1 (1970). Any witness in a civil or criminal trial who is himself under investigation or indictment is confronted with the dilemma of choosing to testify or to invoke his privilege against self-incrimination. Nevertheless, he must make the choice despite any extra-legal problems and pressures that might follow. United States v. Simon, 373 F.2d 649 (2d Cir.), vacated on other grounds, Simon v. Wharton, 389 U.S. 425, 88 S. Ct. 577, 19 L.Ed.2d 653 (1967). Consequently, plaintiff’s claim of a denial of due process is without merit. Further, plaintiff fails to establish that he would suffer irreparable injury from either choice. He cannot be forced to incriminate himself, and he cannot do so inadvertently because he has received notice of possible criminal" }, { "docid": "19945412", "title": "", "text": "S.Ct. 1136, 79 L.Ed.2d 409 (1984). We have similarly stated that a “defendant’s failure to invoke the privilege against self-incrimination waives a later claim of privilege.” Unruh, 855 F.2d at 1374 (holding that a defendant waived the privilege when, after being advised of his right not to answer questions, he proceeded to testify in a civil deposition). The district court therefore erred in holding that defendants’ waivers of the privilege were ineffective because they were not told of the U.S. Attorney’s active involvement. See Stringer, 408 F.Supp.2d at 1089-90. The SEC Form 1662 used in this case alerts SEC investigative witnesses that the information can be used in a criminal proceeding. Defendants were on sufficient notice, and so were their attorneys. As one federal court has explained, all that was required was “sufficient notice ... that any information could be used against [them] in a subsequent criminal proceeding.” United States v. Teyibo, 877 F.Supp. 846, 855 (S.D.N.Y. 1995). That court emphasized that “SEC Form 1662 stated in no uncertain terms that the [government’s request for information could be refused pursuant to the Fifth Amendment’s protection against compelled self-incrimination.” Id. We agree. The SEC here went even further, warning each defendant at the beginning of each deposition that “the facts developed in this investigation might constitute violations of ... criminal laws.” Nonetheless, defendants proceeded to testify and failed to invoke their privilege against self-incrimination. Defendants have forfeited any claims that the use of their testimony against them in the criminal proceedings violates the privilege against self-incrimination. The defendants next contend that the district court properly concluded that the government used the civil investigation solely to obtain evidence for a subsequent criminal prosecution, in violation of due process. The Supreme Court in Kordel made it clear that dual investigations must meet the requirements of the Fifth Amendment Due Process Clause. See 397 U.S. at 11-12, 90 S.Ct. 763. While holding that “[i]t would stultify the enforcement of federal law” to curtail the government’s discretion to conduct dual investigations strategically, the Court suggested that a defendant may be entitled to a remedy where" }, { "docid": "10528491", "title": "", "text": "of appellees. We therefore reverse the district court’s entry of summary judgment on due process grounds and remand this issue to the district court. D. Self-Incrimination The district court held, and appellees argue, that the appellees’ rights against self-incrimination mandated summary judgment, relying principally on Pervis v. State Farm Fire & Casualty Co., 901 F.2d 944 (11th Cir.), cert. denied, — U.S. -, 111 S.Ct. 255, 112 L.Ed.2d 213 (1990), and United States v. U.S. Currency, 626 F.2d 11 (6th Cir.), cert. denied, 449 U.S. 993, 101 S.Ct. 529, 66 L.Ed.2d 290 (1980). The general rule provides “that the Fifth Amendment does not forbid adverse inferences against parties to civil actions when they refuse to testify in response to probative evidence offered against them.” United States v. A Single Family Residence & Real Property, 803 F.2d 625, 629 n. 4 (11th Cir.1986). However, this Court recently recognized an exception to this general rule: the Fifth Amendment is violated when a person, who is a defendant in both a civil and a criminal case, is forced to choose between waiving his privilege against self-incrimination or losing the civil case on summary judgment. Pervis, 901 F.2d at 946-47. However, to trigger this rule, the invocation of the privilege must result in an adverse judgment, not merely the loss of “his most effective defense.” Id. Stated plainly, the rule applies when the invocation of the privilege would result in “automatic entry of summary judgment.” Id. at 949. This rule probably applies to Andy Smith as of his indictment on August 30, 1990, and might apply, by extension, to the other appellees who are not yet criminal defendants but who still might invoke the Fifth Amendment privilege. However, it is unclear whether the rule is satisfied in the present case because this Court cannot tell from the record before it whether the appellees’ invocation of the privilege would in fact cause an adverse judgment in the forfeiture proceedings. If the appellees could show that their invocation of the privilege would in fact cause an adverse judgment, i.e., cause them to be unable to rebut" }, { "docid": "22105058", "title": "", "text": "defendants have demonstrated prejudice as a result of the order striking their affirmative defense of waiver. Finally, defendants contend that the trial court abused its discretion in refusing a stay of the civil case until final disposition of all criminal proceedings. The trial court denied the request and directed that the civil trial would proceed some two months later on May 1, 1972, as previously ordered. No further motions to delay the trial were made and the trial proceeded as scheduled with the jury returning its verdict on May 16, 1972. There is no question but what in some cases the risk of self-incrimination may require a postponement of civil proceedings until the criminal case is completely disposed of. United States v. Kordel, supra, 397 U.S. 1, 9, 90 S.Ct. 763, 768 (1970). Appellant Bass contends such is the case at hand; that his was the Hobson’s choice: either to yield up his right against self-incrimination and answer the interrogatories and proceed to trial, or to invoke his right against self-incrimination and suffer the permanent loss of his affirmative defenses and his counterclaim and his right to a proper defense at trial. Spevack v. Klein, 385 U.S. 511, 87 S.Ct. 625, 17 L.Ed.2d 574 (1967); Garrity v. New Jersey, 385 U.S. 493, 87 S.Ct. 616, 17 L.Ed.2d 562 (1967). Selb contends its affirmative defenses and much of its counterclaim are the same as Bass’ and therefore it too should be granted a new trial. We have already indicated that on balance it is our view that the trial court did not abuse its discretion in striking the affirmative defenses and counterclaims. The matter of being required to proceed to trial is more troublesome. Bass’ privilege against self-incrimination is entitled to protection. But that does not necessarily mandate a halt in the civil proceedings. It has been properly said that “[t]he court, in its sound discretion, must assess and balance the nature and substantiality of the injustices claimed on either side.” Gordon v. Federal Deposit Ins. Corp., supra, 138 U.S.App.D.C. 308, 427 F.2d 578, 580 (1970). Here both Selb and Bass" }, { "docid": "19945413", "title": "", "text": "information could be refused pursuant to the Fifth Amendment’s protection against compelled self-incrimination.” Id. We agree. The SEC here went even further, warning each defendant at the beginning of each deposition that “the facts developed in this investigation might constitute violations of ... criminal laws.” Nonetheless, defendants proceeded to testify and failed to invoke their privilege against self-incrimination. Defendants have forfeited any claims that the use of their testimony against them in the criminal proceedings violates the privilege against self-incrimination. The defendants next contend that the district court properly concluded that the government used the civil investigation solely to obtain evidence for a subsequent criminal prosecution, in violation of due process. The Supreme Court in Kordel made it clear that dual investigations must meet the requirements of the Fifth Amendment Due Process Clause. See 397 U.S. at 11-12, 90 S.Ct. 763. While holding that “[i]t would stultify the enforcement of federal law” to curtail the government’s discretion to conduct dual investigations strategically, the Court suggested that a defendant may be entitled to a remedy where “the [government has brought a civil action solely to obtain evidence for its criminal prosecution.” 397 U.S. at 11-12, 90 S.Ct. 763. In this case, the government argues that it did not violate defendants’ due process rights because the civil investigation was not commenced solely to obtain evidence for a criminal prosecution. It is significant to our analysis that the SEC began its civil investigation first and brought in the U.S. Attorney later. This tends to negate any likelihood that the government began the civil investigation in bad faith, as, for example, in order to obtain evidence for a criminal prosecution. In United States v. Unruh, 855 F.2d 1363, 1374 (9th Cir.1987), we held that a defendant was not entitled to dismissal of his indictment when the U.S. Department of the Treasury instituted its investigation before any indictment and in order to file its own civil complaint. See also United States v. Churchill, 483 F.2d 268, 272 (1st Cir.1973); United States v. Teyibo, 877 F.Supp. 846, 855 (S.D.N.Y.1995). United States v. Posada Carriles, 486 F.Supp.2d" }, { "docid": "4059358", "title": "", "text": "strong federal policy against interference with pending state judicial proceedings and held that when important state interests are involved, the courts must apply the principles of comity and federalism enunciated in Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed. 2d 669 (1971). Under Middlesex, where, as here, (1) the state bar disciplinary hearings are within the constitutionally prescribed jurisdiction of the state supreme court and constitute an ongoing state judicial proceeding; (2) the proceedings implicate important state interests; and (3) there was an adequate opportunity to raise constitutional issues in the proceeding, abstention is required. Middlesex County Ethics Committee v. Garden State Bar Association, 457 U.S. at 432-37; 102 S.Ct. at 2521-2524. C. Avila’s complaint alleges that requiring him to proceed with the disciplinary action will force him to waive his right against self-incrimination. However, as long as a person is not faced with the choice of surrendering either his license or his constitutional privilege against self-incrimination, his participation in administrative proceedings which parallel his criminal case does not raise constitutional questions. United States v. Kordel, 397 U.S. 1, 90 S.Ct. 763, 25 L.Ed.2d 1 (1970). Furthermore, Colo.R.Civ.P. 241.14(d) protects Avila’s right against self-incrimina tion. It provides that “the respondent may not be required to testify or to produce records over his objection if to do so would be in violation of his constitutional privilege against self-incrimination.” Because Avila’s criminal trial has been completed, proceeding with the disciplinary hearing is not an infringement of his right against self-incrimination. D. Avila claims that he is indigent and is entitled to appointed counsel in the disciplinary proceeding as a matter of right. The presumption is that an indigent person has a right to appointed counsel only when, if he loses, he may be deprived of his physical liberty. Lassiter v. Department of Social Services, 452 U.S. 18, 26-27, 101 S.Ct. 2153, 2159, 68 L.Ed.2d 640 (1981). When deciding if a person is entitled to counsel, the court must balance against this presumption the private interests at stake, the government’s interest, and the risk that the procedure will lead to" }, { "docid": "23144715", "title": "", "text": "& Sons, Inc. v. Enterprise Animal Oil Co., 14 F.R.D. 333 (E.D.Pa.1953); National Discount Corp. v. Holzbaugh, 13 F.R.D. 236 (E.D.Mich. 1952). But the contention that an actual or potential defendant in a criminal case should not even be put to the difficult choice of having to assert the privilege in a related civil case was rejected' in United States v. Kordel, 397 U.S. 1, 90 S.Ct. 763, 25 L.Ed.2d l decided on February 24, 1970. In Kordel the Su preme Court reversed the Sixth Circuit Court of Appeals, United States v. Detroit Vital Foods, Inc., 407 F.2d 570, which had reversed a criminal conviction for violation of the Federal Food, Drug and Cosmetic law on the ground that prior to the indictment the Government had, in a civil condemnation proceeding, served interrogatories. The defendants did not assert the privilege against self-incrimination in the civil case, but applied for a stay of the civil action, or of the answers to interrogatories, until after the disposition of the criminal case. When that relief was denied, the interrogatories were answered, and the answers provided information useful in the criminal case. The Supreme Court found the answers to have been voluntarily given, and rejected contentions similar to those advanced by plaintiff here, saying: The respondents urge that even if the Government’s conduct did not violate their Fifth Amendment privilege against compulsory self-incrimination, it nonetheless reflected such unfairness and want of consideration for justice as independently to require the reversal of their convictions. On the record before us, we cannot agree that the respondents have made out either a violation of due process or a departure from proper standards in the administration of justice requiring the exercise of our supervisory power. The public interest in protecting consumers throughout the Nation from misbranded drugs requires prompt action by the agency charged with responsibility for administration of the federal food and drug laws. But a rational decision whether to proceed criminally against those responsible for the misbranding may have to await consideration of a fuller record than that before the agency at the time of the" } ]

[ { "docid": "22638702", "title": "", "text": "mobility is not a sufficient justification for the fashioning of an exception to the warrant requirement, especially in the face of heightened expectations of privacy in the location searched. Motor homes, by their common use and construction, afford their owners a substantial and legitimate expectation of privacy when they dwell within. When a motor home is parked in a location that is removed from the public highway, I believe that society is prepared to recognize that the expectations of privacy within it are not unlike the expectations one has in a fixed dwelling. As a general rule, such places may only be searched with a warrant based upon probable cause. Warrantless searches of motor homes are only reasonable when the motor home is traveling on the public streets or highways, or when exigent circumstances otherwise require an immediate search without the expenditure of time necessary to obtain a warrant. As we explained in Ross, the automobile exception is the product of a long history: “[SJince its earliest days Congress had recognized the impracticability of securing a warrant in cases involving the transportation of contraband goods. It is this impracticability, viewed in historical perspective, that provided the basis for the Carroll decision. Given the nature of an automobile in transit, the Court recognized that an immediate intrusion is necessary if police officers are to secure the illicit substance. In this class of cases, the Court held that a warrantless search of an automobile is not unreasonable.” 456 U. S., at 806-807 (footnotes omitted). The automobile exception has been developed to ameliorate the practical problems associated with the search of vehicles that have been stopped on the streets or public highways because there was probable cause to believe they were transporting contraband. Until today, however, the Court has never decided whether the practical justifications that apply . to a vehicle that is stopped in transit on a public way apply with the same force to a vehicle parked in a lot near a courthouse where it could easily be detained while a warrant is issued. In this case, the motor home was" } ]

[ { "docid": "1793930", "title": "", "text": "in a long time, contrary to Barbin’s statement that it had been used the day before. A later investigation by officers at the mouth of the Rio Grande River disclosed tire tracks which matched the tires on the vehicle and “where a tongue of a trailer had been drugged [sic] across.” The officers concluded that the sailboat and trailer were floated across the river at this point. The officers testified that they did not obtain a search warrant because they were conducting a customs border search. B. Warrantless Searches and Seizures “In general, warrantless searches and seizures are unreasonable under the fourth amendment except those falling within a few narrowly defined exceptions.” United States v. Niver, 689 F.2d 520, 525 (5th Cir.1982), (citing Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971)). The district court, in denying Barbin’s motion for the suppression of evidence obtained in a warrantless search and seizure relied on two exceptions: (1) a warrantless search of an automobile based on probable cause and (2) a warrantless border search. Barbin contends that the facts of his case do not support either exception to the prohibition against warrantless searches and seizures. (1) Automobile Exception (a) Probable cause to search “[P]olice officers who have legitimately-stopped an automobile and who have probable cause to believe that contraband is concealed somewhere within it may conduct a warrantless search of the automobile that is as thorough as a magistrate could authorize by warrant.” United States v. Mendoza, 722 F.2d 96, 100 (5th Cir.1983) (citing United States v. Ross, 456 U.S. 798, 102 S.Ct. 2157, 72 L.Ed.2d 572 (1982)). This Court implied in Mendoza that if probable cause for a search exists, the officers need not apply for a warrant after detaining an automobile. See 722 F.2d at 102 n. 6; cf. United States v. Ross, 456 U.S. at 807 n. 9, 102 S.Ct. at 2163 n. 9, (constitutional warrantless seizure may permit immediate or subsequent warrantless search). The probable cause necessary for a warrantless search is to be determined by the same standard as that for issuance" }, { "docid": "8082747", "title": "", "text": "the court of the “underlying circumstances from which the informant concluded that the narcotics were where he claimed they were, and some of the underlying circumstances from which the officer concluded that the informant ... was ‘credible’ or his information ‘reliable.’ ” McCray, 386 U.S. at 304, 87 S.Ct. at 1059 (citations omitted). Thus, under the totality of the circumstances test, “[t]here can be no doubt upon the basis of the circumstances related by [Castro], that there was probable cause to sustain the arrest____” Id. B. De Los Santos also questions the propriety of the search of the automobile. He argues that the warrantless automobile search was unreasonable and did not comport with the fourth amendment. We also disagree with this contention. We have previously stated: A warrantless search of an automobile stopped by police officers who have probable cause to believe that an automobile contains contraband is permissible under the fourth amendment. Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925). This principle was reaffirmed and clarified in the Supreme Court’s decision in United States v. Ross, 456 U.S. 798, 102 S.Ct. 2157, 72 L.Ed.2d 572 (1982), holding that police officers who have legitimately stopped an automobile and who have probable cause to believe that contraband is concealed somewhere within it may conduct a war-rantless search of the automobile that is as thorough as a magistrate could authorize by warrant. Based on these cases, it follows that if the police officers, through their collective knowledge, had probable cause to believe that contraband was contained in Mendoza’s automobile, their warrantless search of that automobile and the seizure of the thirty pounds of cocaine found therein, was lawful. United States v. Mendoza, 722 F.2d 96,100 (5th Cir.1983) (footnote omitted). Based on our previous discussion of the facts that support probable cause to arrest, we conclude that probable cause also existed to search the vehicle. De Los Santos argues, though, that the agents could have obtained a search warrant because the informant provided the information the evening prior to the arrest. Moreover, he asserts that there were" }, { "docid": "4426974", "title": "", "text": "denied, 416 U.S. 987, 94 S.Ct. 2392, 40 L.Ed.2d 764 (1974). The odor and circumstances of the seizure supplied the probable cause for a search warrant. They did not eliminate the need for one. II. Automobile Exception The government next contends that the warrantless search was justified under the automobile exception to the warrant requirement. For that contention to succeed, three conditions must be met. First, the Supreme Court’s decision in United States v. Ross, 456 U.S. 798, 102 S.Ct. 2157, 72 L.Ed.2d 572 (1982), must have retroactive effect. Second, Ross must apply to the facts of this case. Finally, the three-day delay must not invalidate the warrantless automobile search. A. The Retroactivity of Ross In United States v. Ross, 456 U.S. 798, 824, 102 S.Ct. 2157, 2172, 72 L.Ed.2d 572 (1982), the Supreme Court rejected the rule of Robbins v. California, 453 U.S. 420, 101 S.Ct. 2841, 69 L.Ed.2d 744 (1981), relied on by the district court when it granted the defendants’ suppression motion. In Robbins, the Court considered whether police officers entitled to conduct a warrantless search of an automobile stopped on a public roadway may open a container found within the vehicle. The Court reversed Robbins’ conviction on the ground that a closed opaque container “may not be opened without a warrant, even if it is found during the course of the lawful search of an automobile.” Id. at 428, 101 S.Ct. at 2847. The following year, in Ross, the Court reexamined the automobile exception and concluded that “[i]f probable cause justifies the search of a lawfully stopped vehicle, it justifies the search of every part of the vehicle and its contents that may conceal the object of the search.” 102 S.Ct. at 2172. The government argues that the decision in Ross must control here, requiring reversal, while the appellees contend that the decision should not be given retroactive effect. This court already has applied Ross retroactively, although without discussion of the issue. United States v. Cleary, 683 F.2d 313 (9th Cir.1982). See also United States v. Rivera, 684 F.2d 308 (5th Cir.1982). The opinion in Ross" }, { "docid": "8440131", "title": "", "text": "vessel. Despite these differences and similarities, airplanes can be searched only on the basis of probable cause (or consent). U.S. v. Coplen, 541 F.2d 211 (9th Cir.1976). In terms of prompt, direct transportation of items, an airplane may present more of a lethal weapon for criminals than its counterpart at sea or on the land. It is submitted that the distinctions between a land vehicle and a vessel are so nominal that a separate measure or standard for justifying a search and seizure is unnecessary. The test for the sea vessel should be the same as that for the land vehicle, to wit: probable cause. B.Warrant Requirement Now that a standard of probable cause has been established for nautical searches, a discussion should ensue regarding the requirement of a warrant. When the police have probable cause to believe that contraband is present in a vehicle, they may conduct a warrantless search of the vehicle “as thorough as a Magistrate could authorize in a warrant”; i.e., it includes closed containers and suitcases within the vehicle that may conceal the object of the search. U.S. v. Ross, 456 U.S. 798, 800, 102 S.Ct. 2157, 2160, 72 L.Ed.2d 572 (1982). The showing of actual exigency to justify a warrantless search of a vehicle is not required. California v. Carney, 471 U.S. 386, 105 S.Ct. 2066, 85 L.Ed.2d 406 (1985). By analogy, the same rule should apply to vessels. Accordingly, the Coast Guard in the case at bar was not required to obtain a search warrant prior to boarding (seizure) and searching the Christina M. Finally, in obedience to the rule of reasonableness under the fourth amendment, the government, under the facts of this case, must establish not only that the seizure and search was undertaken reasonably, but must further sustain the burden of reasonableness with respect to the location (high seas) where it was exercised. In discussing this issue, the consent of the flag state is significant to establish that the seizure (stopping) and subsequent search was not a “lawless governmental intrusion.” U.S. v. Williams, supra at 1074. U.S. v. Ricardo, supra at" }, { "docid": "8440122", "title": "", "text": "plain view, (U.S. v. Green, 671 F.2d 46 (1st Cir.) cert. denied, 457 U.S. 1135, 102 S.Ct. 2962, 73 L.Ed.2d 1352 (1982); U.S. v. Hilton, supra), or smells contraband (U.S. v. Cilley, supra; U.S. v. Reeh, 780 F.2d 1541 (11th Cir.1986)), the search of the vessel may be expanded beyond the ambit of an administrative inspection. U.S. v. Jonas, supra; U.S. v. Cilley, supra. The above discussion of administrative searches and seizures serves to highlight the constitutional limitations on intrusions where the purpose is not administrative, thereby diffusing the Coast Guard’s apparent authority recited in Section 89(a). Returning to the facts of the case at bar, what then is the appropriate standard to apply, under the fourth amendment, which would govern seizures and searches aimed at discovering contraband or other criminal violations aboard a foreign vessel on the high seas? It should be noted that Christina M was searched for contraband. It was not an administrative search. The Fifth Circuit in U.S. v. Williams, supra, requires at least reasonable suspicion before a seizure and search is undertaken. Id. at 1087. The Ninth Circuit has declined to address the standard required for the necessity of a warrant preceding the search and seizure. U.S. v. Humphrey, supra at 747. Reasonable suspicion must be based on specific articulable facts, together with rational inferences from those facts. U.S. v. Brignoni-Ponce, 422 U.S. 873, 95 S.Ct. 2574, 45 L.Ed.2d 607 (1975). As in probable cause, there is no litmus test for reasonable suspicion; “[Ejach case must turn on the totality of the particular circumstances.” Id. at 885 n. 10, 95 S.Ct. at 2582, n. 10. U.S. v. Williams, supra, notes that the Constitution mandates a lesser standard than probable cause to govern searches in the high seas than on land because of several substantial differences between nautical vessels and vehicles and buildings on land. Id. at 1087 and 1088. They are (1) the greater difficulties in policing the ocean frontier, (2) the substantial limitations on one’s privacy expectation on the seas due to the extensive federal and international regulation of vessels, (3) the emergence of" }, { "docid": "4237145", "title": "", "text": "132, 149, 162, 45 S.Ct. 280, 283, 288, 69 L.Ed. 543 (1925). Once probable cause existed to believe that contraband was being concealed and illegally transported in the pickup truck, the search could properly have been conducted without a warrant. United States v. Johns, — U.S. -, 105 S.Ct. 881, 887, 83 L.Ed.2d 890 (1985); Michigan v. Thomas, 458 U.S. 259, 261, 102 S.Ct. 3079, 3080, 73 L.Ed.2d 750 (1982) (per curiam); Carroll v. United States, 267 U.S. 132, 153, 45 S.Ct. 280, 285, 69 L.Ed. 543 (1925). Furthermore, the lawful search of a vehicle is not restricted temporally. The Supreme Court has held that there is no requirement that the warrantless search of a vehicle occur contemporaneously with its lawful seizure. Texas v. White, 423 U.S. 67, 68, 96 S.Ct. 304, 305, 46 L.Ed.2d 209 (1975) (per curiam); Chambers v. Maroney, 399 U.S. 42, 52, 90 S.Ct. 1975, 1981, 26 L.Ed.2d 419 (1970). Indeed, in Michigan v. Thomas, 458 U.S. 259, 102 S.Ct. 3079, 73 L.Ed.2d 750 (1982) (per curiam), the Court stated that “the justification to conduct a warrantless search does not vanish once the car has been immobilized.” Id. at 261, 102 S.Ct. at 3080. The scope of a warrantless search of a motor vehicle based on probable cause is no broader or narrower than if it were authorized by a warrant supported by probable cause. United States v. Ross, 456 U.S. 798, 823, 825, 102 S.Ct. 2157, 2172, 2173, 72 L.Ed.2d 572 (1982). The Court in Ross stated: “If probable cause justifies the search of a lawfully stopped vehicle, it justifies the search of every part of the vehicle and its contents that may conceal the object of the search.” Id. at 825, 102 S.Ct. at 2173. Thus, Ross establishes that the contents of the pickup truck and any packages, bales, or containers within it could have been searched when the truck driven by Craven was initially stopped. Nevertheless, appellant contends that the warrantless search violates the fourth amendment because it was conducted seven days after the seizure of the pickup truck. We find this contention" }, { "docid": "8440132", "title": "", "text": "may conceal the object of the search. U.S. v. Ross, 456 U.S. 798, 800, 102 S.Ct. 2157, 2160, 72 L.Ed.2d 572 (1982). The showing of actual exigency to justify a warrantless search of a vehicle is not required. California v. Carney, 471 U.S. 386, 105 S.Ct. 2066, 85 L.Ed.2d 406 (1985). By analogy, the same rule should apply to vessels. Accordingly, the Coast Guard in the case at bar was not required to obtain a search warrant prior to boarding (seizure) and searching the Christina M. Finally, in obedience to the rule of reasonableness under the fourth amendment, the government, under the facts of this case, must establish not only that the seizure and search was undertaken reasonably, but must further sustain the burden of reasonableness with respect to the location (high seas) where it was exercised. In discussing this issue, the consent of the flag state is significant to establish that the seizure (stopping) and subsequent search was not a “lawless governmental intrusion.” U.S. v. Williams, supra at 1074. U.S. v. Ricardo, supra at 1129, discusses the object of defendant’s plan having a consequence within the United States. Id. at 1128. U.S. v. Postal, supra, discusses the nexus between the defendant’s conduct and the United States as “intended territorial effects.” Id. at 886, n. 39. The direction of travel of the Christina M prior to the boarding does not suggest reasonableness in that it was not traveling in the direction of the United States. See U.S. v. Williams, supra. However, a sufficient nexus, i.e., reasonableness, was established with the United States when the Christina M participated with the undercover vessel in the off-loading several days prior to the boarding of the Christina M where the destination of the loaded undercover vessel was ordered to be delivered to the Bay Area in Northern California. C.Exigent Circumstances on the High Seas Since the court required probable cause, but excused the warrant requirement as it applied to Christina M, no additional discussion of exigent circumstances is deemed necessary. Suffice it to say that, if actual exigent circumstances were required under our facts," }, { "docid": "1598744", "title": "", "text": "the district court stated that “[wjhere an officer legitimately stops a car, and has probable cause to believe drugs are concealed in that car, he may conduct a warrantless search of the car and the containers within it that could conceal the object of the search,” citing United States v. Ross, 456 U.S. 798, 102 S.Ct. 2157, 72 L.Ed.2d 572 (1982). We agree. Loucks concedes that the officer had probable cause to make a warrantless search of the passenger compartment of his vehicle, but argues that there was no such probable cause to search the trunk. The government’s position is that, under the facts and circumstances outlined above, the officer had probable cause to search the entire vehicle for marijuana, and the fact that in the interior of the automobile he found marijuana, or evidences thereof, did not require him to call off the search. Both Loucks and the government rely heavily on their reading of United States v. Ross, 456 U.S. 798, 102 S.Ct. 2157, 72 L.Ed.2d 572 (1982). The facts of Ross are somewhat different from those in the instant case, although language used in Ross has present perti-nency. Ross does not involve the stopping of an automobile because the operator was driving erratically. Rather, in Ross, the police had information from a reliable informant that Ross was selling narcotics on the street and that the narcotics were kept in the trunk of his automobile. So, in Ross, it was quite apparent that there was probable cause to search the trunk of the Ross vehicle without a warrant. The issue in Ross was whether the officers could thereafter lawfully search, without a warrant, containers found within the vehicle, namely, an opaque paper bag and a leather pouch located in the trunk, the paper bag containing heroin and the leather pouch containing $3,200 in cash. In Ross, the Supreme Court upheld the validity of the warrantless search of the paper bag and the leather pouch, holding that where police officers have probable cause to search a lawfully stopped vehicle, they may conduct a warrantless search of every part of" }, { "docid": "14811032", "title": "", "text": "9 L.Ed.2d 441 (1963); Weeks v. United States, 232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652 (1914). Some of the exceptions to the fourth amendments warrant requirement include the following: (1) a limited warrantless search following an arrest, Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969); (2) A warrantless search of a vehicle as well as a warrantless search of all containers found therein where probable cause exists to believe the vehicle contains contraband, United States v. Ross, 456 U.S. 798, 825, 102 S.Ct. 2157, 2173, 72 L.Ed.2d 572 (1982); (3) a warrantless search done pursuant to consent, Schneckloth v. Bustamonte, 412 U.S. 218, 219, 93 S.Ct. 2041, 2043-44, 36 L.Ed.2d 854 (1973); (4) a warrantless inventory search of a vehicle conducted after the vehicle has been lawfully impounded by police, South Dakota v. Opperman, 428 U.S. 364, 96 S.Ct. 3092, 49 L.Ed.2d 1000 (1976) (plurality opinion). The government, of course, has the burden of showing by a preponderance of the evidence that a warrantless search comes within one of the exceptions to the fourth amendment’s warrant requirement. Coolidge v. New Hampshire, 403 U.S. 443, 455, 91 S.Ct. 2022, 2032, 29 L.Ed.2d 564 (1971). The court examines first Ibarra's argument that the evidence should be suppressed because the traffic stop was a pretext for Mahaffey to investigate more serious and unrelated criminal conduct for which he did not have reasonable suspicion needed to justify a detention. It is well established that a stop by police of a vehicle to detain its occupants, no matter how brief and limited its purpose, is a seizure within the meaning of the fourth amendment. Delaware v. Prouse, 440 U.S. 648, 653, 99 S.Ct. 1391, 1395, 59 L.Ed.2d 660 (1979). Police may stop a vehicle traveling on a public highway whenever they have probable cause to believe or reasonable suspicion that the vehicle is being driven in violation of the state’s motor vehicle laws. Id. 440 U.S. at 663, 99 S.Ct. at 1401; see also United States v. Neu, 879 F.2d 805 (10th Cir.1989). The scope of a police" }, { "docid": "8440130", "title": "", "text": "supra; (6) Random warrantless administrative stops of vehicles to check licenses and registration are impermissible under Delaware v. Prouse, 440 U.S. 648, 99 S.Ct. 1391, 59 L.Ed.2d 660 (1979), and not so under U.S. v. Hilton, supra at 132, 133, for vessels under Section 89(a) because of limited alternatives available to the government at sea as to vessel identification and safety inspections, even though such authority is largely unconstrained; and (7) Both occupants of vehicles and vessels have a lesser expectation of privacy because of the range of police regulations. A close parallel could be made between a vessel and an airplane in terms of trackless and unlimited routes and variations thereof, the anonymity of the occupant, and the difficulty in establishing the time and place of seizure. They differ in that aircrafts are not generally regarded as the occupant’s home and identification and safety inspections may not be accomplished during uncontrolled flight. The methods used to seize (stop) an airship involve problems a great deal more complicated than the Coast Guard’s stop of a vessel. Despite these differences and similarities, airplanes can be searched only on the basis of probable cause (or consent). U.S. v. Coplen, 541 F.2d 211 (9th Cir.1976). In terms of prompt, direct transportation of items, an airplane may present more of a lethal weapon for criminals than its counterpart at sea or on the land. It is submitted that the distinctions between a land vehicle and a vessel are so nominal that a separate measure or standard for justifying a search and seizure is unnecessary. The test for the sea vessel should be the same as that for the land vehicle, to wit: probable cause. B.Warrant Requirement Now that a standard of probable cause has been established for nautical searches, a discussion should ensue regarding the requirement of a warrant. When the police have probable cause to believe that contraband is present in a vehicle, they may conduct a warrantless search of the vehicle “as thorough as a Magistrate could authorize in a warrant”; i.e., it includes closed containers and suitcases within the vehicle that" }, { "docid": "9730336", "title": "", "text": "detention, which requires reasonable suspicion of criminal activity before a seizure can be made, rather than a full custodial arrest, which requires probable cause.”). To search the car, however, the officer must have probable cause to believe that the vehicle contains contraband or other evidence of criminality. See United States v. Forbes, 528 F.3d 1273, 1277-78 (10th Cir.2008) (“[T]he Fourth Amendment unquestionably prohibits the search of a vehicle’s interior unless law enforcement officials receive consent, have a warrant, or otherwise establish probable cause to support the search.”). And, while the Fourth Amendment generally requires that a search be made pursuant to a warrant to be considered reasonable, the ongoing exigent circumstance that the car might drive away has led the Supreme Court to con- elude that a warrant is not required to search a vehicle. See Maryland v. Dyson, 527 U.S. 465, 466-67, 119 S.Ct. 2013, 144 L.Ed.2d 442 (1999)(“[W]here there [is] probable cause to search a vehicle[,] a search is not unreasonable if based on facts that would justify the issuance of a warrant, even though a warrant has not been actually obtained.”)(citing United States v. Ross, 456 U.S. 798, 809, 102 S.Ct. 2157, 72 L.Ed.2d 572 (1982))(internal quotes omitted); California v. Carney, 471 U.S. 386, 393-94, 105 S.Ct. 2066, 85 L.Ed.2d 406 (1985). This rule of law is aptly referred to as the “automobile exception” to the warrant requirement. See Maryland v. Dyson, 527 U.S. at 466-67, 119 S.Ct. 2013, 144 L.Ed.2d 442. Thus, as long as the investigating officer has probable cause to believe that the vehicle contains contraband or evidence of criminality, he or she may search the vehicle. RELEVANT LAW REGARDING EXCESSIVE FORCE Courts analyze Fourth-Amendment excessive-force claims “under the ‘objective reasonableness’ standard that governs other Fourth Amendment inquiries.” Cordova v. Aragon, 569 F.3d 1183, 1188 (10th Cir.2009). See Graham v. Connor, 490 U.S. 386, 395, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989)(“[A]11 claims that law enforcement officers have used excessive force ... in the course of an arrest, investigatory stop, or other ‘seizure’ of a free citizen should be analyzed under the Fourth Amendment" }, { "docid": "23656856", "title": "", "text": "the “right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” “[I]t is a cardinal principle that ‘searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment — subject only to a few specifically established and well-delineated exceptions.’ ” United States v. Ross, 456 U.S. 798, 825, 102 S.Ct. 2157, 72 L.Ed.2d 572 (1982) (quoting Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967)). One of these specifically established exceptions is the “automobile exception” which allows the police to “search an automobile and the containers within it where they have probable cause to believe contraband or evidence is contained.” California v. Acevedo, 500 U.S. 565, 580, 111 S.Ct. 1982, 114 L.Ed.2d 619 (1991). “The scope of a warrantless search based on probable cause is no narrower — and no broader — than the scope of a search authorized by a warrant supported by probable cause. Only the prior approval of the magistrate is waived; the search otherwise is as the magistrate could authorize.” Ross, 456 U.S. at 823, 102 S.Ct. 2157. “When a legitimate search is under way, and when its purpose and its limits have been precisely defined, nice distinctions between closets, drawers, and containers, in the case of a home, or between glove compartments, upholstered seats, trunks, and wrapped packages, in the case of a vehicle, must give way to the interest in the prompt and efficient completion of the task at hand.” Id. at 821, 102 S.Ct. 2157. Against this legal backdrop, and relying on our holding in United States v. Andrus, 483 F.3d 711 (10th Cir.2007), cert. denied, - U.S. -, 128 S.Ct. 1738, 170 L.Ed.2d 542 (2008), the government urges us to apply the automobile exception not only to the seizure of the laptop and hard drives but to the search of those items as well. Andrus involved a father’s actual or apparent authority to consent to the search of a computer located in their shared residence but belonging" }, { "docid": "6618315", "title": "", "text": "in the alternative, as a limited protective search after a reasonable Terry stop and as a consent search by Mendoza. The government also contends that under the totality of circumstances standard for determining probable cause as set forth in the Supreme Court’s decision in Illinois v. Gates,-U.S. -, 103 S.Ct. 2317, 76 L.Ed.2d 527, sufficient probable cause was established in this case to justify the warrantless search of Mendoza’s automobile. In response to the government’s Gates argument, Tabares and Mendoza argue that a comparison of the facts in Gates and in the present case, clearly shows that the initial stop of Mendoza’s vehicle was illegal because the totality of the known circumstances was not sufficient to justify the stop and search. They point out that the informant’s tip in Gates was very detailed concerning the modus operandi of the drug transaction that was to occur, while here the tip was noticeably lacking in detail concerning such information as the source of the cocaine, where it was stored, how it was to be transported to Florida, and other rele vant matters. They also argue that unlike Gates, the external police investigation neither corroborated a detailed tip nor provided sufficient additional and inherently suspicious facts to support the stop and search of Mendoza’s automobile. III. A warrantless search of an automobile stopped by police officers who have probable cause to believe that an automobile contains contraband is permissible under the fourth amendment. Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925). This principle was reaffirmed and clarified in the Supreme Court’s decision in United States v. Ross, 456 U.S. 798, 102 S.Ct. 2157, 72 L.Ed.2d 572 (1982), holding that police officers who have legitimately stopped an automobile and who have probable cause to believe that contraband is concealed somewhere within it may conduct a warrantless search of the automobile that is as thorough as a magistrate could authorize by warrant. Based on these cases, it follows that if the police officers, through their collective knowledge, had probable cause to believe that contraband was contained in Mendoza’s automobile," }, { "docid": "4026662", "title": "", "text": "by the Supreme Court where supported by probable cause. See, e.g., United States v. Johns, 469 U.S. 478, 105 S.Ct. 881, 83 L.Ed.2d 890 (1985) (upholding warrantless seizure of vehicle which agents had probable cause to believe contained contraband, and warrantless search conducted three days later of packages contained in vehicle); Michigan v. Thomas, 458 U.S. 259, 261, 102 S.Ct. 3079, 3080-81, 73 L.Ed.2d 750 (1982) (upholding warrantless seizure and search of vehicle which had been towed to police station and was in police custody: \"the justification to conduct such a warrantless search does not vanish once the car has been immobilized; nor does it depend upon a reviewing court’s assessment of the likelihood in each particular case that the car would have been driven away, or ... tampered with, during the period required for the police to obtain a warrant”); United States v. Ross, 456 U.S. 798, 102 S.Ct. 2157, 72 L.Ed.2d 572 (1982) (upholding warrantless search of automobile and closed packages contained therein); Colorado v. Bannister, 449 U.S. 1, 101 S.Ct. 42, 66 L.Ed.2d 1 (1980) (per curiam) (upholding warrantless search of vehicle stopped for speeding); Chambers v. Maroney, 399 U.S. 42, 51, 90 S.Ct. 1975, 1981, 26 L.Ed.2d 419 (1970) (warrantless search of seized get-away car held proper: \"the car is movable, tiae occupants are alerted, and the car’s contents may never be found again if a warrant must be obtained\"). Similarly, numerous cases in this Circuit have upheld warrantless searches of vehicles supported by probable cause. See, e.g., United States v. Cruz, 834 F.2d 47 (2d Cir.1987) (warrantless search of vehicle proper when agents have probable cause to believe it contained contraband); United States v. Vassiliou, 820 F.2d 28 (2d Cir.1987) (same). . In parking next to the first Buick, Officer Walsh had unintentionally blocked the road. Blocking a vehicle does not convert a Terry stop into an arrest, however. United States v. Perea, 986 F.2d 633, 644 (2d Cir.1993); United States v. Vasquez, 638 F.2d 507, 522 (2d Cir.1980). . Copies of the photo arrays were provided to the defendants on or about December 7," }, { "docid": "8082748", "title": "", "text": "Supreme Court’s decision in United States v. Ross, 456 U.S. 798, 102 S.Ct. 2157, 72 L.Ed.2d 572 (1982), holding that police officers who have legitimately stopped an automobile and who have probable cause to believe that contraband is concealed somewhere within it may conduct a war-rantless search of the automobile that is as thorough as a magistrate could authorize by warrant. Based on these cases, it follows that if the police officers, through their collective knowledge, had probable cause to believe that contraband was contained in Mendoza’s automobile, their warrantless search of that automobile and the seizure of the thirty pounds of cocaine found therein, was lawful. United States v. Mendoza, 722 F.2d 96,100 (5th Cir.1983) (footnote omitted). Based on our previous discussion of the facts that support probable cause to arrest, we conclude that probable cause also existed to search the vehicle. De Los Santos argues, though, that the agents could have obtained a search warrant because the informant provided the information the evening prior to the arrest. Moreover, he asserts that there were no exigent circumstances that would allow the warrantless search. Again, we do not find these arguments persuasive. First, the failure to obtain a warrant does not taint the validity of the search; it is just one factor to consider. United States v. Thompson, 700 F.2d 944, 950 (5th Cir.1983). Also, the agents could not be certain that the tip was accurate until De Los Santos actually arrived at the suggested site. Probable cause did not arise until the morning of October 29th when the officers observed De Los Santos return to the neighborhood. At that point the information was corroborated. As we have previously observed, “[s]ince the officers were [in the area] attempting to corroborate the informant’s tip to justify ob-taming a search warrant, they cannot be faulted for failing to have one in their possession at that time.” United States v. Reyes, 792 F.2d 536, 540 (5th Cir.), cert. denied, — U.S. -, 107 S.Ct. 191, 93 L.Ed.2d 124 (1986). Related to De Los Santos’ assertion that the officers should have obtained a warrant" }, { "docid": "9654560", "title": "", "text": "“[i]n actions by the United States for forfeitures for federal statutory violations, the clerk, upon filing of the complaint, shall forthwith issue a summons and warrant for the arrest of the vessel or other property without requiring a certification of exigent circumstances.” A warrant of arrest in rem serves to bring the res within the jurisdiction of the court and authorizes the government to seize the property. Turner contends that the seizure of the Corvette pursuant to the warrant of arrest in rem violated the unreasonable seizure provision of the fourth amendment because it was issued without a prior finding of probable cause. Turner also argues that this procedure is violative of the warrant clause of the fourth amendment. A. Turner contends that the seizure of the Corvette under the warrant of arrest in rem was unreasonable because probable cause for the seizure was not determined by a judicial officer. All seizures by the government must comport with the fourth amendment which guarantees freedom from “unreasonable searches and seizures, ... and no Warrants shall issue, but upon probable cause.” U.S. Const, amend. IV. Subject to a few well-defined exceptions, searches and seizures conducted without prior judicial determination of probable cause are per se unreasonable. United States v. Ross, 456 U.S. 798, 825, 102 S.Ct. 2157, 2173, 72 L.Ed.2d 572 (1982). When law enforcement authorities have probable cause to believe an automobile contains contraband, they may seize it without a prior judicial determination of probable cause without violating the fourth amendment. United States v. $29,000—U.S. Currency, 745 F.2d 853, 854-55 (4th Cir.1984). The justification for a warrant-less seizure does not disappear merely because the vehicle has been impounded. Cf. id. at 855 (probable cause for warrantless search does not end merely because the automobile was secured); United States v. Kemp, 690 F.2d 397, 401 (4th Cir.1982) (once automobile is used in violation of the law, probable cause for seizure will not dissipate). Officer Haekert, having reasonable cause to believe that the Corvette contained contraband, was justified in seizing the automobile without a warrant. Since probable cause for the warrantless seizure did" }, { "docid": "15239730", "title": "", "text": "that his vehicle was being seized pursuant to 21 U.S.C. § 881. The seizure of the vehicle was incident to Warren’s arrest. The seizing agents had probable cause to believe that the vehicle had been used or was intended to be used in violation of the Act; and that it had facilitated the transportation, sale, receipt, possession or concealment of controlled substances. Once a vehicle is validly seized for forfeiture, a subsequent search of it is lawful. United States v. Hartman, 627 F.2d 7, 9 (6th Cir.1980); United States v. Kimak, 624 F.2d 903 (9th Cir.1980). The search of the brown tote bag containing the $400,000 is governed by United States v. Ross, 456 U.S. 798, 102 S.Ct. 2157, 72 L.Ed.2d 572 (1982). Ross held that where there is probable cause to conduct a warrantless search of a vehicle, the search properly includes containers and packages that may conceal the object of a search. Ross, 456 U.S. at 823, 102 S.Ct. at 2171. The record indicates that Warren went to the trunk of his car several times. This action provided an independent basis for the suspicion that the container in the car contained contraband or evidence. Additionally, at the time of the search the police had already discovered over 1200 pounds of cocaine in the blue van to which the Cadillac was inextricably linked. Based on these facts, the district court properly found that the search of the Cadillac, and the containers in the trunk, was reasonable and did not violate the Fourth Amendment. The search is also justified under the automobile exception to the warrant requirement. Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925). As the court held in Ross, where officers legitimately stop an automobile and have probable cause to believe that contraband is concealed somewhere within, the officers may conduct a warrantless search of the vehicle, including compartments and containers within the vehicle. Ross, 456 U.S. at 825, 102 S.Ct. at 2172. In the present case, it is clear that once the cocaine was found in the van, and in conjunction" }, { "docid": "14811031", "title": "", "text": "occurred; (3) the seizure of his vehicle — i.e. impoundment — was unlawful; and (4) his initial consent to search was not freely and voluntarily given. The case came before the court for an evidentiary hearing held on September 12, 1989. With few exceptions, the fourth amendment protects our right to privacy by prohibiting police from conducting searches without a warrant issued by a detached and neutral magistrate or court upon probable cause. “The security of one’s privacy against arbitrary intrusion by the police— which is at the core of the fourth amendment — is basic to a free society.” Wolf v. Colorado, 338 U.S. 25, 27, 69 S.Ct. 1359, 1361, 93 L.Ed. 1782 (1949). To give effect to the fourth amendment’s guarantee against unreasonable searches and seizures, and to deter illegal police conduct, the court must apply the exclusionary rule and suppress any evidence unconstitutionally obtained. Nix v. Williams, 467 U.S. 431, 442-43, 104 S.Ct. 2501, 2508-09, 81 L.Ed.2d 377 (1984); Wong Sun v. United States, 371 U.S. 471, 484, 83 S.Ct. 407, 415, 9 L.Ed.2d 441 (1963); Weeks v. United States, 232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652 (1914). Some of the exceptions to the fourth amendments warrant requirement include the following: (1) a limited warrantless search following an arrest, Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969); (2) A warrantless search of a vehicle as well as a warrantless search of all containers found therein where probable cause exists to believe the vehicle contains contraband, United States v. Ross, 456 U.S. 798, 825, 102 S.Ct. 2157, 2173, 72 L.Ed.2d 572 (1982); (3) a warrantless search done pursuant to consent, Schneckloth v. Bustamonte, 412 U.S. 218, 219, 93 S.Ct. 2041, 2043-44, 36 L.Ed.2d 854 (1973); (4) a warrantless inventory search of a vehicle conducted after the vehicle has been lawfully impounded by police, South Dakota v. Opperman, 428 U.S. 364, 96 S.Ct. 3092, 49 L.Ed.2d 1000 (1976) (plurality opinion). The government, of course, has the burden of showing by a preponderance of the evidence that a warrantless search comes within one" }, { "docid": "12049496", "title": "", "text": "intently watched oncoming traffic; and Cruz’s evasive driving when the police attempted to stop his truck. Although no single fact was sufficient by itself to establish probable cause, the totality of the circumstances as appraised by experienced drug enforcement agents was sufficient to support Cruz’s arrest at the time the truck was stopped. See Illinois v. Gates, 462 U.S. at 238, 103 S.Ct. at 2327 (noting that a totality of the circumstances analysis has traditionally been applied when making probable cause determinations). The warrantless search of Cruz’s truck was also lawful under the automobile exception to the warrant requirement. This exception to the Fourth Amendment’s warrant requirement was established in Carroll, where the Supreme Court held that when police officers have probable cause to believe that a vehicle contains contraband, the officers can conduct a warrantless search of the automobile without violating the Fourth Amendment. 267 U.S. at 149, 45 S.Ct. at 283. This exception also applies to vehicles other than automobiles. See, e.g., United States v. Johns, 469 U.S. 478, 105 S.Ct. 881, 83 L.Ed.2d 890 (1985) (upholding warrantless search of two pickup trucks). When police officers have probable cause to search an entire vehicle, they may conduct a warrantless search of every part of the vehicle and its contents, including all containers and packages in the vehicle. United States v. Ross, 456 U.S. 798, 821 & n. 28, 102 S.Ct. 2157, 2171 & n. 28, 72 L.Ed.2d 572 (1982). A warrantless search of Cruz’s truck was therefore proper because the officers had probable cause to believe that it contained contraband in light of the construction that they had observed the suspects perform on the trailer. The almost two hour delay before making the search was not unreasonable and does not change the result. “There is no re quirement that the warrantless search of a vehicle occur contemporaneously with its lawful seizure.” United States v. Johns, 469 U.S. at 484, 105 S.Ct. 885 (holding that when officers had probable cause to search vehicles for contraband, a warrantless search three days after the trucks had been seized of packages unloaded" }, { "docid": "22249073", "title": "", "text": "the agent’s smelling of the marijuana which gave rise to the probable cause needed to do a warrantless search if that probable cause did not previously exist. C. Searches Subsequent to Entry Because we find that warrant-less entry into Ackerson’s house justifiable, we hold the search of the garage and seizure of the cocaine to be permissible under the Fourth Amendment. Moreover, the protective sweep of the house subsequent to the arrests was also permissible. “The Fourth Amendment permits a properly limited protective sweep in conjunction with an in-home arrest when the searching officer possesses a reasonable belief based on specific and articulable facts that the area to be swept harbors an individual posing a danger to those on the arrest scene.” Maryland v. Buie, — U.S. -, 110 S.Ct. 1093, 1099-1100, 108 L.Ed.2d 276 (1990). The fact that there were three vehicles on the scene coupled with Ackerson’s lying about Tobin’s presence clearly gave rise to a reasonable belief that someone else could be hiding in the house. The agents were, of course, free to seize any evidence they discovered in plain view within the proper scope of the protective sweep. Coolidge v. New Hampshire, 403 U.S. 443, 465, 91 S.Ct. 2022, 2037, 29 L.Ed.2d 564 (1971) (“Where the initial intrusion that brings the police within plain view of [contraband] is supported, not by a warrant, but by one of the recognized exceptions to the warrant requirement, the seizure is ... legitimate.”). Discovery and seizure of the marijuana in the shower stall was therefore legitimate. Moreover, the search of the station wagon may be justified on the basis of the automobile exception. United States v. Ross, 456 U.S. 798, 807-808, 102 S.Ct. 2157, 2163-2164, 72 L.Ed.2d 572 (1982). The agent’s sighting of the screws removed from the wheel well cover clearly gave rise to probable cause to believe the wheel well contained contraband. The evidence of exigent circumstances need not be overwhelming to justify the warrantless search of an automobile. Alexander, 835 F.2d at 1409. Both Tobin and Ackerson denied ownership of the vehicle, indicating to the agent that" } ]

[ { "docid": "22682672", "title": "", "text": "after further proceedings on remand. Accordingly, we hold that the BIA on remand need not necessarily deem credible the petitioner’s testimony when we have remanded because the petitioner was not asked about inconsistencies, or because the IJ did not address the petitioner’s explanation of perceived inconsistencies. Ill The IJ and BIA’s adverse credibility determination was not supported by substantial evidence. We remand on an open record to give the agency the opportunity to evaluate Soto-Olarte’s credibility while allowing him to explain as-yet-unexplained inconsistencies concerning the June 2003 incident and while considering the explanations that he has already provided. Because the BIA has not evaluated Soto-Olarte’s and La Torre’s eligibility for asylum or withholding of removal independently from its adverse credibility finding, we also remand to give the agency an opportunity to make those determinations in the first instance. We do not remand the petitioners’ CAT claim, because that claim was not presented as part of this appeal. See Smith v. Marsh, 194 F.3d 1045, 1052 (9th Cir.1999) (“[0]n appeal, arguments not raised by a party in its opening brief are deemed waived.”). PETITION FOR REVIEW GRANTED; CASE REMANDED IN PART. . Although we conclude that the absence of an opportunity to explain inconsistencies was one reason that the IJ's adverse credibility finding was not supported by substantial evidence, we reject Soto-Olarte's related argument that the lack of inquiry about those inconsistencies at the hearing violated due process, given that Soto-Olarte had an opportunity to offer explanations for those inconsistencies or otherwise dispute the adverse credibility finding in his appeal to the BIA. Cf. Campos-Sanchez, 164 F.3d at 450 (holding in the context of a due process analysis that \"[w]hen the BIA decides a case based on an independent, adverse, credibility determination, contrary to that reached by the IJ, it must give the petitioner an opportunity to explain any alleged inconsistencies that it raises for the first time.” (emphasis added)). . Our deemed credible rule is distinct from a closely related procedure that we follow when the BIA or U finds the petitioner not credible and then makes an alternate holding" } ]

[ { "docid": "10089746", "title": "", "text": "because the IJ did not give Bhattarai notice and an opportunity to present the corroborative testimony before denying his asylum application. See Ren, 648 F.3d at 1091. The government argues that Bhattarai was on notice of the need for his brother’s testimony. It points out that the government attorney questioned Bhattarai during the hearing about why his brother hadn’t appeared to testify, and that the IJ overruled Bhattarai’s counsel’s objection by saying that this line of questions “went to credibility.” However, even if this was enough to alert Bhattarai that his brother’s absence was fatal to his claim — which we are not sure it was — the IJ did not give Bhattarai an opportunity to provide his brother’s testimony after her determination that it was necessary. See id. (if an IJ determines that corroboration is required, “the applicant must then have an opportunity to provide it....”) (emphasis added). Instead, at the end of the merits hearing in July 2011, the IJ ordered the evidentiary record “closed.” Thus, by the time he knew he should have brought his brother to the hearing, Bhattarai was out of luck. Because the IJ did not give him an opportunity to provide his brother’s testimony or explain why he could not, the absence of this corroborative evidence cannot be the basis for denying him relief. See Zhi, 751 F.3d at 1095; see also Chen v. Ashcroft, 362 F.3d 611, 620 (9th Cir. 2004) (“[W]e have held that due process requires that an applicant be given a second opportunity to' establish eligibility for asylum where the adverse credibility determination was based, without notice to the applicant, on a failure to produce a relative as a corroborating witness.”). b. Supporting Letters We now return to whether the absence from the supporting letters of specific dates and details of the Maoist attacks is a sufficient ground to deny relief. Even if evidence corroborating these dates and details was reasonably required to sustain Bhattarai’s burden of proof, the IJ erred under Ren. The IJ never mentioned the inadequacy of the supporting letters Bhat-tarai submitted, or suggested a need" }, { "docid": "3417136", "title": "", "text": "Nigeria”, which undermined Oshodi’s claim that “he would be identified and detained in Nigeria because of his name.” The IJ also observed that Oshodi’s brother was sitting in court during the entire proceeding and failed to testify or submit an affidavit to corroborate Oshodi’s claims. The IJ concluded that Oshodi should have “provided] evidence that corroborated his] testimony” and denied Oshodi’s requests for asylum, withholding of removal, and relief under the CAT. The BIA upheld the IJ’s adverse credibility determination and dismissed Osho di’s appeal. Oshodi then petitioned this court for review, and we remanded the case to the BIA to analyze and consider: “a) the impact of the REAL ID Act on the BIA’s finding that petitioner’s claims for relief and protection were not sufficiently corroborated; b) the legislative history of the REAL ID Act’s credibility provisions, and its impact upon the immigration Judge’s [sic] credibility determination; and c) any other issues the BIA deems appropriate to address if it chooses to permit further briefing from counsel.” On remand, the BIA concluded that the REAL ID Act codified the BIA’s corroboration requirements and that Oshodi failed to provide corroborating evidence. The BIA further considered the fact that the REAL ID Act changed the “heart of the claim” analysis to a “totality of the circumstances” analysis and found “no clear error in the Immigration Judge’s adverse credibility finding ...” Oshodi filed a timely petition for review. II. STANDARD OF REVIEW “The decision that an alien has not established eligibility for asylum or withholding of removal is reviewed for substantial evidence.” Malkandi v. Holder, 576 F.3d 906, 912 (9th Cir.2009), as amended (citation and internal quotation marks omitted). “Under the substantial evidence standard, administrative findings of fact are conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary.” Id. (citation and internal quotation marks omitted). “Under the substantial evidence standard, we may reverse a BIA credibility determination only if the evidence that the petitioner presented was so compelling that no reasonable factfinder could find that the petitioner was not credible.” Id. at 917 (citation, alteration, and internal quotation" }, { "docid": "22131465", "title": "", "text": "on this subject is consistent throughout the hearing. Finally, the IJ found Ge incredible because he did not produce employment records confirming his dates of employment with the government shipping company. Here, such records were not “easily available” because Ge’s employer had fired him. Cf. Sidhu v. INS, 220 F.3d 1085, 1092 (9th Cir.2000) (adverse credibility determination may be based on failure to produce non-duplicative, material, and easily available corroborating evidence where applicant provides no credible explanation for such failure). Moreover, because Ge provided credible and consistent testimony, no further corroboration is required. See Salaam v. INS, 229 F.3d 1234, 1239 (9th Cir.2000). We find that the IJ’s adverse credibility determination is unsupported by substantial evidence and that Ge’s testimony is credible. Because we hold that Ge produced credible evidence under the law of this circuit, we accept his testimony as true. See id. IV Pursuant to INA section 101(a)(42)(B) and the BIA’s decision in In re C-Y-Z, 21 I. & N. Dec. 915, 918-20 (BIA 1997), Ge is automatically eligible for asylum if he can show that his wife was forced to undergo an abortion under China’s one-child policy. See also Ma v. Ashcroft, 361 F.3d 553, 559 (9th Cir.2004) (internal citations omitted) (“The BIA and the courts have uniformly applied the statute’s protections to husbands whose wives have undergone abortions or sterilization procedures, as well as to the wives themselves.”); He v. Ashcroft, 328 F.3d 593, 604 (9th Cir.2003). Accepting Ge’s testimony as true, he has conclusively established past persecution and eligibility for asylum. Id. On remand, the BIA shall, on behalf of the Attorney General, exercise discretion regarding whether to grant asylum. Because the BIA did not consider whether Ge had met the more stringent requirements for withholding of removal, we remand for the BIA to determine, in the first instance, whether there is a clear probability that Ge would be persecuted if returned to China. See id. Review GRANTED. REMANDED. . Ge testified that at the time, \"the policy” of the government-owned company was that a husband and wife could not be fired simultaneously for violating" }, { "docid": "22614306", "title": "", "text": "the necessary affidavits or declarations.”). Accordingly, due process principles require that Petitioner be given a second opportunity to prove his eligibility for asylum to an IJ, along with an opportunity to call his father as a witness who can potentially corroborate the facts alleged in Petitioner’s application. VI. For the foregoing reasons, the petition for review is GRANTED. We remand to the BIA with instructions that it remand for further proceedings consistent with this opinion. . If Petitioner's trial counsel actually believed that Petitioner's father would corroborate Petitioner's testimony, but nevertheless advised Petitioner not to bring his father to the IJ hearing, then trial counsel's performance is open to serious question. Because Petitioner does not assert that his trial counsel's decision was so poor as to render him ineffective, we do not address the claim here. . Petitioner argues that a failure to corroborate testimony can never be held against an asylum applicant. We reject this argument categorically. Petitioner had provided no sensible reason why we should establish a rule that creates a disincentive for asylum applicants to bring forward highly pertinent information. Corroborating evidence is often scarce in asylum proceedings, but where it is easily available, no rational legal regime would discourage applicants from bringing it to the attention of the trier of fact. As our recent opinion in Ladha v. INS, 215 F.3d 889 (9th Cir. 2000), makes clear, Ladha's holding—that corroboration of credible testimony is unnecessary—has no bearing on the question of whether failure to corroborate can justify an adverse credibility determination. See id. at 900 n. 11 (\"We do not address if or when it is proper to consider the 'availability' of corroborating evidence as a basis for an adverse credibility finding; we are concerned only with the body of cases addressing corroboration after a finding that an applicant is credible.”). . In this case Petitioner was specifically asked to explain the lack of corroboration and presented an explanation that both the IJ and BIA explicitly found incredible. . Nor may an IJ base an adverse credibility finding on his disbelief of ah applicant’s explanation for" }, { "docid": "22641218", "title": "", "text": "Canjura-Flores, 784 F.2d at 888-89, with all the consequences attached to that determination, see, e.g., Ladha, 215 F.3d at 899 (corroborative evidence not required where the applicant has been found credible). IV. Conclusion Because we conclude that the BIA violated Manimbao’s due process rights when it improperly resolved the issue of his credibility, we remand this matter to the BIA. On remand, the BIA can either accept Manimbao’s story as credible (and determine on that basis whether he meets the statutory eligibility requirements for asylum, and if so, whether he should be granted asylum), or may conduct further proceedings consistent with this opinion. We do not reach the issue of Manim-bao’s statutory eligibility for asylum because the BIA never reached it. Rather, we remand this issue for an initial determination by the BIA. INS v. Ventura, 537 U.S. 12, 123 S.Ct. 353, 355, 154 L.Ed.2d 272 (2002). PETITION GRANTED IN PART, REMANDED. . That the some of the issues regarding credibility were addressed in Manimbao's brief to the BIA does not change our conclusion. Absent proper notice from the IJ or BIA, Man-imbao lacked proper notice that his credibility was at issue, and therefore lacked constitutionally sufficient opportunity to respond to any attacks on his credibility. TROTT, Circuit Judge, dissenting. The majority holds that the BIA violated Manimbao’s Fifth Amendment due process rights by rendering an adverse credibility determination after the IJ failed to make an explicit adverse credibility determination in the first instance. I respectfully disagree, and thus, I dissent. “When the BIA decides an asylum case ‘based on an independent, adverse credibility determination, contrary to that reached by the IJ, it must give the petitioner an opportunity to explain any alleged inconsistencies that it raises for the first time.’ ” Abovian v. INS, 219 F.3d 972, 978 (9th Cir.) amended by 228 F.3d 1127 and 234 F.3d 492 (2000) (quoting Campos-Sanchez v. INS, 164 F.3d 448, 450 (9th Cir.1999)). In probing for a due process violation, the crucial inquiry is whether the petitioner had “notice that [his] credibility was questioned or that [he] should provide the BIA with" }, { "docid": "22614305", "title": "", "text": "the due process concerns discussed below, we remand for a new hearing in the case at bar. V. Petitioner argues that his due process rights were violated because he was never given notice that the IJ could question his credibility based on his failure to present his father as a witness. If the IJ or BIA had considered Petitioner’s case subsequent to our decision in Mejia-Paiz, we would reject his argument without hesitation. But as it stands, Petitioner’s IJ hearing preceded our decision in Mejia-Paiz by fourteen months, and the deadline for the filing of Petitioner’s BIA brief was eleven months before Mejia-Paiz. Because Mejia-Paiz established a clear rule on a legal issue that had previously been unsettled, both under our law ánd under the BIA’s, principles of due process prevent us from holding Petitioner to its evidentiary standard. Cf. Singh v. INS, 213 F.3d 1050, 2000 WL 675138, at *4 (9th Cir. May 25, 2000) (“[H]ad Singh been notified of the newly announced evidentiary requirements, he may very well have been able to secure the necessary affidavits or declarations.”). Accordingly, due process principles require that Petitioner be given a second opportunity to prove his eligibility for asylum to an IJ, along with an opportunity to call his father as a witness who can potentially corroborate the facts alleged in Petitioner’s application. VI. For the foregoing reasons, the petition for review is GRANTED. We remand to the BIA with instructions that it remand for further proceedings consistent with this opinion. . If Petitioner's trial counsel actually believed that Petitioner's father would corroborate Petitioner's testimony, but nevertheless advised Petitioner not to bring his father to the IJ hearing, then trial counsel's performance is open to serious question. Because Petitioner does not assert that his trial counsel's decision was so poor as to render him ineffective, we do not address the claim here. . Petitioner argues that a failure to corroborate testimony can never be held against an asylum applicant. We reject this argument categorically. Petitioner had provided no sensible reason why we should establish a rule that creates a disincentive for" }, { "docid": "22663619", "title": "", "text": "3 (affirming adverse credibility finding despite disagreeing with one of the bases for that finding because “the other inconsistencies on which the BIA relied [we]re sufficient to support its judgment”); see also Tarrawally v. Ashcroft, 338 F.3d 180, 187 (3d Cir.2003) (affirming adverse credibility finding as supported by “substantial evidence” even though “[s]ome of the IJ’s reasons for his adverse credibility determination were based on presumptions not grounded in the record”); Hakeem v. INS, 273 F.3d 812, 816 (9th Cir.2001) (finding part of IJ’s reasoning “[unjpersuasive” but denying petition for review where “[t]he IJ offered alternative reasons .... [that] [we]re supported by substantial evidence”); Ceballos-Castillo v. INS, 904 F.2d 519, 521 (9th Cir.1990) (affirming adverse credibility determination “[e]ven though ... one of four reasons cited by the BIA [wa]s not supported by the record” because the BIA’s determination of “incredibility] [found] substantial support in the record”); cf. Jin Shui Qiu v. Ashcroft, 329 F.3d 140, 149 (2d Cir.2003) (stating that “we will vacate BIA conclusions ... insofar as the BIA ... has not supported its findings with record evidence”). Applying this well-established standard of substantial evidence to the facts of this case, we deny the petition for review of the IJ’s denial of withholding of removal because, although the underlying analysis of the IJ contains errors, the IJ’s ultimate ruling — namely, that petitioner failed to provide a credible account of persecution and thus failed to satisfy her burden of proof — is supported by substantial evidence and it is clear that the same decision would be made on remand. Petitioner’s claims that the IJ erred in other respects — (1) by failing to articulate specific reasons for denying her CAT claim beyond his adverse credibility finding, (2) by making insufficient findings with respect to the corroborating documents she submitted in support of her application while improperly faulting her for not producing others, and (3) by relying on the State Department profile — are similarly without merit. First, as we explained in Ramsameachire v. Ashcroft, 357 F.3d 169 (2d Cir.2004), because a “CAT claim lacks a subjective element, focuses broadly" }, { "docid": "22537468", "title": "", "text": "corroboration did not merit relief because the IJ’s “adverse credibility findings, by themselves, constitute^] substantial evidence to support” the denial of petitioner’s asylum application); Ramsameachire, 357 F.3d at 182 n. 3 (affirming adverse credibility finding despite disagreeing with one of the bases for that finding because “the other inconsistencies on which the BIA relied [we]re sufficient to support its judgment”); see also Tarrawally v. Ashcroft, 338 F.3d 180, 187 (3d Cir.2003) (affirming adverse credibility finding as supported by “substantial evidence” even though “[s]ome of the IJ’s reasons for his adverse credibility determination were based on presumptions not grounded in the record”); Hakeem v. INS, 273 F.3d 812, 816 (9th Cir.2001) (finding part of IJ’s reasoning “[un]persuasive” but denying petition for review where “[t]he IJ offered alternative reasons .... [that] [we]re supported by substantial evidence”); Ceballos-Castillo v. INS, 904 F.2d 519, 521 (9th Cir.1990) (affirming adverse credibility determination “[e]ven though ... one of four reasons cited by the BIA [wa]s not supported by the record” because the BIA’s determination of “incredibility] [found] substantial support in the record”); cf. Jin Shui Qiu v. Ashcroft, 329 F.3d 140, 149 (2d Cir.2003) (stating that “we will vacate BIA conclusions ... insofar as the BIA ... has not supported its findings with record evidence”). Applying this well-established standard of substantial evidence to the facts of this case, we deny the petition for review of the IJ’s denial of withholding of removal because, although the underlying analysis of the IJ contains errors, the IJ’s ultimate ruling — namely, that petitioner failed to provide a credible account of persecution and thus failed to satisfy her burden of proof — is supported by substantial evidence and it is clear that the same decision would be made on remand. Petitioner’s claims that the IJ erred in other respects — (1) by failing to articulate specific reasons for denying her CAT claim beyond his adverse credibility finding, (2) by making insufficient findings with respect to the corroborating documents she submitted in support of her application while improperly faulting her for not producing others, and (3) by relying on the State" }, { "docid": "22614304", "title": "", "text": "given an opportunity at his IJ hearing to explain his failure to produce material corroborating evidence. Moreover, the corroborating evidence must be both material to the petitioner’s asylum claim and non-duplicative of other corroboration. Thus, where an applicant produces credible corroborating evidence to buttress an aspect of his own testimony, an IJ may not base an adverse credibility determination on the applicant’s failure to produce additional evidence that would further support that particular claim. Finally, as we have indieated, the evidence must be easily available. As we held in Lopez-Reyes v. INS, 79 F.3d 908, 912 (9th Cir.1996), it is inappropriate to base an adverse credibility determination on an applicant's inability to obtain corroborating affidavits from relatives or acquaintances living outside of the United States—such corroboration is almost never easily available. In conclusion, where the IJ has reason to question the applicant’s credibility, and the applicant fails to produce non-duplicative, material, easily available corroborating evidence and provides no . credible explanation for such failure, an adverse credibility finding will withstand appellate review. However, because of the due process concerns discussed below, we remand for a new hearing in the case at bar. V. Petitioner argues that his due process rights were violated because he was never given notice that the IJ could question his credibility based on his failure to present his father as a witness. If the IJ or BIA had considered Petitioner’s case subsequent to our decision in Mejia-Paiz, we would reject his argument without hesitation. But as it stands, Petitioner’s IJ hearing preceded our decision in Mejia-Paiz by fourteen months, and the deadline for the filing of Petitioner’s BIA brief was eleven months before Mejia-Paiz. Because Mejia-Paiz established a clear rule on a legal issue that had previously been unsettled, both under our law ánd under the BIA’s, principles of due process prevent us from holding Petitioner to its evidentiary standard. Cf. Singh v. INS, 213 F.3d 1050, 2000 WL 675138, at *4 (9th Cir. May 25, 2000) (“[H]ad Singh been notified of the newly announced evidentiary requirements, he may very well have been able to secure" }, { "docid": "22334054", "title": "", "text": "in vain for a specific and cogent reason for his adverse credibility determination, we do not mean to imply that an IJ must provide extensive reasons for each and every item of testimony that is rejected. We make this point because our deferential standard of review does not allow us to micromanage IJ decision making. See Blanco de Belbruno v. Ashcroft, 362 F.3d 272, 278 (4th Cir.2004) (“[Agency] determinations concerning asylum eligibility ... are conclusive if supported by reasonable, substantial, and probative evidence on the record considered as a whole”) (internal quotation marks omitted) (emphasis added). Moreover, the requirement that an IJ provide a specific and cogent reason for an adverse credibility finding leaves ample room for the IJ “to exercise common sense in rejecting [an applicant’s] testimony even if the IJ cannot point to ... contrary evidence in the record to refute it.” Jibril v. Gonzales, 423 F.3d 1129, 1135 (9th Cir.2005). The IJ erred in this case simply because he gave no cogent explanation based on common sense, the record, or any other relevant factor for disbelieving Tewabe. In sum, further proceedings are necessary for the agency (beginning with the IJ) to determine whether Tewabe can meet her burden of proving all of the elements of her claim for asylum or other requested relief. These proceedings must be conducted without any consideration of the IJ’s prior adverse credibility determination. Accordingly, we grant the petition for review, vacate the BIA’s order affirming the IJ’s decision, and remand the case to the BIA for further proceedings. PETITION FOR REVIEW GRANTED; VACATED AND REMANDED When the IJ decided Tewabe's case in 2002, he did not have the benefit of section 101(a)(3)(B)(iii) in the REAL ID Act of 2005, Pub.L. No. 109-13, 119 Stat. 302, 303, which provides guidance to IJs for making credibility determinations in asylum cases. The section, codified at 8 U.S.C. § 1158(b)(l)(B)(iii), states: Considering the totality of the circumstances, and all relevant factors, a trier of fact may base a credibility determination on the demeanor, candor, or responsive ness of the applicant or witness, the inherent plausibility of" }, { "docid": "22331337", "title": "", "text": "101 F.3d 614, 616 (9th Cir.1996). Likewise, when each of the IJ’s or BIA’s proffered reasons for an adverse credibility finding fails, we must accept a petitioner’s testimony as credible. Neither the BIA nor the IJ pointed to any “weakness” in Kaur’s case other than the adverse credibility finding, which we have held to be insufficiently supported. In light of the absence of any other “weaknesses” in Kaur’s testimony and our clear precedent that outside corroboration is not required when a petitioner’s testimony is credible, Kaur is not required to provide corroboration to establish the facts to which she testified. Furthermore, the type of corroboration that the IJ thought necessary — affidavits or letters from Mends and neighbors in India — was inappropriate. When required, corroborative materials may be requested by the IJ if they are “easily available.” Sidhu, 220 F.3d at 1092. It is generally inappropriate, however, “to base an adverse credibility determination on an applicant’s inability to obtain corroborating affidavits from relatives or acquaintances living outside of the United States — such corroboration is almost never easily available.” Id. at 1091-92. Conclusion We hold that the BIA’s reasons for finding Kaur not credible were not specific and cogent, and that his adverse credibility finding was therefore not based on substantial evidence. We grant the petition for review and remand for further proceedings consistent with this disposition. See INS v. Ventura, 537 U.S. 12, 16, 123 S.Ct. 353, 154 L.Ed.2d 272 (2002). Petition GRANTED and case REMANDED for further proceedings. TALLMAN, Circuit Judge, dissenting: The central issue in this appeal is whether the immigration judge’s adverse credibility determination is supported by “specific, cogent” reasons that are “substantial and bear a legitimate nexus to the finding.” Salaam v. INS, 229 F.3d 1234, 1238 (9th Cir.2000) (internal quotation marks and citations omitted). In order to grant Kaur’s petition we must determine that her 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); see also id. at 481 n. 1," }, { "docid": "10089747", "title": "", "text": "have brought his brother to the hearing, Bhattarai was out of luck. Because the IJ did not give him an opportunity to provide his brother’s testimony or explain why he could not, the absence of this corroborative evidence cannot be the basis for denying him relief. See Zhi, 751 F.3d at 1095; see also Chen v. Ashcroft, 362 F.3d 611, 620 (9th Cir. 2004) (“[W]e have held that due process requires that an applicant be given a second opportunity to' establish eligibility for asylum where the adverse credibility determination was based, without notice to the applicant, on a failure to produce a relative as a corroborating witness.”). b. Supporting Letters We now return to whether the absence from the supporting letters of specific dates and details of the Maoist attacks is a sufficient ground to deny relief. Even if evidence corroborating these dates and details was reasonably required to sustain Bhattarai’s burden of proof, the IJ erred under Ren. The IJ never mentioned the inadequacy of the supporting letters Bhat-tarai submitted, or suggested a need for more specific documents corroborating dates and details, until she announced her decision. Thus, Bhattarai could not “act on the IJ’s determination that he ‘should provide’ corroboration” because he was “not given notice of that determination until it [wa]s too late to do so.” Ren, 648 F.3d at 1091. Bhattarai’s attempt to supplement the record with more detailed letters perfectly illustrates the importance of the Ren rule. After the IJ issued her decision stating that the supporting letters in the record were too vague and did not contain specific dates, Bhattarai was able to obtain new letters from the NCP and UNESCO-YN verifying the specific attacks he suffered on particular dates. But the BIA refused to reopen his case to consider the new evidence because, in its view, Bhattarai could have obtained this evidence at the time of the previous hearing. Bhattarai thus found himself in an impossible situation: he did not know until after the hearing that certain evidence was required, but once he knew, he could not submit it because, in the view" }, { "docid": "22770440", "title": "", "text": "that he is likely to be tortured if returned to China. Chen argues that the IJ should have considered (1) whether Chen’s wife’s forced abortion constituted torture of Chen, and (2) whether background materials established that Falun Gong members were likely to be tortured. Because we affirm the IJ’s finding that Chen failed to prove he was a Falun Gong member, we reject the latter argument. Because we remand for further proceedings on Chen’s claim that his wife was subjected to coercive population control, Chen may pursue the former argument before the IJ and BIA on remand, and we will allow the IJ and BIA to address it in the first instance. Y. Appropriate Remedy Relying on the decision of the Ninth Circuit Court of Appeals in He v. Ashcroft, 328 F.3d 593 (9th Cir.2003), Chen argues that, once it is concluded that the IJ’s adverse credibility finding was not supported by substantial evidence, he must be deemed credible, and is therefore entitled to reversal of the BIA’s order, i.e., a finding that he is eligible for asylum, and to remand for a determination of whether he will be granted asylum in the exercise of discretion. In He the court held that where credibility is the only issue in the case, and where it is accordingly clear that the applicant’s story, if true, establishes eligibility for asylum, the appropriate course on finding that the BIA’s adverse credibility finding was not supported by substantial evidence is to reverse and remand for a determination of whether asylum will be granted in the exercise of discretion, as well as to determine whether the applicant is entitled to withholding of removal. He, 328 F.3d at 604. The court reasoned that “[t]he [Government], having lost this appeal, should not have repeated opportunities to show that Mr. He is not credible any more than Mr. He, had he lost, should have an opportunity for remand and further proceedings to establish his credibility.” Id. This reasoning would perhaps be persuasive had the IJ based his credibility finding solely on an erroneous analysis of the birth control certificates." }, { "docid": "10089732", "title": "", "text": "as well as a copy of Bhattarai’s brother’s passport. The BIA denied Bhattarai’s appeal and motion to remand on December 5, 2012. The BIA found no clear error in the IJ’s adverse credibility finding, and refused to remand for consideration of the additional evidence, on the ground that it had been available and could have been presented at the time of Bhattarai’s hearing before the IJ. Bhattarai filed a timely petition for review with this court. II. Standard of Review Where, as here, the BIA agrees with and incorporates specific findings of the IJ while adding its own reasoning, we review both decisions. Vahora v. Holder, 641 F.3d 1038, 1042 (9th Cir. 2011). “We review factual findings, including adverse credibility determinations, for substantial evidence.” Garcia v. Holder, 749 F.3d 785, 789 (9th Cir. 2014). We will uphold the finding “unless any reasonable adjudicator would be compelled to conclude to the contrary.” Id. (quoting 8 U.S.C. § 1252(b)(4)(B)). We review questions of law de novo. Id. III. Discussion A. Asylum and Withholding of Removal An applicant for asylum and withholding of removal bears the burden of establishing eligibility. 8 U.S.C. §§ 1158(b)(l)(B)(I), 1229a(c)(4)(A). Under the REAL ID Act, which applies to applications filed after May 11, 2005, an applicant may establish eligibility on his credible testimony alone, without any corroboration. 8 U.S.C. § 1158(b)(l)(B)(ii). However, “[w]here the trier of fact determines that the applicant should provide evidence that corroborates otherwise credible testimony, such evidence must be provided unless the applicant does not have the evidence and cannot reasonably obtain the evidence.” Id. In Ren v. Holder, we held that this provision requires an IJ to “provide an applicant with notice and an opportunity to either produce [corroborative] evidence or explain why it is unavailable before ruling that the applicant has failed in his obligation to provide corroborative evidence.” 648 F.3d at 1090. Our conclusion was based on a detailed textual analysis of § 1158(b)(l)(B)(ii) and supported by the constitutional avoidance canon, because requiring an applicant to provide corroborative evidence before he knew it was necessary would “raise ... due process concerns.”" }, { "docid": "22699109", "title": "", "text": "is deemed to be credible, the BIA erred by requiring him to produce corroborating evidence. See Ladha, 215 F.3d at 901. Our decision in Sidhu v. INS, 220 F.3d 1085 (9th Cir.2000) is not to the contrary. In Sidhu, the applicant was a native and citizen of India who claimed persecution by Sikh separatists and the government. The asylum claim was based primarily on an incident that occurred on the applicant’s family farm in which the applicant and his father were forced to provide aid to Sikh militants. See id. at 1087. The BIA found that the applicant was not credible because the applicant failed to offer a credible explanation for why he did not present the testimony of his father (who was present in the United States at the time of the asylum hearing) at the asylum hearing. See id. at 1088. We denied the petition for review, holding that “where the IJ has reason to question the applicant’s credibility, and the applicant fails to produce non-duplicative, material, easily available corroborating evidence and provides no credible explanation for such failure, an adverse credibility finding will withstand appellate review.” Id. at 1092; see also Mejia-Paiz v. INS, 111 F.3d 720, 724 (9th Cir.1997) (affirming IJ’s adverse credibility finding based on alien’s failure to produce readily-accessible, material corroborating evidence). Here, unlike in Sidhu, the BIA did not make an adverse credibility finding. Instead, the BIA merely noted questions about Kataria’s claim and concluded that Kataria failed to meet his burden of establishing asylum eligibility. We made this distinction in Sidhu: “As our recent opinion in Ladha v. INS, 215 F.3d 889 (9th Cir.2000), makes clear, Ladha’s holding-that corroboration of credible testimony is unnecessary-has no bearing on the question of whether failure to corroborate can justify an adverse credibility determination.” Sidhu, 220 F.3d at 1090 n. 2. V. Treating Kataria’s testimony as credible and applying the governing law of this circuit, we conclude that the evidence compels the conclusion that Kataria has established past persecution on account of his political opinion. See Navas, 217 F.3d at 655-56 (“In order to establish eligibility" }, { "docid": "22426756", "title": "", "text": "and substantial reasons that we require to support an adverse credibility finding. See Gui v. INS, 280 F.3d 1217, 1225 (9th Cir.2002); see also Chen v. Ashcroft, 362 F.3d 611, 621 (9th Cir.2004) (holding that an IJ’s \"general conclusion\" that the petitioner's testimony, taken as a whole, was not credible, \"amounts to no more than speculation and conjecture once we reverse each of the IJ's credibility findings” and thus could not support an adverse credibility determination). . Although Marcos told the IJ he could produce the identity document, she demanded it immediately on the day of the hearing. Marcos does not raise an objection to the IJ’s requirement; given our disposition we need not address this argument in any event. But we note that such a requirement raises serious due process concerns by depriving Marcos of his guarantee of \"a reasonable opportunity to present evidence on his behalf .... ” See Cano-Merida v. INS, 311 F.3d 960, 964 (9th Cir.2002); see also Chen, 362 F.3d at 620 (\"we have held that due process requires that an applicant be given a second opportunity to establish eligibility for asylum where the adverse credibility determination was based, without notice to the applicant, on a failure to produce a relative as a corroborating witness”); Campos-Sanchez v. INS, 164 F.3d 448, 450 (9th Cir.1998) (\"the BIA must provide a petitioner with a reasonable opportunity to offer- an explanation of any perceived inconsistencies that form the basis of a denial of asylum\"). . In any event, the IJ took this phrase out of context. The 1997 Country Report in fact states: The Government generally respected the human rights of its citizens; however, there were problems in some areas. Members of the security forces were responsible for extrajudicial killings, disappearances, torture and other physical abuse of suspects, and arbitrary arrest and detention. Country Report at 1. Furthermore, the State Department’s 1998 Profile of Asylum Claims and Country Conditions regarding the Philippines (\"Profile”), which the IJ admitted 'into evidence, notes that \"[n]ongovernmental organizations (NGO’s), which include the Com mission on Human Rights (CHR), place the blame for the" }, { "docid": "22601889", "title": "", "text": "and fair hearing,’ in order to meet the requirements of due process.” Id. A petition for review will only be granted on due process grounds if “(1) the proceeding was so fundamentally unfair that the alien was prevented from reasonably presenting his case, and (2) the alien demonstrates prejudice, which means that the outcome of the proceeding may have been affected by the alleged violation.” Ibarra-Flores v. Gonzales, 439 F.3d 614, 620-21 (9th Cir.2006). First, Zetino’s proceedings were not so fundamentally unfair that he was prevented from reasonably presenting his case. An alien has been provided with due process when he or she is given an opportunity “to be represented by counsel, prepare an application for ... relief, and ... present testimony and other evidence in support of the application.” Vargas-Hernandez v. Gonzales, 497 F.3d 919, 926-27 (9th Cir.2007). We have held that a petitioner’s due process rights are violated if the BIA refuses to accept a late brief where the alien followed all procedures but the BIA sent the briefing schedule and transcript to an incorrect address. See Singh v. Ashcroft, 362 F.3d 1164, 1168-69 (9th Cir.2004). In Singh, the petitioner was unable to refute an I J’s adverse credibility finding in front of the BIA because he was never given notice of the briefing schedule. Id. at 1168. Here, not only was there no adverse credibility finding, but Zetino received an initial briefing schedule as well as a supplemental briefing schedule affording him a two week extension at his Texas detention facility. His failure to timely file a brief by the date of which he had advance notice was not due to the actions of the BIA, but rather to his six year delay in securing counsel. While Zetino does not claim ineffective assistance of counsel, we have held that a petitioner’s due process rights are not violated even where the failure to file the brief on time is the result of the petitioner’s counsel’s mistake. See Rojas-Garcia v. Ashcroft, 339 F.3d 814, 822 (9th Cir.2003). Here, Zetino did not secure his counsel until five days after the" }, { "docid": "22736094", "title": "", "text": "sum, we reverse the BIA’s adverse credibility determination. The BIA failed to provide “a legitimate, articulable basis to question the petitioner’s credibility.” Shah, 220 F.3d at 1067. Dr. Singh’s letter supports Singh’s testimony, the uncertainty regarding the location of the January 1997 political rally is a minor inconsistency, and the BIA identified no particular instance where Singh was unresponsive to a specific question put to him. III. CONCLUSION The BIA’s adverse credibility determination was not supported by substantial evidence. Therefore, we grant Singh’s petition and reverse the BIA’s denial of his claims for asylum and withholding of removal. The BIA affirmed solely on the basis of its finding of adverse credibility. It failed to consider whether Singh would have “established eligibility for asylum and withholding of removal had he testified credibly.” Therefore, we remand to the BIA for further proceedings to consider the merits of Singh’s application for asylum and for withholding of removal consistent with this opinion. Petition for review GRANTED and REMANDED. . The following factual background is based on Singh’s application for asylum, testimony adduced at the asylum hearing, and corroborating evidence. . Although the BIA stated that it would not \"disturb” the IJ's adverse credibility finding based on her \"entire explanation,\" the BIA did not adopt the IJ's opinion, instead conducting an 'independent review of the record and providing its own explanation of the evidence that supported its adverse credibility finding. See Alaelua v. INS, 45 F.3d 1379, 1381-82 (9th Cir.1995) (finding that the BIA adopted the IJ’s opinion where, in a one-paragraph opinion, the BIA did not analyze the relevant factors but instead commented that \"the [IJ] adequately and correctly addressed the issues raised on appeal\" and \"affirmed based upon and for the reasons set forth in [the IJ's] decision”). Therefore, our review is limited to the BIA’s opinion. . This section has since been moved to INA § 241(b)(3), 8 U.S.C. § 1231(b)(3). . The BIA's characterization of the doctor’s seven-line letter as “strongly indicative of [Singh's] lack of credibility” is simply not tenable. The doctor’s letter reads as follows: \"It is certified that" }, { "docid": "22610326", "title": "", "text": "the BIA did not address Attia’s claims because they were not properly before it. According to the government, the petitioners’ notice of appeal to the BIA addressed only Rizk’s claims. Because Attia’s claims were not exhausted, the government argues, we should dismiss her appeal for lack of jurisdiction. The record does not support this assertion. The petitioners’ notice of appeal and supporting brief to the BIA lists the Alien Identification Number for each of the family members, repeatedly refers to the family collectively as “respondents” or “appellants,” and refers specifically to the “female” appellant or respondent where appropriate. Accordingly, we conclude that Attia adequately appealed the IJ’s decision and that we have jurisdiction over her petition. Because the BIA’s decision did not resolve Attia’s appeal (and, consequently, did not resolve the cases of Joseph and John, who are eligible for derivative relief through Attia), we must grant her petition and remand her case (along with her children’s) to the BIA for decision. “[W]here the BIA has not made a finding on an essential asylum issue, the proper course of action for a court of appeals is to remand the issue to the BIA for decision.” Chen v. Ashcroft, 362 F.3d 611, 621 (9th Cir.2004) (citing INS v. Ventura, 537 U.S. 12, 17, 123 S.Ct. 353, 154 L.Ed.2d 272 (2002)). We therefore do not address Attia’s additional challenges to the IJ’s decision. Ill Rizk claims that the IJ’s adverse credibility determination was not supported by substantial evidence. Where, as here, the BIA expressly adopts the IJ’s decision, we review the IJ’s findings as if they were the BIA’s. Aguilar-Ramos v. Holder, 594 F.3d 701, 704 (9th Cir.2010). Because credibility determinations are findings of fact by the IJ, they “are conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B) (2000). “To reverse [such a] finding we must find that the evidence not only supports [a contrary] conclusion, but compels it.” INS v. Elias-Zacarias, 502 U.S. 478, 481 n. 1, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992). We must uphold the IJ’s adverse credibility determination" }, { "docid": "22630780", "title": "", "text": "decision in this case post-dated Briones, wherein we similarly encouraged the BIA to deal with credibility issues when it first has the opportunity to do so. See Briones, 175 F.3d at 729-30 & n. 1. The message bears repeating. The piecemeal direction in which this case is headed is not a meritorious goal, nor an ideal method of resolution. For purposes of expediency, we take this opportunity to suggest to the BIA some language from this circuit’s precedent relevant to the question of Petitioner’s credibility as it was analyzed and discussed by the IJ. Even under the substantial evidence standard, an adverse credibility finding must be based on “specific cogent reason[s],” which are substantial and “bear a legitimate nexus to the finding.” Lopez-Reyes, 79 F.3d at 911 (quoting Nasseri v. Moschorak, 34 F.3d 723, 726 (9th Cir.1994)) (internal quotation marks omitted). In determining what “valid grounds” exist for an adverse credibility finding, “an applicant’s testimony is not per se lacking in credibility simply because it includes details that are not set forth in the asylum application.” Id. Similarly, “personal conjecture about what guerillas likely would and would not do ... is not a substitute for substantial evidence.” Id. at 912. Finally, corroboration is not necessarily required to establish an applicant’s credibility. Id. (specifically discussing corroborating affidavits). CONCLUSION We conclude that any reasonable factfin-der would have determined that Petitioner is eligible for asylum, if Petitioner’s testimony is credible. Petitioner’s testimony demonstrates both a suffering of past persecution and a well-founded fear of future persecution based upon imputed political opinion. However, despite its independent review of the record from the IJ hearing, the BIA failed to meaningfully discuss the IJ’s adverse credibility determination. We thus do not order the BIA to grant relief, but instead remand to the BIA to consider the question of Petitioner’s credibility. Petition granted and remanded for further proceedings consistent with this opinion. . IIRIRA repeals 8 U.S.C. § 1105a and replaces it with a new judicial review provision codified at 8 U.S.C. § 1252. See IIRIRA § 306(c)(1), Pub.L. No. 104-208, 100 Stat. 3009 (Sept. 30, 1996)," } ]

[ { "docid": "15254885", "title": "", "text": "business of publicly displaying baseball games. As such, the Court finds that the Cubs’ conduct falls into the Major League Baseball exemption from antitrust laws and therefore Counts I and II must be dismissed Even if the baseball exemption did not apply, the Court would still dismiss Counts I and II because there is no plausible relevant market. The Rooftops must ■show the existence of a plausible relevant market to prove attempted monopolization. See Nat'l Hockey League Players’ Ass’n v. Plymouth Whalers Hockey Club, 325 F.3d 712, 719-20 (6th Cir.2003); Tanaka v. Univ. of S. Cal., 252 F.3d 1059, 1063 (9th Cir.2001). The Rooftops argue that two possiblé relevant markets exist: a “Live Cubs Game Product” market and a “Live Rooftop Games Product” market. (Compl.lHf 116,157.) Neither is a plausible relevant market however because each depends upon the Cubs’ presentation of live professional baseball, and a single brand product like producing live-action Cubs games cannot be a relevant market. Compare, PSKS, Inc. v. Leegin Creative Leather Prods., Inc., 615 F.3d 412, 418 (5th Cir.2010) (a women’s accessories brand not a single brand product); House of Brides, Inc. v. Alfred Angelo, Inc., No. 11 C 07834, 2014 WL 64657 at *6 (N.D.Ill. Jan. 8, 2014) (“highly differentiated and unique” wedding products not a single brand product). Moreover, this situation does not align with the limited circumstances where a single brand product or service can constitute a relevant market. First, consumers were not “locked in”' to purchasing a future product or service because of the Cubs’ conduct, and second/ viewing a live Cubs game is not so unique that there is no substitute. See Eastman Kodak Co. v. Image Technical Servs., Inc., 504 U.S. 451, 461-79, 112 S.Ct. 2072, 119 L.Ed.2d 265 (1992) (relevant market existed where consumers were effectively “locked in” to the Kodak brand because service and parts for Kodak equipment were not compatible with other manufacturers’ service); Right Field Rooftops, LLC, 87 F.Supp.3d at 887 (“arguments of consumer preferences ... fall short of rending it plausible that there exist no interchangeable substitutes for live Cubs games.”). Therefore, the Court" } ]

[ { "docid": "11700468", "title": "", "text": "Law, Antitrust Law Developments 521 (4th ed.1997) (quoting H.J., Inc. v. Int’l Tel. & Tel. Corp., 867 F.2d 1531, 1540 (8th Cir.1989)). Thus, the general standard articulated in du Pont, in conjunction with the specific factors announced in Brown Shoe, provides the applicable standard for defining the relevant product market. 1. Products of a single manufacturer or brand In general, a manufacturer’s own products do not themselves comprise a relevant product market. 1 ABA Section of Antitrust Law, supra, 527-28. As the Supreme Court stated in du Pont: [Wjhere there are market alternatives that buyers may readily use for their purposes, illegal monopoly does not exist merely because the product said to be monopolized differs from others. If it were not so, only physically identical products would be a part of the market. 351 U.S. at 394, 76 S.Ct. 994. Similarly, we have said that “a company does not violate the Sherman Act by virtue of the natural monopoly it holds over its own product.” TV Communications Network, Inc. v. Turner Network Television, Inc., 964 F.2d 1022, 1025 (10th Cir.1992) (holding that TNT is not relevant product market for purposes of Sherman Act). Even where brand loyalty is intense, courts reject the argument that a single branded product constitutes a relevant market. Disenos Artisticos E. Industriales, S.A. v. Work, 714 F.Supp. 46, 47-48 (E.D.N.Y. 1989) (defining relevant product market as market for high quality decorative gift-ware, despite “intense brand loyalty” among some customers for certain brand of porcelain figurine); see also Grappone, Inc. v. Subaru of New England, Inc., 858 F.2d 792, 797 (1st Cir.1988) (Although “virtually every seller of a branded product has some customers who especially prefer its product,” that fact alone does not show market power (emphasis in original).). Nonetheless, products of a single manufacturer may in rare circumstances constitute a relevant product market. Eastman Kodak Co. v. Image Technical Servs., Inc., 504 U.S. 451, 481-82, 112 S.Ct. 2072, 119 L.Ed.2d 265 (1992). In Eastman Kodak Co. v. Image Technical Services, Inc., the Supreme Court held that the relevant product market must be defined in terms of" }, { "docid": "22586543", "title": "", "text": "cert. denied, - U.S. -, 117 S.Ct. 960, 136 L.Ed.2d 846 (1997); Ajir v. Exxon Corp., No. C 93-20830, 1995 WL 429234, *3 (N.D.Ca.) (“Just because Exxon’s direct serve dealers may contractually purchase gasoline from only one source — Exxon—does not mean that the relevant market is Exxon gasoline”; the correct relevant market is all gasoline). See also Seagood Trading Corp. v. Jerrico, Inc., 924 F.2d 1555, 1570 n. 39 (11th Cir.1991) (declining to reach issue but rioting the district court rejected plaintiffs’ claim that proposed market for sales of supplies to Long John Silver’s fast food stores was a relevant market for antitrust purposes). Plaintiffs argue that the Supreme Court’s decision defining relevant markets in Eastman Kodak Co. v. Image Technical Services, Inc., 504 U.S. 451, 112 S.Ct. 2072, 119 L.Ed.2d 265 (1992) requires a different outcome. We disagree. In Kodak, the Supreme Court observed that a market is defined with reference to reasonable interchangeability. Kodak, 504 U.S. at 482, 112 S.Ct. at 2090. The Court held that the market for repair parts and services for Kodak photo-copiers was a valid relevant market because repair parts and services for Kodak machines are not interchangeable with the service and parts used to fix other copiers. Id. Plaintiffs suggest that Kodak supports its proposed relevant market because it indicates that in some circumstances, a single brand of a product or service may constitute a relevant market. This is correct where the commodity is unique, and therefore not interchangeable with other products. But here, it is uneon-tested that contractual restraints aside, the sauce, dough, and other products and ingredients approved for use by Domino’s franchisees are interchangeable with other items available on the market. Plaintiffs contend that they face information and switching costs that “lock them in” to their position as Domino’s franchisees, making it economically impracticable for them to abandon the Domino’s system and enter a different line of business. They argue that under Kodak, the fact that they are “locked in” supports their claim that an “aftermarket” for Domino’s-approved supplies is a relevant market for antitrust purposes. We believe plaintiffs" }, { "docid": "4827296", "title": "", "text": "suspect” because they lead to higher prices or reduced output; that dual distribution systems should be presumptively illegal; and that without a presumption of illegality, the rule of reason amounts to a rule of per se legality for RPM. B. The relevant market for Brighton goods and market power. To state an antitrust claim for anticompetitive RPM, PSKS’s complaint must plausibly define the relevant product and geographic markets. See Apani, 300 F.3d at 627. A proposed product market must include all “commodities reasonably interchangeable by consumers for the same purposes.” United States v. E.I. du Pont de Nemours & Co., 351 U.S. 377, 395, 76 S.Ct. 994, 100 L.Ed. 1264 (1956). Where the plaintiff fails to define its proposed relevant market with reference to the rule of reasonable interchangeability and cross-elasticity of demand, or alleges a proposed relevant market that clearly does not encompass all inter changeable substitute products even when all factual inferences are granted in plaintiffs favor, the relevant market is legally insufficient, and a motion to dismiss may be granted. Apani, 300 F.3d at 628. PSKS alleged two alternative product markets, neither of which encompasses interchangeable substitute products or recognizes the cross-elasticity of demand for Brighton goods. The district court properly rejected the “retail market for Brighton’s women’s accessories” and the “wholesale sale of brand-name women’s accessories to independent retailers.” The court also correctly rejected the claim that Brighton products constitute their own market. In rare circumstances, a single brand of a product or service can constitute a relevant market for antitrust purposes. Eastman Kodak v. Image Tech. Servs., 504 U.S. 451, 481-82, 112 S.Ct. 2072, 119 L.Ed.2d 265 (1992). But that possibility is limited to situations in which consumers are “locked in” to a specific brand by the nature of the product. There is no structural barrier to the interchangeability of Brighton products with goods produced by competing manufacturers, nor has PSKS alleged any such structural barriers. Nor does Brighton constitute its own submarket. Although a recognized submarket doctrine exists, such markets must exist within broader economic markets. And the requirements for pleading a submarket are" }, { "docid": "19545664", "title": "", "text": "relevant market for antitrust purposes.\" PSKS, Inc. v. Leegin Creative Leather Prod., Inc. , 615 F.3d 412, 418 (5th Cir. 2010). Eastman Kodak is the principal authority describing such circumstances. In that case, independent-service operators of photocopiers and micrographic equipment sued Kodak for, among other things, monopolizing the sale of services for Kodak machines. 504 U.S. at 459, 112 S.Ct. 2072. After doing well selling equipment, Kodak moved to control the repairs of its equipment. It specifically implemented a new policy of selling replacement parts only to owners that used Kodak's services or repair their own machines. As part of the same policy, manufacturers agreed not to sell replacement parts to anyone but Kodak, and Kodak \"pressured\" owners and distributors not to sell replacement parts to independent service providers. Id. Kodak first argued that it could not exercise power in the markets for its parts and services because there was bona fide competition in the upstream market for equipment, and therefore customers could check supracompetitive pricing for parts and services by turning to Kodak's manufacturer-competitors. The Supreme Court disagreed. It held that in a \"market for complex durable goods,\" like the one at issue, customers may face \"significant information and switching costs\" in attempting to change equipment manufacturers, and \"[l]ifecycle pricing\" is difficult for consumers to calculate when initially purchasing equipment. Id. at 473, 112 S.Ct. 2072. The Supreme Court, moreover, found it important that Kodak had \"locked in\" many customers before changing its policy to dominate the parts and services aftermarkets. Id. at 475, 112 S.Ct. 2072. The Supreme Court thus held that a factual question existed as to \"whether information costs and switching costs foil the simple assumption that the equipment and service markets act as pure complements to one another.\" Id. at 477, 112 S.Ct. 2072. Kodak later argued \"that, as a matter of law, a single brand of a product or service can never be a relevant market under the Sherman Act.\" Id. at 481, 112 S.Ct. 2072. The Supreme Court again disagreed. It reasoned that the relevant antitrust market was \"determined by the choices available" }, { "docid": "11700469", "title": "", "text": "F.2d 1022, 1025 (10th Cir.1992) (holding that TNT is not relevant product market for purposes of Sherman Act). Even where brand loyalty is intense, courts reject the argument that a single branded product constitutes a relevant market. Disenos Artisticos E. Industriales, S.A. v. Work, 714 F.Supp. 46, 47-48 (E.D.N.Y. 1989) (defining relevant product market as market for high quality decorative gift-ware, despite “intense brand loyalty” among some customers for certain brand of porcelain figurine); see also Grappone, Inc. v. Subaru of New England, Inc., 858 F.2d 792, 797 (1st Cir.1988) (Although “virtually every seller of a branded product has some customers who especially prefer its product,” that fact alone does not show market power (emphasis in original).). Nonetheless, products of a single manufacturer may in rare circumstances constitute a relevant product market. Eastman Kodak Co. v. Image Technical Servs., Inc., 504 U.S. 451, 481-82, 112 S.Ct. 2072, 119 L.Ed.2d 265 (1992). In Eastman Kodak Co. v. Image Technical Services, Inc., the Supreme Court held that the relevant product market must be defined in terms of the choices of products and services available to Kodak equipment owners. Id. Because Kodak equipment owners were locked into Kodak parts and services, Kodak parts and services were not interchangeable with the parts and services of other manufacturers. See id. at 482, 112 S.Ct. 2072. Accordingly, only those companies that serviced Kodak machines comprised the relevant product market. Id. The Supreme Court has acknowledged in dicta that the soft drink industry is a prototypical example of an industry in which products are so interchangeable that control over one brand cannot be an illegal monopoly. The Court said that “this power that ... soft-drink manufacturers have over their trademarked products is not the power that makes an illegal monopoly.” du Pont, 351 U.S. at 393, 76 S.Ct. 994. “[T]here are certain differences in the formulae for soft drinks but one can hardly say that each one is an illegal monopoly.” Id.; see also Coca-Cola Bottling Co. of Shreveport, Inc. v. Coca-Cola Co., 696 F.Supp. 97, 131 (D.Del.1988) (“There can be no serious dispute that Coca-Cola products" }, { "docid": "20702199", "title": "", "text": "limited in a particular way”) (internal citations and quotation marks omitted)). To establish a relevant market, the Rooftops must define both a geographic market and a product market. See Republic Tobacco Co. v. N. Atl. Trading Co., 381 F.3d 717, 738 (7th Cir.2004). The Rooftops allege, alternatively, that two relevant markets exist: a “Live Cubs Game Product” market and a “Live Rooftop Games Product” market. (Compl.¶¶ 116, 157.) Geographically, the Rooftops assert that the market for the products is either: (1) Wrigley Field and the sixteen total rooftop businesses lining Sheffield and Waveland Avenues or (2) only the sixteen rooftop businesses. (Id. at ¶¶ 121, 161.) At its most basic, however, both markets revolve around and rely upon the Cubs’ production of Cubs professional baseball games. (Id. at ¶ 111.) For this reason, the Cubs challenge the Rooftops’ proposed relevant markets. The use or uses to which a product is put controls the boundaries of the relevant market. United States v. E.I. DuPont deNemours & Co., 351 U.S. 377, 396, 76 S.Ct. 994, 100 L.Ed. 1264 (1956). “The outer boundaries of a product market are determined by the reasonable interchangeability of use or the cross-elasticity of demand between the product itself and substitutes for it.” Reifert v. S. Cent. Wis. MLS Corp., 450 F.3d 312, 320 (7th Cir.2012). The Rooftops contend that live Cubs games form the market. The Rooftops specifically allege that the relevant product market influenced by the Cubs’ conduct is “the market for watching Live Cubs Games, which consists of consumers who pay money to watch live-action Cubs Games, in person, as the games take place on the field at Wrigley Field.” (Compl.¶ 116.) In essence, the Rooftops’ antitrust claims rest on the Court concluding that a market exists for live-action Cubs games alone. The Rooftops’ proposed relevant market cannot stand because it is comprises a single brand product. See, e.g., PSKS, Inc. v. Leegin Creative Leather Prods., Inc., 615 F.3d 412, 418 (5th Cir.2010) (district court correctly rejected that a specific brand constituted its own market); House of Brides, Inc. v. Alfred Angelo, Inc., No. 11" }, { "docid": "19545663", "title": "", "text": "Sherman Act for monopolization. To plead such a claim, a plaintiff must allege (1) that the defendant \"possessed monopoly power\" in an antitrust market, and (2) that the defendant \"willfully acquired or maintained that power by means other than the quality of its product, its business acumen, or historical accident.\" Mercatus Grp., LLC v. Lake Forest Hosp. , 641 F.3d 834, 854 (7th Cir. 2011) ; see also Comcast Corp. v. Behrend , 569 U.S. 27, 43, 133 S.Ct. 1426, 185 L.Ed.2d 515 (2013). The Complaint, however, does not plead that either CDK or Reynolds are monopolists in the DMS or data-integration markets. It claims instead that Defendants have monopolized the purported data-integration aftermarkets for their respective DMSs. Defendants, in response, argue that the Complaint fails to plead the narrow sort of aftermarket claim the Supreme Court blessed in Eastman Kodak and that it fails to allege the acquisition of power through unlawful conduct. The Court disagrees. 1. The Single-Brand Aftermarket \"In rare circumstances, a single brand of a product or service can constitute a relevant market for antitrust purposes.\" PSKS, Inc. v. Leegin Creative Leather Prod., Inc. , 615 F.3d 412, 418 (5th Cir. 2010). Eastman Kodak is the principal authority describing such circumstances. In that case, independent-service operators of photocopiers and micrographic equipment sued Kodak for, among other things, monopolizing the sale of services for Kodak machines. 504 U.S. at 459, 112 S.Ct. 2072. After doing well selling equipment, Kodak moved to control the repairs of its equipment. It specifically implemented a new policy of selling replacement parts only to owners that used Kodak's services or repair their own machines. As part of the same policy, manufacturers agreed not to sell replacement parts to anyone but Kodak, and Kodak \"pressured\" owners and distributors not to sell replacement parts to independent service providers. Id. Kodak first argued that it could not exercise power in the markets for its parts and services because there was bona fide competition in the upstream market for equipment, and therefore customers could check supracompetitive pricing for parts and services by turning to Kodak's manufacturer-competitors." }, { "docid": "4827297", "title": "", "text": "F.3d at 628. PSKS alleged two alternative product markets, neither of which encompasses interchangeable substitute products or recognizes the cross-elasticity of demand for Brighton goods. The district court properly rejected the “retail market for Brighton’s women’s accessories” and the “wholesale sale of brand-name women’s accessories to independent retailers.” The court also correctly rejected the claim that Brighton products constitute their own market. In rare circumstances, a single brand of a product or service can constitute a relevant market for antitrust purposes. Eastman Kodak v. Image Tech. Servs., 504 U.S. 451, 481-82, 112 S.Ct. 2072, 119 L.Ed.2d 265 (1992). But that possibility is limited to situations in which consumers are “locked in” to a specific brand by the nature of the product. There is no structural barrier to the interchangeability of Brighton products with goods produced by competing manufacturers, nor has PSKS alleged any such structural barriers. Nor does Brighton constitute its own submarket. Although a recognized submarket doctrine exists, such markets must exist within broader economic markets. And the requirements for pleading a submarket are no different from those for pleading a relevant broader market. The second proposed market definition is similarly legally insufficient. “Wholesale sale” does not adequately define the relevant market, because the relevant market definition must focus on the product rather than the distribution level. PSKS has likewise failed sufficiently to allege why Brighton goods are not interchangeable with non-brand name products. Nor is there any relevance to “independent retailers” to the market definition, because PSKS has not alleged facts that could establish why independent retailers do not compete with larger chain stores in the distribution of Brighton products. Lastly, “women’s accessories” is too broad and vague a definition to constitute a market. Indeed, it is impossible to imagine that Leegin could have power over such a market. As the Leegin court points out, 551 U.S. at 898, 127 S.Ct. 2705, even anticompetitive uses of RPM do not create concern unless the relevant entity has market power. A market-power screen is thus compatible with Leegin and our precedent and that of our sister circuits. To allege a" }, { "docid": "20702201", "title": "", "text": "C 07834, 2014 WL 64657, at *6 (N.D.Ill. Jan. 8, 2014) (“House of Brides I ”) (“law usually requires that a relevant product market for antitrust purposes comprise more than a single brand”); Int’l Equip., 2013 WL 4599903, at *4 (antitrust claims are meritless “[w]hen a complaint limits the relevant market to a ‘single brand, franchise, institution, or comparable entity that competes with potential substitutes’ ”) (quoting Todd, 275 F.3d at 200). Here, because the Cubs necessarily compete with other Major League Baseball teams, sporting events, and other live entertainment for revenue, the relevant market cannot be restricted solely to live Cubs games. See Hack v. President & Fellows of Yale Coll., 237 F.3d 81, 86-87 (2d Cir.2000) (Yale University was not its own product market because it competes with other schools), abrogated on other grounds by Swierkiewicz v. Sorema N.A., 534 U.S. 506, 122 S.Ct. 992, 152 L.Ed.2d 1 (2002); Tanaka, 252 F.3d at 1063-64 (UCLA women’s soccer program did not constitute its own market because other college programs compete to recruit student-athletes); Queen City Pizza, Inc. v. Domino’s Pizza, Inc., 124 F.3d 430, 438 (3d Cir.1997) (market could not be limited to products approved by Domino’s pizza for Domino’s stores). Although, “[i]n rare circumstances, a single brand of a product or service can constitute a relevant market for antitrust purposes,” PSKS, 615 F.3d at 418, those circumstances are not present here. For a single brand product market to exist, the brand product must either “lock in” consumers to a specific brand by nature of the product or be so unique that it is likely that there is no substitute. See Eastman Kodak Co. v. Image Technical Servs., Inc., 504 U.S. 451, 461-79, 482, 112 S.Ct. 2072, 119 L.Ed.2d 265 (1992) (relevant market existed where customers were effectively “locked in” to the market for Kodak brand services because service and parts for Kodak equipment were not interchangeable with other manufacturers’ service); In re Apple & AT & TM Antitrust Litig., 596 F.Supp.2d 1288, 1310 (N.D.Cal.2008) (relevant market where consumers would be “locked into” using a certain wireless telephone provider" }, { "docid": "20702200", "title": "", "text": "1264 (1956). “The outer boundaries of a product market are determined by the reasonable interchangeability of use or the cross-elasticity of demand between the product itself and substitutes for it.” Reifert v. S. Cent. Wis. MLS Corp., 450 F.3d 312, 320 (7th Cir.2012). The Rooftops contend that live Cubs games form the market. The Rooftops specifically allege that the relevant product market influenced by the Cubs’ conduct is “the market for watching Live Cubs Games, which consists of consumers who pay money to watch live-action Cubs Games, in person, as the games take place on the field at Wrigley Field.” (Compl.¶ 116.) In essence, the Rooftops’ antitrust claims rest on the Court concluding that a market exists for live-action Cubs games alone. The Rooftops’ proposed relevant market cannot stand because it is comprises a single brand product. See, e.g., PSKS, Inc. v. Leegin Creative Leather Prods., Inc., 615 F.3d 412, 418 (5th Cir.2010) (district court correctly rejected that a specific brand constituted its own market); House of Brides, Inc. v. Alfred Angelo, Inc., No. 11 C 07834, 2014 WL 64657, at *6 (N.D.Ill. Jan. 8, 2014) (“House of Brides I ”) (“law usually requires that a relevant product market for antitrust purposes comprise more than a single brand”); Int’l Equip., 2013 WL 4599903, at *4 (antitrust claims are meritless “[w]hen a complaint limits the relevant market to a ‘single brand, franchise, institution, or comparable entity that competes with potential substitutes’ ”) (quoting Todd, 275 F.3d at 200). Here, because the Cubs necessarily compete with other Major League Baseball teams, sporting events, and other live entertainment for revenue, the relevant market cannot be restricted solely to live Cubs games. See Hack v. President & Fellows of Yale Coll., 237 F.3d 81, 86-87 (2d Cir.2000) (Yale University was not its own product market because it competes with other schools), abrogated on other grounds by Swierkiewicz v. Sorema N.A., 534 U.S. 506, 122 S.Ct. 992, 152 L.Ed.2d 1 (2002); Tanaka, 252 F.3d at 1063-64 (UCLA women’s soccer program did not constitute its own market because other college programs compete to recruit student-athletes); Queen" }, { "docid": "1914448", "title": "", "text": "to FDA regulations, once a physician prescribes Cardizem CD, a consumer patient may only purchase Cardizem CD or its FDA-approved AB-rated bioequivalent. Plaintiffs further allege that prior to June 23, 1999, when Andrx’s Cartia XT was introduced into the market, HMRI’s Car-dizem CD comprised a 100% share of the U.S. market for Cardizem CD and its generic bioequivalents. See State Law Plfs. Complt. ¶¶ 133-34. Thus, the physician’s prescribing practices and the FDA approval barriers define the relevant market. Accordingly, no heart patient who entered a U.S. pharmacy with a physician’s prescription for Cardizem CD could obtain any drug other than Cardizem CD prior to June 23, 1999 when Andrx began shipping Cartia XT. See Rhone-Poulenc Rorer Pharmaceuticals, Inc. v. Marion Merrell Dow, Inc., 93 F.3d 511, 513 (8th Cir.1996) (where the Court observed that “[pharmacists may freely substitute among AB drugs, but only a prescribing physician may' substitute one BC drug for another”). Contrary to Andrx’s arguments, a single brand of a product can constitute a relevant market for antitrust purposes. See Eastman Kodak Co. v. Image Technical Services, Inc., 504 U.S. 451, 481-82, 112 S.Ct. 2072, 119 L.Ed.2d 265 (1992) (where the Supreme Court rejected an argument similar to Defendants and ob served that “[t]he relevant market for antitrust purposes is determined by the choices available to [the consumer]”). Construing the allegations in Plaintiffs’ complaints in the light most favorable to them and construing all the allegations as true, this Court concludes that State Law, Sherman Act Class, and Independent CVS and Rite Aid Sherman Act Plaintiffs have adequately pled a relevant market with regard to their antitrust claims. The determination whether there are additional products that are “reasonably” interchangeable with Cardizem CD involves questions of fact not properly addressed in a Rule 12(b)(6) motion to dismiss. “The proper market definition in this ease can be determined only after a factual inquiry into the ‘commercial realities’ faced by consumers.” Eastman Kodak, 504 U.S.' at 482, 112 S.Ct. 2072. Accordingly, Defendant’s motion is DENIED. IV. Conclusion For the foregoing reasons, this Court DENIES: (1) Defendant Hoechst AG’s motion to" }, { "docid": "12077657", "title": "", "text": "2072. Those single-brand markets, however, were “derivative aftermarkets.” Id. at 455, 112 S.Ct. 2072. Kodak found that single-brand aftermarkets — markets for parts and service for Kodak equipment — arose once customers have purchased and are “locked in” to Kodak photocopiers or equipment. Here, in contrast, Psystar alleges not a single-brand aftermarket dependent on and derivative of a specific company’s primary product but instead that a single brand of primary product (Apple’s operating system) constitutes an independent market. Neither Newcal Industries nor Kodak addressed such a situation. Psys-tar has cited no decision lending support to its single-brand product market theory. “In general, a manufacturer’s own products do not themselves comprise a relevant product market.... [A] company does not violate the Sherman Act by virtue of the natural monopoly it holds over its own product.” Green Country Food Market, Inc. v. Bottling Group, 371 F.3d 1275, 1282 (10th Cir.2004). See also Lambtek Yogurt Machines v. Dreyer’s Grand Ice Cream, Inc., 1997 WL 108718 at *3 (N.D.Cal.1997) (unpublished). Single-brand markets are, at a minimum, extremely rare. “Even where brand loyalty is intense, courts reject the argument that a single branded product constitutes a relevant market.” Green Country Food Market, 371 F.3d at 1282. See also, e.g., Hack v. President and Fellows of Yale College, 237 F.3d 81, 86 (2d Cir.2000), abrogated on other grounds by Swierkiewicz v. Sorema N.A., 534 U.S. 506, 122 S.Ct. 992, 152 L.Ed.2d 1 (2002); Spahr v. Leegin Creative Leather Products, Inc., 2008 WL 3914461 at *9-10 (E.D.Tenn.2008); Little Caesar Enterprises, Inc. v. Smith, 34 F.Supp.2d 459, 477 and n. 30 (E.D.Mich.1998); Shaw v. Rolex Watch, U.S.A., Inc., 673 F.Supp. 674, 678-79 (S.D.N.Y.1987). Antitrust markets consisting of just a single brand, however, are not per se prohibited; as stated, markets are defined by the “reasonable interchangeability” of use or the cross-elasticity of demand among products. In theory, it may be possible that, in rare and unforeseen circumstances, a relevant market may consist of only one brand of a product. Psystar’s factual contentions therefore must be examined under Twom-bly’s pleading standards to determine if Psystar has pled such a" }, { "docid": "8403781", "title": "", "text": "S.Ct. 1551 -(stating that “a tying arrangement cannot exist unless two separate product markets have been linked”). To do this requires a “determination [of] precisely what the tying and tied product markets are.” Queen City Pizza, Inc. v. Domino’s Pizza, Inc., 124 F.3d 430, 443 (3d Cir.1997) (dismissing the plaintiffs tying claim because the proposed tying market was “not a relevant market for antitrust purposes”). A relevant market consists of both a product and a geographic component. Thompson v. Metro. Multi-List, Inc., 934 F.2d 1566, 1572 (11th Cir.1991). Defining a product market generally involves “describing those groups of producers which, because of the similarity of their products, have the ability — actual or potential — to take significant amounts of business away from each other.” U.S. Anchor, 7 F.3d at 995 (internal quotations omitted). While markets usually involve multiple firms producing multiple products, in exceptional circumstances a relevant product market may consist of a single brand. U.S. Anchor, 7 F.3d at 998 (“A single branded product may, in rare cases, constitute its own relevant market”). This may occur if a product is unique and has no interchangeable substitutes. A geographic market, on the other hand, is the “area of effective competition” in which competitors compete for consumers. Bailey v. Aligas, Inc., 284 F.3d 1237, 1247 (11th Cir.2002) (citing Tampa Elec. Co. v. Nashville Coal Co., 365 U.S. 320, 327-29, 81 S.Ct. 623, 5 L.Ed.2d 580 (1961)). This area is where “the product or its reasonably interchangeable substitutes are traded.” T. Harris Young & Assoc., Inc. ,v. Marquette Elec., Inc., 931 F.2d 816, 826 (1991). In defining the geographic market, courts look at various factors, including “[p]rice data and such corroborative factors as transportation costs, delivery limitations, customer convenience and preference, and the location and facilities of other producers and distributors.” Id. Overall, though, the geographic market must be one that corresponds to the commercial realities of the particular industry. Eastman Kodak, 504 U.S. at 467, 112 S.Ct. 2072.- ' In this case, the crux of Plaintiffs claim is that Defendant is leveraging the sales of Cuban cigars in order to" }, { "docid": "20702202", "title": "", "text": "City Pizza, Inc. v. Domino’s Pizza, Inc., 124 F.3d 430, 438 (3d Cir.1997) (market could not be limited to products approved by Domino’s pizza for Domino’s stores). Although, “[i]n rare circumstances, a single brand of a product or service can constitute a relevant market for antitrust purposes,” PSKS, 615 F.3d at 418, those circumstances are not present here. For a single brand product market to exist, the brand product must either “lock in” consumers to a specific brand by nature of the product or be so unique that it is likely that there is no substitute. See Eastman Kodak Co. v. Image Technical Servs., Inc., 504 U.S. 451, 461-79, 482, 112 S.Ct. 2072, 119 L.Ed.2d 265 (1992) (relevant market existed where customers were effectively “locked in” to the market for Kodak brand services because service and parts for Kodak equipment were not interchangeable with other manufacturers’ service); In re Apple & AT & TM Antitrust Litig., 596 F.Supp.2d 1288, 1310 (N.D.Cal.2008) (relevant market where consumers would be “locked into” using a certain wireless telephone provider by virtue of purchasing a specific cellular phone); see also Int’l Equip., 2013 WL 4599903, at *4 (no single brand product relevant market unless allegations make it plausible that there is no substitute). Here, there are no allegations that consumers are effectively “locked in” to purchasing a subsequent product or service because of the Cubs’ conduct. While the Court accepts that there are some die-hard Cubs fans that would never attend a White Sox game, that does not mean that Cubs games constitute their own market. The Rooftops’ contend that there are no reasonable substitutes for live Cubs games because watching the games on television “involves a limited number of cameras” and because fans who want to see a live Cubs game are “unlikely to patronize another team’s live games.” (Compl.¶¶ 119-20.) Such arguments of consumer preferences, however, “fall short of rendering it plausible that there exist no interchangeable substitutes for” live Cubs games. House of Brides I, 2014 WL 64657, at *6; see also, e.g., House of Brides, Inc. v. Alfred Angelo, Inc., No." }, { "docid": "800572", "title": "", "text": "of actually monopolizing the relevant market. Digene Corp. v. Third Wave Techs., Inc., 536 F.Supp.2d 996, 1004 (W.D. Wis. 2008) (stating on Rule 12(b)(6) motion to dismiss counterclaim that “[Without a definition of [the relevant] market there is no way to measure the [alleged monopolist’s] ability to lessen or destroy competition” (quoting Spectrum Sports, 506 U.S. at 455, 113 S.Ct. 884). (first and third alterations in original)); see also Spectrum Sports, 506 U.S. at 455, 113 S.Ct. 884 (citing Walker Process Equip., Inc. v. Food Mach. & Chem. Corp., 382 U.S. 172, 177, 86 S.Ct. 347, 15 L.Ed.2d 247 (1965)); Viamedia, 218 F.Supp.3d at 693 (analyzing effect of the defendant’s alleged conduct on markets defined, in the complaint); Agnew v. Nat’l Collegiate Athletic Ass’n, 683 F.3d 328, 335-38 (7th Cir. 2012) (holding that the plaintiff had to identify a relevant market to state a claim under § 1 of the Sherman Act because § 1 requires courts to analyze whether the defendant’s alleged conduct “could have had anticompetitive effects (thus impheating the Sherman Act)”). To establish a relevant market, a plaintiff must define both a geographic market and a product market. House of Brides, Inc. v. Alfred Angelo, Inc., No. 11 C 07834, 2014 WL 64657, at *5 (N.D. Ill. Jan. 8, 2014) (citing Republic Tobacco Co. v. N. Atl. Trading Co., 381 F.3d 717, 738 (7th Cir. 2004)). Nucap contends, among other things, that Bosch’s allegations defining the relevant product markets are not specific enough to satisfy Rule 8(a)(2)’S “short and plain statement” requirement. A product market for Sherman Act purposes “is defined by the reasonable interchangeability of the products and the cross-elasticity of demand for those products.” Ploss, 197 F.Supp.3d at 1070 (quoting In re Dairy Farmers of Am., Inc. Cheese Antitrust Litig., 767 F.Supp.2d 880, 901 (N.D. Ill. 2011)) (restating this proposition as “the products in a market must have unique attributes that allow them to be substituted for one another, but make them difficult to replace.. with substitute products from outside the market” (quotation omitted).. In its antitrust counterclaims, Bosch identifies two product markets: a market" }, { "docid": "20702203", "title": "", "text": "by virtue of purchasing a specific cellular phone); see also Int’l Equip., 2013 WL 4599903, at *4 (no single brand product relevant market unless allegations make it plausible that there is no substitute). Here, there are no allegations that consumers are effectively “locked in” to purchasing a subsequent product or service because of the Cubs’ conduct. While the Court accepts that there are some die-hard Cubs fans that would never attend a White Sox game, that does not mean that Cubs games constitute their own market. The Rooftops’ contend that there are no reasonable substitutes for live Cubs games because watching the games on television “involves a limited number of cameras” and because fans who want to see a live Cubs game are “unlikely to patronize another team’s live games.” (Compl.¶¶ 119-20.) Such arguments of consumer preferences, however, “fall short of rendering it plausible that there exist no interchangeable substitutes for” live Cubs games. House of Brides I, 2014 WL 64657, at *6; see also, e.g., House of Brides, Inc. v. Alfred Angelo, Inc., No. 11 C 07834, 2014 WL 6845862, at *4 (N.D.Ill. Dec. 4, 2014) {“House of Brides II”) (“[n]o matter how distinctive the work of a wedding dress designer may be,” contention that there were no adequate substitutes was implausible); Global Discount Travel Servs., LLC v. Trans World Airlines, Inc., 960 F.Supp. 701, 705 (S.D.N.Y.1997) (Sotomayor, J.) (no single brand market where “[o]nly customer preference for a product, not compulsion by the product itself as in Kodak, leads a customer” to purchase the product). The Rooftops’ arguments in favor of a live Cubs game market are belied not only by the fact that there are numerous live entertainment options available to consumers in Chicago that must be considered, see Elliott v. United Ctr., 126 F.3d 1003, 1005 (7th Cir.1997) (in antitrust suit claiming that United Center monopolized food sales within the United Center, proper relevant market was “at least Chicago”); see also, e.g., Institutional Foods Packing, Inc. v. Creative Prods., Inc., No. 89 C 4499, 1992 WL 111133, at *2 (N.D.Ill. May 12, 1992) (“court is not" }, { "docid": "148021", "title": "", "text": "to treat heartburn and related conditions is immaterial to the present inquiry. See, e.g., United States v. Archer-Daniels-Midland Co., 866 F.2d 242, 248 & n. 1 (8th Cir.1988) (concluding that, although high fructose corn syrup and sugar serve near-identical functional purposes, the absence of strong cross-price elasticity between the two products suggested that they were not in fact within the same market). The Supreme Court has held that a properly constituted market may indeed be comprised of a single product, Eastman Kodak Co. v. Image Technical Servs., Inc., 504 U.S. 451, 481-82, 112 S.Ct. 2072, 119 L.Ed.2d 265 (1992), and lower courts across the country have on numerous occasions ruled that both a brand-name drug and its generic analogs can fall within the bounds of a relevant market, see, e.g., In re Terazosin Hydrochloride Antitrust Litig., 352 F.Supp.2d 1279, 1319 n. 40 (S.D.Fla.2005) (deeming a relevant market to be composed of branded and generic terazosin hydrochloride); In re Cardizem CD Antitrust Litig. (“Cardizem”), 105 F.Supp.2d 618, 680-81 (E.D.Mich.2000) (accepting plaintiffs’ contention that branded and generic versions of a heart medication with the chemical compound diltiazem hydrochloride constitute a single market), aff'd, 332 F.3d 896 (6th Cir.2003). Although it may be beyond this Court’s competence to confirm the accuracy of the Direct Purchasers’ characterization of the reasonable interchangeability of brand Nexium with other drugs, such a factually intensive determination is better left for resolution by a jury, see Eastman Kodak, 504 U.S. at 482, 112 S.Ct. 2072 (observing that “[t]he proper market definition ... can be determined only after a factual inquiry into the ‘commercial realities’ faced by consumers,” id. (quoting United States v. Grinnell Corp., 384 U.S. 563, 572, 86 S.Ct. 1698, 16 L.Ed.2d 778 (1966))); Todd v. Exxon Corp., 275 F.3d 191, 199-200 (2d Cir.2001) (explaining that “[b]ecause market definition is a deeply fact-intensive inquiry, courts hesitate to grant motions to dismiss for failure to plead a relevant product market”), so, by definition, the Defendants’ motions to dismiss cannot be sustained on this ground. Taking the relevant market to be comprised of brand and generic Nexium alone for the" }, { "docid": "20296660", "title": "", "text": "force customers to purchase and use those inferior accessories. Compl. ¶ 55. Further, Plaintiff alleges that Defendant’s disabling of Plaintiffs DMMCs and the anticipated imposition of new technological barriers to block Plaintiffs accessories “reduces choices available to customers, bars access to high quality accessories for lower prices than those offered by Microsoft, and has no legitimate technological or business justification.” Compl. ¶ 52. Defendant argues that Plaintiffs first claim should be dismissed on the ground that Plaintiff has failed to plead a legally cognizable Aftermarket because Plaintiff cannot pursue antitrust claims based on a single-brand market. In general, single brand markets do not constitute a relevant market. See, e.g., Green Country Food Mkt., Inc. v. Bottling Group, 371 F.3d 1275, 1282 (10th Cir.2004). However, there is an exception where aftermarket restrictions are not disclosed or agreed to by the customers at the time of purchase of a product or service from the primary market. See Eastman Kodak Co. v. Image Tech. Servs., 504 U.S. 451, 112 S.Ct. 2072, 119 L.Ed.2d 265 (1992). In Kodak, Eastman Kodak manufactured and sold photocopiers and micro-graphic equipment. Kodak also sold service and replacement parts for the equipment. The plaintiffs, a group of independent service organizations that serviced Kodak’s equipment, challenged Kodak’s policies that made it more difficult for them to compete with Kodak in servicing equipment, including Kodak’s practice of limiting the availability of Kodak parts. The plaintiffs alleged that Kodak unlawfully tied the sale of service for Kodak machines to the sale of Kodak-compatible parts, a market in which Kodak had a monopoly. Kodak parts were not compatible with competitors’ machines and vice versa. The Court held that in certain circumstances, a single brand can constitute a separate market: “because service and parts for Kodak equipment are not interchangeable with other manufacturers’ service and parts, the relevant market from the Kodak equipment owner’s perspective is composed of only those companies that service Kodak machines.” Eastman Kodak, 504 U.S. at 482, 112 S.Ct. 2072. The Court found that the single-brand aftermarket for parts and service for Kodak equipment arose once customers had already purchased" }, { "docid": "800573", "title": "", "text": "establish a relevant market, a plaintiff must define both a geographic market and a product market. House of Brides, Inc. v. Alfred Angelo, Inc., No. 11 C 07834, 2014 WL 64657, at *5 (N.D. Ill. Jan. 8, 2014) (citing Republic Tobacco Co. v. N. Atl. Trading Co., 381 F.3d 717, 738 (7th Cir. 2004)). Nucap contends, among other things, that Bosch’s allegations defining the relevant product markets are not specific enough to satisfy Rule 8(a)(2)’S “short and plain statement” requirement. A product market for Sherman Act purposes “is defined by the reasonable interchangeability of the products and the cross-elasticity of demand for those products.” Ploss, 197 F.Supp.3d at 1070 (quoting In re Dairy Farmers of Am., Inc. Cheese Antitrust Litig., 767 F.Supp.2d 880, 901 (N.D. Ill. 2011)) (restating this proposition as “the products in a market must have unique attributes that allow them to be substituted for one another, but make them difficult to replace.. with substitute products from outside the market” (quotation omitted).. In its antitrust counterclaims, Bosch identifies two product markets: a market for automotive shims and a market for automotive backing plates. (Countercl. ¶¶ 93-95.) The gist of its antitrust counterclaims is that by refusing to sell Bosch shims in November 2014 unless Bosch also sourced backing plates from Nucap, Nucap attempted improperly to harm its competitors in the market for backing plates using its ninety percent market power in the shim market, (See id. ¶¶ 97-103.) Bosch specifically pleads that shims and plates are separate products and that.it has assembled aftermarket brake pads from different suppliers of shims and backing plates. (Id. ¶ 93.) Bosch further narrows its market definitions to shims and backing plates “sold to automotive brake pad manufacturers for installation in aftermarket automotive brake pads,” but it offers no plausible justification for narrowing the market in this way. (Id. ¶¶ 94, 95.) Original equipment manufacturers (“OEM’s”), Bosch asserts, “design and develop” (but not manufacture) finished brake pads consisting of shims, backing plates, and the other components of aftermarket brake pads. (Countercl. ¶¶ 7, 9, 14.) Perhaps market constraints make suppliers of shims and" }, { "docid": "20702204", "title": "", "text": "11 C 07834, 2014 WL 6845862, at *4 (N.D.Ill. Dec. 4, 2014) {“House of Brides II”) (“[n]o matter how distinctive the work of a wedding dress designer may be,” contention that there were no adequate substitutes was implausible); Global Discount Travel Servs., LLC v. Trans World Airlines, Inc., 960 F.Supp. 701, 705 (S.D.N.Y.1997) (Sotomayor, J.) (no single brand market where “[o]nly customer preference for a product, not compulsion by the product itself as in Kodak, leads a customer” to purchase the product). The Rooftops’ arguments in favor of a live Cubs game market are belied not only by the fact that there are numerous live entertainment options available to consumers in Chicago that must be considered, see Elliott v. United Ctr., 126 F.3d 1003, 1005 (7th Cir.1997) (in antitrust suit claiming that United Center monopolized food sales within the United Center, proper relevant market was “at least Chicago”); see also, e.g., Institutional Foods Packing, Inc. v. Creative Prods., Inc., No. 89 C 4499, 1992 WL 111133, at *2 (N.D.Ill. May 12, 1992) (“court is not aware of any cases in which the relevant market is determined by the label placed on the product”), but also by Lakeview Baseball Club’s market analysis filed by the Rooftops. See Dkt. No. 60 at 34-35 (“An improvement in quality or a reduction in the price of a competing event (e.g.concerts) can negatively affect demand for sports. Live radio, TV, and online broadcasting of sporting events are also direct substitutes for going to a venue to see a game.”) The argument that the Rooftops could establish a live Cubs game product as a submarket of all 'live sporting events in Chicago with the aid of discovery and experts, Dkt. No. 41 at 20, effectively concedes that they have failed to offer a plausible relevant market. The purpose of the antitrust laws is to protect competition, not competitors. See Leegin Creative Leather Prods., Inc. v. PSKS, Inc., 551 U.S. 877, 906, 127 S.Ct. 2705, 168 L.Ed.2d 623 (2007). Because the Rooftops cannot define a relevant product market in a single brand product, it is impossible to" } ]

[ { "docid": "5673436", "title": "", "text": "agencies make an independent environmental assessment of the proposed action. The Court below correctly recognized this in distinguishing this case from Mahelona v. Hawaiian Electric Company, 418 F.Supp. 1328 (D.Hawaii 1976) wherein the Corps of Engineers erroneously considered the advisements of the EPA as de terminative and consequently failed to independently determine whether or not the proposed action would have a significant impact on the human environment. For these reasons we hold the Corps’ decision was not unreasonable. A MAJOR FEDERAL ACTION? Appellants contend the court below erred in not finding the grant of the pipeline construction permit was a “major Federal action significantly affecting the quality of the human environment”, under 42 U.S.C. § 4332(2)(C), and therefore requiring preparation of an EIS. In furtherance of this contention they argue that granting almost any Federal permit to this massive multimillion dollar manufacturing plant should trigger the obligations of NEPA. The Court below held that the provisions of NEPA must be read in context of other language in the Federal Water Pollution Control Act (FWPCA), 33 U.S.C. § 1251 et seq., which places control of water pollution caused by discharges of effluents in the hands of the states and the EPA. United States v. SCRAP, supra. The court went on to hold, citing Sierra Club v. Hodel, 544 F.2d 1036 (9th Cir. 1979) and Port of Astoria v. Hodel, 8 ERC 1156, aff’d 595 F.2d 467 (9th Cir. 1979), that the issuance of the Corps’ permit was not a sufficient nexus between the Corps and construction of the Du Pont plant to make the Corps a partner in such construction and thereby “federalize” the construction of the Du Pont plant. In other words, the granting of the pipeline permit by the Corps was not a “major Federal action” within the meaning of NEPA. In addition to the Court’s holding, it should also be noted that FWPCA, 33 U.S.C. § 1371(c)(1), ordinarily prohibits the issuance of a NPDES permit from being deemed a major Federal action significantly affecting the quality of the human environment within the meaning of NEPA. Furthermore, § (c)(2)" } ]

[ { "docid": "23080203", "title": "", "text": "Stewart & Krier, Environmental Law and Policy 754 (2d ed. 1978). Hart v. Denver Urban Renewal Authority, 551 F.2d 1178 (10th Cir. 1977), is not inconsistent with our approach in this case. There it was held that the loan and grant contract’s provision that HUD approve all acquisitions and dispositions of property by the urban renewal authority established a continuing federal involvement sufficient to make the approval by HUD of the sale of a National Register building “further federal action.” Our approach to the “continuing involvement” of HUD is guided by HUD’s own regulations on CDBG funding rather than by a “continuing involvement” gloss on NEPA. Whether this gloss exists in this circuit need not detain us. HUD’s own regulations, in this instance, embody its substance in any event. Neither, moreover, requires that we adopt the per se rule of WATCH. It, therefore, becomes necessary to determine whether the district court erred in holding that the Boise project, at the time of the funding conversion, had “no significant impact” on the human environment under NEPA. The standard of review we must apply to an agency’s failure to prepare an EIS is whether the agency’s action was reasonable. See Warm Springs Dam Task Force v. Gribble, 621 F.2d 1017, 1024 (9th Cir. 1980) (updating prior review); Portela v. Pierce, 650 F.2d 210 (9th Cir. 1981); City and County of San Francisco v. United States, 615 F.2d 498 (9th Cir. 1980); City of Davis v. Coleman, 521 F.2d 661 (9th Cir. 1975). But cf. Shea, The Judicial Standard for Review of Environmental Impact Statement Threshold Decisions, 9 Boston College Envt’l Affairs L. Rev. 63 (1980) (Administrative Procedure Act requires “arbitrary and capricious” standard of review). b. Reasonableness of BRA’s Finding. We commence our review by recognizing, as we must, that NEPA requires federal agencies to preserve important historic and cultural aspects of our nation’s heritage. 42 U.S.C. 4331(b)(4) (1976). See Aluli v. Brown, 437 F.Supp. 602, 607 (D.Haw.1977), reversed in part, 602 F.2d 876 (9th Cir. 1979) (archaeological sites). Furthermore, judgments of historical significance made by the Advisory Council on Historic Preservation," }, { "docid": "23680843", "title": "", "text": "their actions); Kleppe v. Sierra Club, 427 U.S. 390, 410 n. 21, 96 S.Ct. 2718, 2730 n. 21, 49 L.Ed.2d 576 (1976) (role for reviewing court is to ensure that agency takes a “hard look” at environmental consequences, but not to substitute its own judgment for that of the agency). Goos argues that the this circuit has applied this “substantial inquiry” standard in a line of cases, and that they apply here. While we agree that NEPA requires that federal agencies consider carefully the environmental consequences of their actions, we disagree that these cases supply the standard for a reviewing court in considering agency compliance with NEPA. In Minnesota Pub. Interest Research Group v. Butz, 498 F.2d 1314 (8th Cir.1974), we considered whether the Forest Service erred in determining that its involvement in timber sales in the Boundary Waters Canoe Area in Minnesota did not require it to prepare an environmental impact statement (EIS). We held that “review of an agency’s determination not to prepare an impact statement should be measured by its reasonableness in the circumstances, not as to whether it was arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” Id. at 1320. More precisely, we considered whether the Forest Service’s involvement in timber sales constituted major federal action within the meaning of NEPA. At issue, then, was a threshold determination of whether NEPA applied to a particular action — the same issue presented in this case. In Winnebago Tribe v. Ray, 621 F.2d 269 (8th Cir.), cert. denied, 449 U.S. 836, 101 S.Ct. 110, 66 L.Ed.2d 43 (1980), we considered the propriety of a decision by the Army Corps of Engineers not to prepare an EIS on the environmental impact of a power line running across the Missouri River. The Corps did prepare an environmental assessment (EA) on the fiver crossing pursuant to its issuance of a necessary permit, but declined to prepare an EIS. We reviewed that determination for reasonableness under the circumstances, according to the standard established in Minnesota Pub. Interest. Similarly, in Olmsted Citizens for a Better Community v. United" }, { "docid": "12076359", "title": "", "text": "effects will in fact occur, but if the plaintiff raises substantial questions whether a project may have a significant effect, an EIS must be prepared. Foundation For North American Wild Sheep v. United States Department of Agriculture, 681 F.2d 1172, 1178 (9th Cir.1982). We review an agency determination not to file an EIS by considering whether the responsible agency has “reasonably concluded” that the project will have no significant adverse environmental consequences. City and County of San Fran cisco v. United States, 615 F.2d at 500. We will defer to an agency’s judgment, and not substitute our own, only when the agency’s judgment is “fully informed and well-considered.” Jones v. Gordon, 792 F.2d 821, 828 (9th Cir.1986). A brief consideration of the scope and purpose of NEPA will illuminate our discussion of whether FERC reasonably concluded that no substantial questions were raised as to whether the Sayles Flat project might cause a significant environmental effect. This circuit has interpreted the congressional mandate, to apply NEPA “to the fullest extent possible,” 42 U.S.C. § 4332, as a direction to “make as liberal an interpretation as we can to accommodate the application of NEPA.” Jones v. Gordon, 792 F.2d at 826. One of NEPA’s goals is to facilitate “widespread discussion and consideration of the environmental risks and remedies associated with the pending project,” thereby augmenting an informed decisionmaking process. Warm Springs Dam Task Force v. Gribble, 621 F.2d 1017, 1021 (9th Cir.1980) (per curiam). NEPA requires that this evaluation take place before a project is approved. 40 C.F.R. §§ 1500.1(a), 1501.1, 1502.5 (1987); see Andrus v. Sierra Club, 442 U.S. 347, 351, 99 S.Ct. 2335, 2337, 60 L.Ed.2d 943 (1979). As part of this process, environmental factors must be considered on an equal basis with other, more traditional, concerns. Foundation for North American Wild Sheep v. United States Department of Agriculture, 681 F.2d at 1177. With this approach to decisionmaking, agencies will take the necessary “hard look” at environmental consequences before approving any major federal action. Kleppe v. Sierra Club, 427 U.S. 390, 410, n. 21, 96 S.Ct. 2718, 2730, n. 21," }, { "docid": "23080200", "title": "", "text": "the new factors. 24 C.F.R. § 58.19(b)(1). Preparation of the clearance finding is described in section 58.-15 which is captioned “Steps to commence environmental review process.” Section 58.16 governs completion of the environmental review process where a clearance finding under section 58.15 has determined that the request for release of funds for the project (and, necessarily, any related action whose review is required ancillary to the release of funds) is not an action which may significantly affect the environment. Under these circumstances, no EIS is required. 24 C.F.R. § 58.16. Here, BRA found precisely that the Boise project had no significant impact. Our task is to determine whether this finding under section 58.16 in the BRA’s 1979 environmental assessment was reasonable. Portela v. Pierce, 650 F.2d 210, 213 (9th Cir. 1981); City and County of San Francisco v. United States, 615 F.2d 498, 500 (9th Cir. 1980); City of Davis v. Coleman, 521 F.2d 661, 673 (9th Cir. 1975). a. Effect of Destruction of National Register Building. The Coalition takes the position that the contemplated destruction or significant alteration of buildings listed on the National Register, without more, imprints BRA’s finding of no significant impact on the environment with the mark of unreasonableness. It cites WATCH (Waterbury Action, etc.) v. Harris, 603 F.2d 310 (2d Cir. 1979), cert. denied, 444 U.S. 995, 100 S.Ct. 530, 62 L.Ed.2d 426 (1979), in support of its position. WATCH can be read in this fashion. Id. at 318, 326. We decline, however, to follow WATCH when read in this fashion. We regard the adoption of such a rule as inconsistent with at least the spirit of San Francisco Tomorrow v. Romney, 472 F.2d 1021 (9th Cir. 1973). There we refused to regard amendatory contracts, which increased funding for the sole purpose of providing for the rising cost of land acquisi tions and relocation of displaced residents, as “further major federal action” within the meaning of NEPA. Our refusal indicates that within this circuit federal action subsequent to the initiation of a project must be evaluated comprehensively and in terms of its relationship to the" }, { "docid": "2039841", "title": "", "text": "concerning the applicability of NEPA is reviewed for reasonableness under the circumstances. (Emphasis added). Goos v. ICC, 911 F.2d 1283, 1291-92 (8th Cir.1990) (citing Minnesota Pub. Interest Research Group v. Butz, 498 F.2d 1314 (8th Cir.1974), and Winnebago Tribe v. Ray, 621 F.2d 269 (8th Cir.) cert. denied, 449 U.S. 836, 101 S.Ct. 110, 66 L.Ed.2d 43 (1980)). We apply that standard here. IV Under NEPA, an agency must include an environmental impact statement (EIS) in “every recommendation or report on proposals for legislation and other major Federal actions significantly affecting the quality of the human environment.” 42 U.S.C. § 4332(2)(C). Only proposals for a “major” federal action therefore require review by an agency under NEPA. “Requiring an EIS for anything less would needlessly hinder the Government’s ability to carry on its myriad programs and responsibilities in which it assists, informs, monitors, and reacts to activities of individuals, organizations, and states, but in which the Government plays an insubstantial role.” NAACP v. Medical Center, Inc., 584 F.2d 619, 634 (3d Cir.1978). NEPA thus “focuses on activities of the federal government and does not require federal review of ‘the environmental consequences of private decisions or actions, or those of state or local governments.’ ” Goos, supra, 911 F.2d at 1293 (citations omitted). Regulations of the Council on Environmental Quality (CEQ) provide that “major Federal actions” include non-federal actions “with effects that may be major and which are potentially subject to Federal control and responsibility.” 40 C.F.R. § 1508.18. “Projects include actions approved by permit or other regulatory decision as well as federal and federally assisted activities.” 40 C.F.R. § 1508.18(b)(4). This Court has explained that “a non-federal project is considered a ‘federal action’ if it cannot ‘begin or continue without prior approval by a federal agency’ [citations omitted]” and the agency possesses authority “to exercise discretion over the outcome.” Maryland Conservation Council, Inc. v. Gilchrist, 808 F.2d 1039, 1042 (4th Cir.1986), citing W. Rodgers, Environmental Law § 7.6, at 763 (1977). As stated by the Tenth Circuit, “the federal agency must possess actual power to control the non-federal activity.” Sierra Club" }, { "docid": "568782", "title": "", "text": "Warehouse Co-op, 833 F.2d 172, 174 (9th Cir.1987). IV. THE ISSUE The NEPA requires federal agencies to prepare a detailed statement on the environmental impact of “major Federal actions significantly affecting the quality of the human environment.” 42 U.S.C. § 4332(2)(C) (1982). The issue before us is whether the Corps’ understanding of the term “federal action” that it used in deciding whether to prepare such a statement was correct. The NEPA does not specify the scope of analysis that federal agencies must conduct in determining whether their actions, when combined with private actions, come within the mandate of § 4332(2)(C). The district court, as noted above, looked to Ninth Circuit precedent for guidance. We hold that the district court erred in reaching the conclusion it did. V. THE REGULATIONS A. The Corps’ Regulations The Corps follows its own regulations when determining how to comply with the NEPA. In 1980, the Corps published a version of regulations that did not specify how it should determine the scope of its NEPA analysis when issuing permits for projects combining both federal and non-federal actions. See 45 Fed.Reg. 56760 (1980). In the same year, the Fifth and Eighth Circuits decided to limit this scope to the federally controlled or regulated aspects such projects. See Winnebago Tribe v. Ray, 621 F.2d 269, 273 (8th Cir.) (NEPA did not require the Corps to consider an entire power line when issuing a permit allowing the line to cross navigable waters), cert. denied, 449 U.S. 836, 101 S.Ct. 110, 66 L.Ed.2d 43 (1980); Save the Bay, Inc. v. United States Corps of Eng’rs, 610 F.2d 322, 327 (5th Cir.) (NEPA did not require the Corps to consider a chemical plant when issuing a permit allowing construction of a wastewater pipeline from the plant), cert. denied, 449 U.S. 900, 101 S.Ct. 269, 66 L.Ed.2d 130 (1980). In 1984, the Corps proposed an amendment to its NEPA regulations that would have codified Winnebago and Save the Bay. The Clean Air Act (CAA), however, requires the Administrator of the Environmental Protection Agency (EPA) to review proposed NEPA compliance regulations. See 42" }, { "docid": "23090805", "title": "", "text": "Service moved for summary judgment. The District Court granted the motion, holding, inter alia, that the Service had reasonably concluded that no EIS was required. This appeal ensued. II. ANALYSIS Before proceeding directly to the merits of the present controversy, we note the exceptionally broad scope of NEPA. See, e.g., Calvert Cliffs’ Coordinating Committee, Inc. v. Atomic Energy Comm’n, 449 F.2d 1109, 1122 (D.C.Cir.1971). By its terms, NEPA mandates the preparation of an EIS for all “major federal actions significantly affecting the quality of the human environment .... ” NEPA § 102(2)(c) [42 U.S.C. § 4332(2)(c) ]. See also Kleppe v. Sierra Club, 427 U.S. 390, 399, 96 S.Ct. 2718, 2725, 49 L.Ed.2d 576 (1976). “The statutory phrase ‘actions significantly affecting the quality of the environment’ is intentionally broad, reflecting the Act’s attempt to promote an across-the-board adjustment in federal agency decision making so as to make the quality of the environment a concern of every federal agency.” Scientists’ Institute for Public Information, Inc. v. Atomic Energy Comm’n, 481 F.2d 1079, 1088 (D.C.Cir.1973). NEPA represents a firm Congressional mandate that environmental factors be considered on an equal basis with other, more traditional, concerns. Calvert Cliffs’ Coordinating Committee, Inc. v. Atomic Energy Comm’n, 449 F.2d 1109, 1122 (D.C.Cir.1971). Our first step in resolving the issues presented by this appeal is a determination of the appropriate standard for reviewing the Service’s decision that no EIS was required prior to the issuance of a permit to reopen Road 2N06. It is firmly established in this Circuit that an agency’s determination that a particular project does not require the preparation of an EIS is to be upheld unless unreasonable. Portela v. Pierce, 650 F.2d 210, 213 (9th Cir. 1981); City & County of San Francisco v. United States, 615 F.2d 498, 500 (9th Cir. 1980); City of Davis v. Coleman, 521 F.2d 661, 673 (9th Cir. 1975). Our review of the administrative record in the present case leads us ineluctably to the conclusion that the Service’s determination that no EIS was required was, in fact, unreasonable. Accordingly, we reverse. As noted above, NEPA requires" }, { "docid": "17200947", "title": "", "text": "630.-112(c) (1991). If a project is to be federally funded, however, it must first be listed on a program approved by the FHWA. In addition to being part of an FHWA approved federal-aid highway system and included in an approved Section 105 Program, a project must also meet the requirements of environmental regulations to qualify as an FHWA project. Under the FHWA regulation, a project cannot be eligible for agency funding unless: it is determined to be a categorical exclusion (need not be subject to environmental analysis); is found to have no significant impact as a result of an environmental assessment; or is the subject of an FHWA approved final EIS and record of decision. 23 C.F.R. § 771.113. Furthermore, for a highway to qualify for federal-aid funding, it must also have its plans, specifications, and estimates approved by the FHWA, and receive prior concurrence from the FHWA before the award of the construction contracts. None of these requirements has been met by either MoPac South or any segment of the Austin Outer Loop. Accordingly, neither project is presently eligible for federal funding, and neither is a federal-aid highway project subject to NEPA as a result of asserted FHWA involvement. . Another characterization of this control factor is whether federal involvement in a nonfederal project is sufficient to \"federalize” the project for purposes of NEPA. See, e.g., Maryland Conservation Council, Inc. v. Gilchrist, 808 F.2d 1039 (4th Cir.1986); Winnebago Tribe of Nebraska v. Ray, 621 F.2d 269 (8th Cir.), cert. denied, 449 U.S. 836, 101 S.Ct. 110, 66 L.Ed.2d 43 (1980). The appellees contend that both Segment 3 and MoPac construction should not commence prior to a NEPA analysis because the number of federal controls on both projects is adequate to \"federalize” them. . A less pervasive view is that a highway project constitutes a \"major Federal action” upon receipt of location approval from the FHWA. See, e.g., City of Boston v. Volpe, 464 F.2d 254 (1st Cir.1972); Lathan v. Volpe, 455 F.2d 1111 (9th Cir.1971); Sierra Club v. Volpe, 351 F.Supp. 1002 (N.D.Cal.1972). . A \" ‘[plroposa! exists at" }, { "docid": "23080202", "title": "", "text": "environmental effects of the entire project. Only then can it be determined whether the recent federal action amounted to “further major federal action.” Presently agencies prepare some 1,000 EISs and some 30,000 environmental assessments annually. U.S. Council on Environmental Quality, Environmental Quality— 1976, pp. 123, 132. The environmental assessment is an established part of NEPA environmental review. See, e.g., Hanly v. Kleindienst, 471 F.2d 823 (2d Cir. 1972), cert. denied, 412 U.S. 908, 93 S.Ct. 2290, 36 L.Ed.2d 974 (1973), and later appeal, 484 F.2d 448 (2d Cir. 1973), cert. denied, 416 U.S. 936, 94 S.Ct. 1934, 40 L.Ed.2d 286 (1974); Portela v. Pierce, 650 F.2d 210, 213 (9th Cir. 1981) (“environmental clearance”); City and County of San Francisco v. United States, 615 F.2d 498, 500 (9th Cir. 1980); City of Davis v. Coleman, 521 F.2d 661, 674 (9th Cir. 1975) (“negative declaration”). As a screening device, the environmental assessment allows agencies with limited resources to focus on truly important federal actions. We decline to remove this screen by imposing a per se rule. See Stewart & Krier, Environmental Law and Policy 754 (2d ed. 1978). Hart v. Denver Urban Renewal Authority, 551 F.2d 1178 (10th Cir. 1977), is not inconsistent with our approach in this case. There it was held that the loan and grant contract’s provision that HUD approve all acquisitions and dispositions of property by the urban renewal authority established a continuing federal involvement sufficient to make the approval by HUD of the sale of a National Register building “further federal action.” Our approach to the “continuing involvement” of HUD is guided by HUD’s own regulations on CDBG funding rather than by a “continuing involvement” gloss on NEPA. Whether this gloss exists in this circuit need not detain us. HUD’s own regulations, in this instance, embody its substance in any event. Neither, moreover, requires that we adopt the per se rule of WATCH. It, therefore, becomes necessary to determine whether the district court erred in holding that the Boise project, at the time of the funding conversion, had “no significant impact” on the human environment under NEPA." }, { "docid": "23090806", "title": "", "text": "a firm Congressional mandate that environmental factors be considered on an equal basis with other, more traditional, concerns. Calvert Cliffs’ Coordinating Committee, Inc. v. Atomic Energy Comm’n, 449 F.2d 1109, 1122 (D.C.Cir.1971). Our first step in resolving the issues presented by this appeal is a determination of the appropriate standard for reviewing the Service’s decision that no EIS was required prior to the issuance of a permit to reopen Road 2N06. It is firmly established in this Circuit that an agency’s determination that a particular project does not require the preparation of an EIS is to be upheld unless unreasonable. Portela v. Pierce, 650 F.2d 210, 213 (9th Cir. 1981); City & County of San Francisco v. United States, 615 F.2d 498, 500 (9th Cir. 1980); City of Davis v. Coleman, 521 F.2d 661, 673 (9th Cir. 1975). Our review of the administrative record in the present case leads us ineluctably to the conclusion that the Service’s determination that no EIS was required was, in fact, unreasonable. Accordingly, we reverse. As noted above, NEPA requires the preparation of an EIS for all major federal actions significantly affecting the quality of the human environment. There is no dispute that the issuance of a permit to reopen and use Road 2N06 constitutes a major federal action within the meaning of NEPA. Accordingly, the proper resolution of this appeal turns solely upon the reasonableness of the Service’s conclusion that issuance of the permit was not an action significantly affecting the quality of the human environment. The standard for determining whether the implementation of a proposal would significantly affect the quality of the human environment is whether “the plaintiff has alleged facts which, if true, show that the proposed project may significantly degrade some human environmental factor.” Columbia Basin Land Protection Ass’n v. Schlesinger, 643 F.2d 585 at 597 (9th Cir.) (emphasis in original). See also City & County of San Francisco v. United States, 615 F.2d at 500; City of Davis v. Coleman, 521 F.2d at 673; Save Our Ten Acres v. Kreger, 472 F.2d 463, 467 (5th Cir. 1973) . A determination" }, { "docid": "23080194", "title": "", "text": "laches bars none of the Coalition’s claims. III. NEPA A. Funding Conversion as a “Major Federal Action” Under NEPA NEPA requires Federal agencies to make detailed reports on “major Federal actions significantly affecting the quality of the human environment.” 42 U.S.C. § 4332(2)(C). We have held this standard met whenever substantial questions are raised as to whether a project may significantly degrade some human environmental factor. If an agency determines not to file an EIS, the reviewing court must consider whether the agency has reasonably concluded that the project will have no significant adverse environmental consequences. City and County of San Francisco v. United States, 615 F.2d 498, 500 (9th Cir. 1980); City of Davis v. Coleman, 521 F.2d 661, 673 (9th Cir. 1975); see Portela v. Pierce, 650 F.2d 210, 213 (9th Cir. 1981). The district court here found that the financial settlement that the BRA signed with HUD was not a major federal action. 1. Funding Conversion as Equivalent to Authorizing Construction of a Parking Garage The Coalition contends otherwise. It argues that since block grant funds will be used to build a 3000-car parking facility, for which purpose the urban renewal funds could not have been used, the conversion has caused all the environmental effects that ordinarily would be associated with construction of the parking garage. Thus, the conversion has, as would have had the construction of the garage, a significant environmental impact. This overstates the matter. While the urban renewal funds could not have been used for parking construction, a parking facility was nevertheless part of the original plan. Under that plan the BRA committed itself to raise funds for the parking facility to satisfy the state matching requirement. This had not been accomplished by 1978. The funding conversion simply removed a limit on the use of the federal money, but did not alter the planned scope of the project. A funding change does not resemble changing an industrial park to a neighborhood development, San Francisco Tomorrow v. Romney, 472 F.2d 1021, 1025-26 (9th Cir. 1973). Instead, like a grant of additional funds to cover increased" }, { "docid": "22254923", "title": "", "text": "actions concerning the NEPA provisions at issue in this case under a reasonableness standard. See Foundation for North American Wild Sheep v. United States Department of Agriculture, 681 F.2d 1172, 1177 (9th Cir.1982); California v. Block, 690 F.2d 753, 767 (9th Cir.1982). B. Issuance of the Permit did not require preparation of an Environmental Impact Statement in addition to the EIR/EA. NEPA requires federal agencies to prepare an Environmental Impact Statement for all “major Federal actions significantly affecting the quality of the human environment.” 42 U.S.C. § 4332(2)(C) (1982). An Environmental Impact Statement must be prepared when substantial questions are raised on whether a project may cause significant degradation of the environment. City and County of San Francisco, 615 F.2d at 500 (quoting City of Davis v. Coleman, 521 F.2d 661, 673 (9th Cir.1975)). All parties agree that the project at issue involves major federal action. The question is whether the Service properly determined that the project would not significantly degrade the environment. An agency’s decision not to prepare an Environmental Impact Statement should be upheld if reasonable. Foundation for North American Wild Sheep, 681 F.2d at 1177. City and County of San Francisco, 615 F.2d at 500. A court should not substitute its judgment for that of an agency if the agency’s decision was “fully informed and well-considered.” Vermont Yankee Nuclear Power Corp. v. National Resources Defense Council, Inc., 435 U.S. 519, 558, 98 S.Ct. 1197, 1219, 55 L.Ed.2d 460 (1978). Our review of the administrative record leads us to conclude that the Service’s determination that the project would not significantly affect the quality of the human environment and that, therefore, no Environmental Impact Statement was required, was reasonable. Appellant relies primarily on its methodological criticisms of the Biological Study in arguing that the Service’s failure to prepare an Environmental Impact Statement was unreasonable. Essentially, Appellant argues that because the data base upon which the Service relied was faulty, its EIR/EA does not satisfy NEPA’s requirement that information sufficient to enable the Service to make a rational decision must be disclosed in the EIR/EA. We conclude that appellant’s contention" }, { "docid": "12076358", "title": "", "text": "cultural resources, and aquatic and terrestrial resources, as well as cumulative impacts. Additionally, LaF-lamme’s petition argues that the FPA required FERC to prepare a comprehensive plan for the development of the American River. B. The National Environmental Protection Act (NEPA) LaFlamme contends that construction of the Sayles Flat project is “a major federal action significantly affecting the quality of the human environment,” 42 U.S.C. § 4332(2)(C), and thereby necessitates the preparation of an EIS before the project can be licensed. According to LaFlamme, FERC’s decision to license this project without first preparing an EIS violates NEPA. In this circuit, “an EIS must be prepared if ‘substantial questions are raised as to whether a project ... may cause significant degradation of some human environmental factor.’ ” City and County of San Francisco v. United States, 615 F.2d 498, 500 (9th Cir.1980) (emphasis in original) (quoting City of Davis v. Coleman, 521 F.2d 661, 673 (9th Cir.1975) (quoting Save Our Ten Acres v. Kreger, 472 F.2d 463, 467 (5th Cir.1973)). The plaintiff need not show that significant effects will in fact occur, but if the plaintiff raises substantial questions whether a project may have a significant effect, an EIS must be prepared. Foundation For North American Wild Sheep v. United States Department of Agriculture, 681 F.2d 1172, 1178 (9th Cir.1982). We review an agency determination not to file an EIS by considering whether the responsible agency has “reasonably concluded” that the project will have no significant adverse environmental consequences. City and County of San Fran cisco v. United States, 615 F.2d at 500. We will defer to an agency’s judgment, and not substitute our own, only when the agency’s judgment is “fully informed and well-considered.” Jones v. Gordon, 792 F.2d 821, 828 (9th Cir.1986). A brief consideration of the scope and purpose of NEPA will illuminate our discussion of whether FERC reasonably concluded that no substantial questions were raised as to whether the Sayles Flat project might cause a significant environmental effect. This circuit has interpreted the congressional mandate, to apply NEPA “to the fullest extent possible,” 42 U.S.C. § 4332, as" }, { "docid": "23080201", "title": "", "text": "destruction or significant alteration of buildings listed on the National Register, without more, imprints BRA’s finding of no significant impact on the environment with the mark of unreasonableness. It cites WATCH (Waterbury Action, etc.) v. Harris, 603 F.2d 310 (2d Cir. 1979), cert. denied, 444 U.S. 995, 100 S.Ct. 530, 62 L.Ed.2d 426 (1979), in support of its position. WATCH can be read in this fashion. Id. at 318, 326. We decline, however, to follow WATCH when read in this fashion. We regard the adoption of such a rule as inconsistent with at least the spirit of San Francisco Tomorrow v. Romney, 472 F.2d 1021 (9th Cir. 1973). There we refused to regard amendatory contracts, which increased funding for the sole purpose of providing for the rising cost of land acquisi tions and relocation of displaced residents, as “further major federal action” within the meaning of NEPA. Our refusal indicates that within this circuit federal action subsequent to the initiation of a project must be evaluated comprehensively and in terms of its relationship to the environmental effects of the entire project. Only then can it be determined whether the recent federal action amounted to “further major federal action.” Presently agencies prepare some 1,000 EISs and some 30,000 environmental assessments annually. U.S. Council on Environmental Quality, Environmental Quality— 1976, pp. 123, 132. The environmental assessment is an established part of NEPA environmental review. See, e.g., Hanly v. Kleindienst, 471 F.2d 823 (2d Cir. 1972), cert. denied, 412 U.S. 908, 93 S.Ct. 2290, 36 L.Ed.2d 974 (1973), and later appeal, 484 F.2d 448 (2d Cir. 1973), cert. denied, 416 U.S. 936, 94 S.Ct. 1934, 40 L.Ed.2d 286 (1974); Portela v. Pierce, 650 F.2d 210, 213 (9th Cir. 1981) (“environmental clearance”); City and County of San Francisco v. United States, 615 F.2d 498, 500 (9th Cir. 1980); City of Davis v. Coleman, 521 F.2d 661, 674 (9th Cir. 1975) (“negative declaration”). As a screening device, the environmental assessment allows agencies with limited resources to focus on truly important federal actions. We decline to remove this screen by imposing a per se rule. See" }, { "docid": "21558032", "title": "", "text": "Citizens for a Better Community v. United States, 793 F.2d 201, 204 (8th Cir.1986). The Corps presumed in this case that issuance of a Section 404 permit was a major federal action. 678 F.Supp. at 799. But it determined from its original evaluation and EA that granting the Section 404 permit for the originally proposed River-port project would not have a significant effect on the quality of the human environment. And, on reevaluation, the Corps concluded that the addition of a domed stadium to Riverport would not alter that determination since the addition would not have an environmental impact materially different from the originally proposed commercial-industrial-retail park. Accordingly, an EIS was never prepared and the Corps decided that the addition of a stadium did not require the original permit to be revoked, suspended or modified. The Coalition takes exception to these decisions and argues that NEPA required preparation of an EIS under the facts of this case. The standard under which we review an agency’s decision that preparation of an EIS is not required by NEPA is well settled. The initial burden of proof is upon the challenging party to demonstrate that there were facts omitted from the administrative record which, if true, would show that the permitted project could have a substantial impact on the environment. Ringsred v. Duluth, supra at 1307; Olmstead Citizens for a Better Community, supra at 204; Winnebago Tribe of Nebraska v. Ray, 621 F.2d 269, 271 (8th Cir.), cert. denied, 449 U.S. 836, 101 S.Ct. 110, 66 L.Ed.2d 43 (1980); Minnesota Public Interest Research Group v. Butz, 498 F.2d 1314 (8th Cir.1974) (en banc). If such facts are established, and they are of sufficient significance to warrant shifting the burden of proof, the agency must then demonstrate that its negative determination was reasonable under the circumstances. Id. The test is one of reasonableness—not whether the agency’s determination was arbitrary, capricious, an abuse of discretion or otherwise not in accordance with law. Minnesota Public Interest Research Group, supra at 1320. NEPA is an essentially procedural act designed to insure that the responsible federal agencies make" }, { "docid": "23090807", "title": "", "text": "the preparation of an EIS for all major federal actions significantly affecting the quality of the human environment. There is no dispute that the issuance of a permit to reopen and use Road 2N06 constitutes a major federal action within the meaning of NEPA. Accordingly, the proper resolution of this appeal turns solely upon the reasonableness of the Service’s conclusion that issuance of the permit was not an action significantly affecting the quality of the human environment. The standard for determining whether the implementation of a proposal would significantly affect the quality of the human environment is whether “the plaintiff has alleged facts which, if true, show that the proposed project may significantly degrade some human environmental factor.” Columbia Basin Land Protection Ass’n v. Schlesinger, 643 F.2d 585 at 597 (9th Cir.) (emphasis in original). See also City & County of San Francisco v. United States, 615 F.2d at 500; City of Davis v. Coleman, 521 F.2d at 673; Save Our Ten Acres v. Kreger, 472 F.2d 463, 467 (5th Cir. 1973) . A determination that significant effects on the human environment will in fact occur is not essential. City of Davis, supra, 521 F.2d at 673. If substantial questions are raised whether a project may have a significant effect upon the human environment, an EIS must be prepared. City & County of San Francisco, supra, 615 F.2d at 500; Minnesota Public Interest Research Group v. Butz, 498 F.2d 1314, 1320 (8th Cir. 1974) . In accordance with its internal operating procedures, the Service prepared an EA regarding Curtis’s application for a special use permit to reopen Road 2N06. The purpose of this EA was to determine whether an EIS was required, to facilitate preparation of an EIS if necessary, and to aid the Service in complying with NEPA if no EIS was required. 40 C.F.R. § 1508.9; 7 C.F.R. § 3100.20. The EA purported to consider the impact on the Bighorn sheep resulting from the reopening of Road 2N06, considered the various alternatives set forth above, and concluded that no EIS was required. Our review of the EA, along" }, { "docid": "23680844", "title": "", "text": "the circumstances, not as to whether it was arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” Id. at 1320. More precisely, we considered whether the Forest Service’s involvement in timber sales constituted major federal action within the meaning of NEPA. At issue, then, was a threshold determination of whether NEPA applied to a particular action — the same issue presented in this case. In Winnebago Tribe v. Ray, 621 F.2d 269 (8th Cir.), cert. denied, 449 U.S. 836, 101 S.Ct. 110, 66 L.Ed.2d 43 (1980), we considered the propriety of a decision by the Army Corps of Engineers not to prepare an EIS on the environmental impact of a power line running across the Missouri River. The Corps did prepare an environmental assessment (EA) on the fiver crossing pursuant to its issuance of a necessary permit, but declined to prepare an EIS. We reviewed that determination for reasonableness under the circumstances, according to the standard established in Minnesota Pub. Interest. Similarly, in Olmsted Citizens for a Better Community v. United States, 793 F.2d 201 (8th Cir.1986), we held that an agency’s determination not to prepare an EIS “will be upheld if the agency can support the reasonableness of its decision.” Id. at 204 (citing Winnebago Tribe, 621 F.2d at 271; Minnesota Pub. Interest, 498 F.2d at 1320). And in Missouri Coalition for the Env’t v. Corps of Eng’rs, 866 F.2d 1025 (8th Cir.), cert. denied, — U.S. -, 110 S.Ct. 76, 107 L.Ed.2d 42 (1989) we held, relying on these cases, that “[t]he standard under which we review an agency’s decision that preparation of an EIS is not required by NEPA is well settled.” Id. at 1032. If the challenging party can show that the project would have a substantial impact on the environment, then an agency’s determination not to prepare an EIS is reviewed for reasonableness. Id. In Marsh v. Oregon Natural Resources Council, 490 U.S. 360, 109 S.Ct. 1851, 1860, 104 L.Ed.2d 377 (1989), however, the Supreme Court held that an agency’s decision not to prepare a supplemental EIS, or an EIS in" }, { "docid": "8768921", "title": "", "text": "Warehouse Co-op, 833 F.2d 172, 174 (9th Cir.1987). IV. THE ISSUE The NEPA requires federal agencies to prepare a detailed statement on the environmental impact of “major Federal actions significantly affecting the quality of the human environment.” 42 U.S.C. § 4332(2)(C) (1982). The issue before us is whether the Corps’ understanding of the term “federal action” that it used in deciding whether to prepare such a statement was correct. The NEPA does not specify the scope of analysis that federal agencies must conduct in determining whether their actions, when combined with private actions, come within the mandate of § 4332(2)(C). The district court, as noted above, looked to Ninth Circuit precedent for guidance. We hold that the district court erred in reaching the conclusion it did. V. THE REGULATIONS A. The Corps’ Regulations The Corps follows its own regulations when determining how to comply with the NEPA. In 1980, the Corps published a version of regulations that did not specify how it should determine the scope of its NEPA analysis when issuing permits for projects combining both federal and non-federal actions. See 45 Fed.Reg. 56760 (1980). In the same year, the Fifth and Eighth Circuits decided to limit this scope to the federally controlled or regulated aspects of such projects. See Winnebago Tribe v. Ray, 621 F.2d 269, 273 (8th Cir.) (NEPA did not require the Corps to consider an entire power line when issuing a permit allowing the line to cross navigable waters), cert. denied, 449 U.S. 836, 101 S.Ct. 110, 66 L.Ed.2d 43 (1980); Save the Bay, Inc. v. United States Corps of Eng’rs, 610 F.2d 322, 327 (5th Cir.) (NEPA did not require the Corps to consider a chemical plant when issuing a permit allowing construction of a wastewater pipeline from the plant), cert. denied, 449 U.S. 900, 101 S.Ct. 269, 66 L.Ed.2d 130 (1980). In 1984, the Corps proposed an amendment to its NEPA regulations that would have codified Winnebago and Save the Bay. The Clean Air Act (CAA), however, requires the Administrator of the Environmental Protection Agency (EPA) to review proposed NEPA compliance regulations. See" }, { "docid": "22254922", "title": "", "text": "in every recommendation or report on proposals for legislation and other major Federal actions significantly affecting the quality of the human environment, a detailed statement by the responsible official on— (i) the environmental impact of the proposed action, (ii) any adverse environmental effects which cannot be avoided should the proposal be implemented, (iii) alternatives to the proposed action, (iv) the relationship between local short-term uses of man’s environment and the maintenance and enhancement of long-term productivity, and (v) any irreversible and irretrievable commitments of resources which would be involved in the proposed action should it be implemented. Appellant argues that the Service violated NEPA in several ways: (A) in failing to prepare an Environmental Impact Statement, (B) in issuing an EIR/EA which failed to discuss all reasonable alternatives; and (C) in failing to prepare a “worst-case scenario” based on new information. Appellant’s attempt to raise an issue of material fact with regard to the Service’s compliance with the requirements of NEPA is without merit. A. Standard of Review-Administrative Decisions Under NEPA We review the Service’s actions concerning the NEPA provisions at issue in this case under a reasonableness standard. See Foundation for North American Wild Sheep v. United States Department of Agriculture, 681 F.2d 1172, 1177 (9th Cir.1982); California v. Block, 690 F.2d 753, 767 (9th Cir.1982). B. Issuance of the Permit did not require preparation of an Environmental Impact Statement in addition to the EIR/EA. NEPA requires federal agencies to prepare an Environmental Impact Statement for all “major Federal actions significantly affecting the quality of the human environment.” 42 U.S.C. § 4332(2)(C) (1982). An Environmental Impact Statement must be prepared when substantial questions are raised on whether a project may cause significant degradation of the environment. City and County of San Francisco, 615 F.2d at 500 (quoting City of Davis v. Coleman, 521 F.2d 661, 673 (9th Cir.1975)). All parties agree that the project at issue involves major federal action. The question is whether the Service properly determined that the project would not significantly degrade the environment. An agency’s decision not to prepare an Environmental Impact Statement should be" }, { "docid": "23080193", "title": "", "text": "prejudice to invoke laches. Delay may be prejudicial if substantial work has been completed before the suit was brought, but even substantial completion is sometimes insufficient to bar suit. See, e.g., City of Davis, 521 F.2d at 670 n.11 (highway interchange 50% completed). Although the amount of money expended and work completed may indicate how difficult it would be to alter the plan of the project, Coalition for Canyon Preservation, 632 F.2d at 779, increased cost from delay is alone not sufficient to establish prejudice. In enacting NEPA Congress contemplated that some delay would necessarily occur in the process of identifying potential environmental harm. Id. at 780; see Ecology Center of Louisiana, Inc. v. Coleman, 515 F.2d 860, 868-69 (5th Cir. 1975). Here, however, although four square blocks were leveled for the Boise project in 1971, no construction has taken place. The project cannot be considered close to completion. Cf. City of Rochester v. United States Postal Service, 541 F.2d 967, 977 (2d Cir. 1976) (EIS required for post office 35% completed). It follows that laches bars none of the Coalition’s claims. III. NEPA A. Funding Conversion as a “Major Federal Action” Under NEPA NEPA requires Federal agencies to make detailed reports on “major Federal actions significantly affecting the quality of the human environment.” 42 U.S.C. § 4332(2)(C). We have held this standard met whenever substantial questions are raised as to whether a project may significantly degrade some human environmental factor. If an agency determines not to file an EIS, the reviewing court must consider whether the agency has reasonably concluded that the project will have no significant adverse environmental consequences. City and County of San Francisco v. United States, 615 F.2d 498, 500 (9th Cir. 1980); City of Davis v. Coleman, 521 F.2d 661, 673 (9th Cir. 1975); see Portela v. Pierce, 650 F.2d 210, 213 (9th Cir. 1981). The district court here found that the financial settlement that the BRA signed with HUD was not a major federal action. 1. Funding Conversion as Equivalent to Authorizing Construction of a Parking Garage The Coalition contends otherwise. It argues that" } ]

[ { "docid": "23710811", "title": "", "text": "contempt proceedings. E. g., Latrobe Steel v. United States Steelworkers, 545 F.2d 1336, 1342-43 (3d Cir. 1976). The difference between criminal and civil contempt is in the intended effects of the court’s punishment. United States v. Asay, 614 F.2d 655, 659 (9th Cir. 1980); United States v. Hughey, 571 F.2d 111, 114 (2d Cir. 1978), citing Gompers v. Buck’s Stove & Range Co., 221 U.S. 418, 31 S.Ct. 492, 55 L.Ed. 797 (1911). Actions and proceedings need not be wholly civil or wholly criminal and the choice of one label does not prevent application of both forms of contempt punishment. For this reason no distinct line can be drawn between civil and criminal contempt. Each shares the other’s attributes. The same conduct may result in both civil and criminal contempt charges. United States v. United Mine Workers of America, 330 U.S. 258, 67 S.Ct. 677, 91 L.Ed. 884 (1946). Punishment for civil contempt is usually considered to be remedial. The penalty is designed to enforce compliance with a court order. In Re Timmons, 607 F.2d 120, 124 (5th Cir. 1979). For that reason civil contempt punishment is conditional and must be lifted if the contemnor obeys the order of the court. Shillitani v. United States, 384 U.S. 364, 86 S.Ct. 1531, 16 L.Ed.2d 622 (1966). The term of punishment for civil contempt cannot extend beyond the trial proceedings since at the termination of the trial the contemnor’s actions can no longer be purged. Shillitani, supra at 371, 86 S.Ct. at 1536. Criminal contempt is established when there is a clear and definite order of the court, the contemnor knows of the order, and the contemnor willfully disobeys the order. Chapman v. Pacific Tel. & Tel. Co., 613 F.2d 193, 195 (9th Cir. 1979). The penalty is punitive in nature. It serves to vindicate. the authority of the court and does not terminate upon compliance with the court’s order. The punishment is unconditional and fixed. In re Timmons, supra at 124. In this case the district court first termed the contempt civil in nature. The order did not, however, contain any" } ]

[ { "docid": "22953868", "title": "", "text": "within ninety days ... the court may, upon motion by plaintiff, consider a refund of such a portion of the fine as this court deems appropriate ... (emphasis added). The amended order also clarified that the source of the court’s contempt power was Fed.R.Civ.P. 37(b)(2)(D). This rule provides that if a party fails to obey an order to provide or permit discovery, the court may “make such orders in regard to the failure as are just, and among others ...” an order of contempt. In all other respects, the court’s amended order contained verbatim the language of the original order. III. ANALYSIS A. The Contempt Order On appeal, Falstaff contends that it has been adjudicated guilty of criminal contempt without being afforded procedural due process. Falstaff argues that the confusion surrounding the nature of the contempt proceeding resulted in prejudice because Falstaff’s counsel, believing the proceeding to be civil in nature, waived a hearing on the matter and failed to request a jury trial. 1. Determining the Nature of Contempt To distinguish civil from criminal contempt, the focus of the inquiry is often “not [upon] the fact of punishment but rather its character and purpose. Shillitani v. United States, 384 U.S. 364, 369, 86 S.Ct. 1531, 1534, 16 L.Ed.2d 622 (1966) (quoting Gompers v. Bucks Stove & Range Co., 221 U.S. 418, 441, 31 S.Ct. 492, 498, 55 L.Ed. 797 (1911)). The test, as formulated by the Shillitani Court, is “what does the court primarily seek to accomplish by imposing [the sanction]?” 384 U.S. at 370, 86 S.Ct. at 1535. The primary purpose of criminal contempt is to punish past defiance of a court’s judicial authority, thereby vindicating the court. See Shillitani, 384 U.S. at 369, 86 S.Ct. at 1534; Gompers, 221 U.S. at 441, 31 S.Ct. at 498; Accord United States v. Powers, 629 F.2d 619, 627 (9th Cir.1980). The principal beneficiaries of such an order are the courts and the public interest. Ager v. Jane C. Stormont Hospital & Training School for Nurses, 622 F.2d 496, 500 (10th Cir.1980). Civil contempt is characterized by the court’s desire to" }, { "docid": "1424798", "title": "", "text": "83, 99, 88 S.Ct. 1942, 1952, 20 L.Ed.2d 947 (1968) (quoting Baker v. Carr, 369 U.S. 186, 204, 82 S.Ct. 691, 703, 7 L.Ed.2d 663 (1962)); see Princeton University v. Schmid, 455 U.S. 100, 102, 102 S.Ct. 867, 868, 70 L.Ed.2d 855 (1982) (per cu-riam); Bayron v. Trudeau, 702 F.2d 43, 45-46 (2d Cir.1983). The district judge’s labeling of his contempt order as “civil” did not establish it conclusively to be such. Shillitani v. United States, 384 U.S. 364, 369, 86 S.Ct. 1531, 1534, 16 L.Ed.2d 622 (1966); Smith v. Sullivan, 611 F.2d 1050, 1053 (5th Cir.1980). We hold that the district judge’s contempt order was not civil — it was criminal. The distinction between civil and criminal contempt has been explained so often that, by now, the general principles are well established. If the sentence of contempt is imposed for the coercive or remedial purpose of compelling obedience to a court order and providing compensation or relief to the complaining party, the contempt is civil in nature; if the sentence is unconditionally and punitively imposed to vindicate the authority of the court and not to provide private benefits, the contempt is criminal. Nye v. United States, 313 U.S. 33, 42-43, 61 S.Ct. 810, 812-13, 85 L.Ed. 1172 (1941); In re Weiss, 703 F.2d 653, 661 (2d Cir.1983) (quoting Gompers v. Bucks Stove & Range Co., 221 U.S. 418, 441, 31 S.Ct. 492, 498, 55 L.Ed. 797 (1911)); International Business Machines Corp. v. United States, 493 F.2d 112, 114-15 (2d Cir.1973), cert. denied, 416 U.S. 995, 94 S.Ct. 2409, 40 L.Ed.2d 774 (1974); Carbon Fuel Co. v. United Mine Workers, 517 F.2d 1348, 1349-50 (4th Cir.1975); Smith v. Sullivan, supra, 611 F.2d at 1053. The $1,000 fine levied by the district court falls into the latter category. It was unconditional punishment for past conduct, having only such deterrent effect as inheres in any criminal punishment. Had the district court labeled his contempt order as criminal rather than civil, the interests of the government undoubtedly would have been represented on this appeal. The question whether the district court could have held" }, { "docid": "3940355", "title": "", "text": "unambiguous orders of the court constitute contempt of court. Gompers v. Bucks Stove & Range Co., 221 U.S. 418, 441, 31 S.Ct. 492, 498, 55 L.Ed. 797 (1911). It is fundamental that the court has the power to deal with such disobedience in ways designed either to punish or to compel compliance. “The power to punish for contempts is inherent in all courts; its existence is essential to the preservation of order in judicial proceedings, and to the enforcement of the judgments, orders and writs of the courts, .... ” [Ex parte. Robinson, 86 U.S. (19 Wall.) 505, 510, 22 L.Ed. 205 (1873)] “The exercise of this power has a twofold aspect, namely: first, the proper punishment of the guilty party for his disrespect to the court or its order, and the second, to compel his performance of some act or duty required of him by the court, which he refuses to perform.” [In re Chiles, 89 U.S. (22 Wall.) 157, 168, 22 L.Ed. 819 (1874)] Bessette v. W.B. Conkey Co., 194 U.S. 324, 327, 24 S.Ct. 665, 666, 48 L.Ed. 997 (1904). If the disobedient behavior is conduct of a continuing nature which the contemnor has the power to terminate, the court may choose to hold the contemnor in civil contempt and impose a sanction that is designed to coerce the contemnor to terminate his contumacious conduct. E.g., Shillitani v. United States, 384 U.S. 364, 368, 86 S.Ct. 1531, 1534, 16 L.Ed.2d 622 (1966). The sanction generally takes the form of a jail term or a monetary fine; but it is not intended to be punitive, and the court’s order will normally provide that the imprisonment or fine is to end as soon as the contemnor ends his contumacious behavior. See, e.g., id.; Gompers v. Bucks Stove & Range Co., supra, 221 U.S. at 441-42, 31 S.Ct. at 498; In re Irving, 600 F.2d 1027, 1037 (2d Cir.), cert. denied, 444 U.S. 866, 100 S.Ct. 137, 62 L.Ed.2d 89 (1979); In re Nevitt, 117 F. 448, 461 (8th Cir.1902) (civil contemnors “are imprisoned only until they comply with the" }, { "docid": "16080452", "title": "", "text": "Arlington Developmental Center into contracts with two developmental nurse consultants), and paragraph 8 (hiring of 136 nurses as set out in the April 10, 1995, Plan of Correction). III. APPLICABLE LAW A CIVIL CONTEMPT Federal courts have inherent powers to assure the administration of justice. See United States v. Hudson, 11 U.S. (7 Cranch) 32, 3 L.Ed. 259 (1812). The most prominent among these inherent powers is the contempt sanction, “which a judge must have and exercise in protecting the authority and dignity of the court....” Roadway Express v. Piper, 447 U.S. 752, 764, 100 S.Ct. 2455, 2463, 65 L.Ed.2d 488 (1980) (quoting Cooke v. United States, 267 U.S. 517, 539, 45 S.Ct. 390, 395-96, 69 L.Ed. 767 (1925)). “[T]he power of courts to punish for con-tempts is a necessary and integral part of the independence of the judiciary, and is absolutely essential to the performance of the duties imposed on them by law.” Gompers v. Buck’s Stove & Range Co., 221 U.S. 418, 450, 31 S.Ct. 492, 501, 55 L.Ed. 797 (1911); see also 18 U.S.C. § 401 (1988) (“A court of the United States shall have the power to punish, by fine or imprisonment, at its discretion, such contempt of its authority ... [as] [disobedience or resistance to its lawful writ, process, order, rule, decree, or command”). Civil contempt is the power of the court to impose sanctions to coerce compliance with its orders. Hicks v. Feiock, 485 U.S. 624, 632, 108 S.Ct. 1423, 1429-30, 99 L.Ed.2d 721 (1988); Shillitani v. United States, 384 U.S. 364, 370, 86 S.Ct. 1531, 1535, 16 L.Ed.2d 622 (1966); Gompers, 221 U.S. at 442, 31 S.Ct. at 498. Both imprisonment and fines, when coercive or conditional, are legitimate civil contempt sanctions. See, e.g., Shillitani, 384 U.S. at 370, 86 S.Ct. at 1535 (imprisonment); United States v. Bayshore Assoc., Inc., 934 F.2d 1391, 1400 (6th Cir.1991) (fines). B. PURGING CONTEMPT 1. What Is It and What Is Its Purpose? Once subject to contempt for failure to comply with a court order, the contem-nor must be afforded an opportunity to purge itself of the" }, { "docid": "12646930", "title": "", "text": "contemptuous conduct.” Id. at 34. In these circumstances, the district court did not abuse its discretion in trebling the damages and awarding attorney fees. 3. Finally, Schubert contends that the $2 million civil fine the court imposed, to be paid to Suessen, was improper because the fine was a penalty imposed as punishment for criminal contempt and the district court did not follow the procedures required for a criminal contempt conviction. We agree. The distinction “between civil and criminal contempt lies in ‘what ... the court primarily seek[s] to accomplish by imposing sentence’ in the proceedings.” Carbon Fuel Co. v. United Mine Workers of Am., 517 F.2d 1348, 1349 (4th Cir.1975) (quoting Shillitani v. United States, 384 U.S. 364, 370, 86 S.Ct. 1531, 1535, 16 L.Ed.2d 622 (1966)). A civil contempt sanction “is remedial, and for the benefit of the complainant” while a criminal contempt sentence “is punitive, to vindicate the authority of the court.” Gompers v. Bucks Stove & Range Co., 221 U.S. 418, 441, 31 S.Ct. 492, 498, 55 L.Ed. 797 (1911). See also Penfield Co. v. Sec. & Exch. Comm’n, 330 U.S. 585, 593, 67 S.Ct. 918, 922, 91 L.Ed. 1117 (1947); Carbon Fuel Co., 517 F.2d at 1349. “Judicial sanctions in civil contempt proceedings may, in a proper case, be employed for either or both of two purposes: to coerce the defendant into compliance with the court’s order, and to compensate the complainant for losses sustained. Where compensation is intended, a fine is imposed, payable to the complainant. Such fine must of course be based upon evidence of complainant’s actual loss.... ” United States v. United Mine Workers of Am., 330 U.S. 258, 303-04, 67 S.Ct. 677, 701-02, 91 L.Ed. 884 (1947) (citation and footnote omitted). The Fourth Circuit, the decisions of which on this issue we follow, has held that a contempt proceeding is civil if the penalty is intended “to coerce compliance with an order of the court or to compensate for losses or damages caused by noncompliance.” Windsor Power House Coal Co. v. District 6 United Mine Workers of Am., 530 F.2d 312," }, { "docid": "10178477", "title": "", "text": "in Case No. 5-81-00254 to question him pursuant to Rule 205. Martin-Trigona again refused to participate and this time insisted that the court find him to be in “civil contempt” and certify the matter to the district court. This court ordered Martin-Trigona to answer the trustee’s questions, and he again refused. He was asked if he understood the consequences of his refusal to obey the lawful orders of this court. He said he did and again insisted that his conduct was intended to result in his being found in “civil contempt”. He was accordingly found in civil contempt. II DISCUSSION Martin-Trigona, a graduate of law school, demonstrated throughout several days of proceedings and innumerable motions, applications and briefs that he was knowledgeable in the bankruptcy field. While I agree with Martin-Trigona that his failure to obey the lawful order of this court constituted civil contempt, I reject his claim that he is entitled to a certification to the district court. 1. Civil Contempt The distinction between civil and criminal contempt is often blurred. The same behavior might manifest characteristics of both. Bessette v. Conkey, 194 U.S. 324, 329, 24 S.Ct. 665, 667, 48 L.Ed.2d 997 (1903). The decisive distinction, however, is not the behavior which gave rise to the contempt but rather the character and purpose of the sanction to be imposed by the court. See Shillitani v. United States, 384 U.S. 364, 86 S.Ct. 1531, 16 L.Ed.2d 622 (1965); Gompers v. Bucks Stove and Range Co., 221 U.S. 418, 31 S.Ct. 492, 55 L.Ed. 797 (1911); In re Reed, 11 B.R. 258, 266, 7 B.C.D. 777, 781 (Bkrtcy.D.Utah 1981). When the purpose of the contempt sanction is primarily remedial and coercive as opposed to punitive, the contempt is generally classified as civil. See e.g., Shillitani, supra. In Shillitani, the Supreme Court concluded that the contemnors’ imprisonment for disobeying an order to testify related to civil contempt. The court reasoned as follows: As the distinction was phrased in Gompers v. Bucks Stove & Range Co., 221 U.S. 418, 449 [31 S.Ct. 492, 501, 55 L.Ed. 797] (1911), the act of" }, { "docid": "12646929", "title": "", "text": "requirement similarly requires the statement that the machine “is not available for sale or use in, or delivery to, the United States_” Id. at 40-41, 114. These provisions are a reasonable and permissible endeavor to prevent infringement in the United States and not a prohibited extra-territorial application of American patent law. They were well within the district court’s authority. 2. Schubert next challenges the district court’s award of treble damages and attorney fees. The district court trebled the damages “by reason of the willful and deliberate nature of the infringement,” and awarded attorney fees “by reason of the exceptional nature of the case.” Id. at 34. In the prior contempt proceeding, the district court also awarded increased damages and attorney fees. Thus, the damages here awarded were for the additional infringements upon which the finding of contempt rested — the importation of the six Spincomat machines — and the attorney fees were for attorney services rendered to Suessen in the present contempt proceeding. As we have shown, the court justifiably characterized Schubert’s actions as “flagrant contemptuous conduct.” Id. at 34. In these circumstances, the district court did not abuse its discretion in trebling the damages and awarding attorney fees. 3. Finally, Schubert contends that the $2 million civil fine the court imposed, to be paid to Suessen, was improper because the fine was a penalty imposed as punishment for criminal contempt and the district court did not follow the procedures required for a criminal contempt conviction. We agree. The distinction “between civil and criminal contempt lies in ‘what ... the court primarily seek[s] to accomplish by imposing sentence’ in the proceedings.” Carbon Fuel Co. v. United Mine Workers of Am., 517 F.2d 1348, 1349 (4th Cir.1975) (quoting Shillitani v. United States, 384 U.S. 364, 370, 86 S.Ct. 1531, 1535, 16 L.Ed.2d 622 (1966)). A civil contempt sanction “is remedial, and for the benefit of the complainant” while a criminal contempt sentence “is punitive, to vindicate the authority of the court.” Gompers v. Bucks Stove & Range Co., 221 U.S. 418, 441, 31 S.Ct. 492, 498, 55 L.Ed. 797 (1911). See" }, { "docid": "12808434", "title": "", "text": "of much of its efficacy. It is, of course, well established that a court may impose both civil and criminal sanctions in connection with the same contumacious behavior. See, e.g., Yates v. United States, 355 U.S. 66, 74, 78 S.Ct. 128, 133, 2 L.Ed.2d 95 (1957); United States v. United Mine Workers, 330 U.S. 258, 299, 67 S.Ct. 677, 698, 91 L.Ed. 884 (1947). When the conduct is of a continuing nature and the contemnor has the power to terminate it, the court may hold the contemnor in civil contempt and impose a sanction that is designed to coerce him to comply with the court’s order. E.g., Shillitani v. United States, 384 U.S. 364, 368, 86 S.Ct. 1531, 1534, 16 L.Ed.2d 622 (1966); Badgley v. Santacroce, 800 F.2d 33, 36 (2d Cir.1986), cert. denied, — U.S. —, 107 S.Ct. 955, 93 L.Ed.2d 1003 (1987). The sanction generally takes the form of a jail term or a monetary fine, but it is not intended to be punitive, and the judgment will normally provide that the imprisonment or fine is to end as soon as the contemnor ceases his contumacious behavior. See, e.g., Shillitani v. United States, 384 U.S. at 368, 86 S.Ct. at 1534; Gompers v. Bucks Stove & Range Co., supra, 221 U.S. 418, 441-42, 31 S.Ct. 492, 498, 55 L.Ed. 797 (1911); In re Irving, 600 F.2d 1027, 1037 (2d Cir.), cert. denied, 444 U.S. 866, 100 S.Ct. 137, 62 L.Ed.2d 89 (1979); 28 U.S.C. § 1826(a) (allowing summary confinement of recalcitrant witness “until such time as the witness is willing to give” the required testimony or information). Thus, civil contemnors “are imprisoned only until they comply with the orders of the court.... They carry the keys of their prison in their own pockets.” In re Nevitt, 117 F. 448, 461 (8th Cir.1902). A sanction for criminal contempt, by contrast, is intended to serve a punitive and deterrent purpose. See Yates v. United States, 355 U.S. 66, 74, 78 S.Ct. 128, 133, 2 L.Ed.2d 95 (1957); United States v. Gracia, 755 F.2d at 992. Since it is designed to" }, { "docid": "23197025", "title": "", "text": "neither wholly civil nor altogether criminal. And ‘it may not always be easy to classify a particular act as belonging to either one of these two classes. It may partake of the characteristics of both.’ ” Gompers v. Buck Stove & Range Co., 221 U.S. 418, 441, 31 S.Ct. 492, 498, 55 L.Ed. 797 (1911) (citation omitted). It is at once “the proteus of the legal world, assuming an almost infinite diversity of forms,” Moskovitz, “Contempt of Injunctions, Civil and Criminal,” 43 Col. L.Rev. 780 (1945), and “sui generis—neither civil actions nor prosecutions for offenses, within the ordinary meaning of those terms.” Myers v. United States, 264 U.S. 95, 103, 44 S.Ct. 272, 273, 68 L.Ed. 577 (1924). Its civil and criminal aspects are “considered but nuances of each other and are often applied interchangeably.” Goldfarb, supra at 51. See also 5 Moore’s Federal Practice, ¶ 38.33[1] at 257 (2d ed. 1979). But despite these chameleonlike qualities, the problem of classification is not insurmountable. The “pivotal inquiry” is: “What does the court primarily seek to accomplish by imposing sentence?” Shillitani v. United States, supra, 384 U.S. at 370, 86 S.Ct. at 1535; Douglass v. First National Realty Corp., 543 F.2d 894, 898 (D.C. Cir. 1976). If the purpose is either to coerce compliance or compensate for injuries suffered by a private party, the contempt is civil. If the intent is to punish, by either fine or imprisonment, with a view toward vindicating governmental authority, the contempt is criminal. Id. See also Gompers v. Buck Stove & Range Co., supra, 221 U.S. at 441-444, 31 S.Ct. at 498-499; Ager v. Jane C. Stormont Hospital, 622 F.2d 496 at 500 (10th Cir. 1980). Other facts to be considered include the procedures followed, the parties before the court, and whether or not the contempt arises in or is separate from an original proceeding. See Moskovitz, supra at 786-791. As noted above, criminal, but not civil, contempt may invoke the right to trial by jury, pit the public against a defendant, and is not part of a main proceeding. Civil contempt is between private" }, { "docid": "23200022", "title": "", "text": "criminal contempt. In that ease, the Court identified two purposes for civil contempt: one coercive and the other compensatory. Id. at-, 114 S.Ct. at 2558 (citing United States v. United Mine Workers, 330 U.S. 258, 303-04, 67 S.Ct. 677, 701, 91 L.Ed. 884 (1947)). The Court cited as the paradigmatic civil contempt order one that allows the contemnor to purge the contempt by committing an affirmative act and who thus, as it were, “ ‘carries the keys of his prison in his own pocket.’ ” Bagwell, — U.S. at-, 114 S.Ct. at 2558 (quoting Gompers v. Bucks Stove & Range Co., 221 U.S. 418, 442, 31 S.Ct. 492, 498, 55 L.Ed. 797 (1911)); see also Penfield Co. v. SEC, 330 U.S. 585, 590, 67 S.Ct. 918, 921, 91 L.Ed. 1117 (1947). In holding that coercive sanctions must be capable of being purged to be civil and to be within the court’s inherent authority, Bagwell, — U.S. at -, 114 S.Ct. at 2557 (observing that civil fines like coercive imprisonment “exert a constant coercive pressure, and once the jural command is obeyed, the future, indefinite, daily fines are purged”), the Court reiterated a long-standing requirement of civil contempt. See Penfield, 330 U.S. at 590, 67 S.Ct. at 921 (citing In re Nevitt, 117 F. 448, 461 (8th Cir.1902)); see also United Mine Workers, 330 U.S. at 304-05, 67 S.Ct. at 701-02 (fixed fines may be considered capable of being purged when imposed and suspended pending future compliance); Shillitani v. United States, 384 U.S. 364, 370-71, 86 S.Ct. 1531, 1535-36, 16 L.Ed.2d 622 (1966) (civil contempt is imposed for remedial purpose if court conditions release from imprisonment upon contemnor’s willingness to testify). To the extent that “a sanction operates whether or not a party remains in violation of the court order, it obviously does not coerce any compliance.” In re Magwood, 785 F.2d 1077, 1082 (D.C.Cir.1986); 11 Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure, § 2960, at 585 (1973). If the contemnor cannot purge through an affirmative act, the sanction has no coercive effect and exceeds the appropriate" }, { "docid": "23197026", "title": "", "text": "accomplish by imposing sentence?” Shillitani v. United States, supra, 384 U.S. at 370, 86 S.Ct. at 1535; Douglass v. First National Realty Corp., 543 F.2d 894, 898 (D.C. Cir. 1976). If the purpose is either to coerce compliance or compensate for injuries suffered by a private party, the contempt is civil. If the intent is to punish, by either fine or imprisonment, with a view toward vindicating governmental authority, the contempt is criminal. Id. See also Gompers v. Buck Stove & Range Co., supra, 221 U.S. at 441-444, 31 S.Ct. at 498-499; Ager v. Jane C. Stormont Hospital, 622 F.2d 496 at 500 (10th Cir. 1980). Other facts to be considered include the procedures followed, the parties before the court, and whether or not the contempt arises in or is separate from an original proceeding. See Moskovitz, supra at 786-791. As noted above, criminal, but not civil, contempt may invoke the right to trial by jury, pit the public against a defendant, and is not part of a main proceeding. Civil contempt is between private parties and will be ancillary to a main proceeding. See, e. g., Penfield Co. v. SEC, 330 U.S. 585, 590, 67 S.Ct. 918, 921, 91 L.Ed. 1117 (1947); Gompers v. Buck Stove & Range Co., supra, 221 U.S. at 444-445 and 447-448, 31 S.Ct. at 499-500 and 500-501. Application of these criteria indicates the civil rather than criminal nature of this contempt. Sanctions sought against the respondents are not punitive but remedial, i e., to compensate debtors for injuries in connection with violation of the stay. The spectre of imprisonment, even in a coercive sense, is not present. The case was brought and tried under the assumption that only civil contempt was at stake. See Moskovitz, supra at 788. The notice of criminal contempt required by Rules 920 and 42 was not given. Neither side challenged the jurisdiction of this Court to determine the cause, consistent with Section 1481. The United States Attorney was not invited to enter an appear-anee, despite the fact that government property was involved. And there was no bifurcation of the" }, { "docid": "10178478", "title": "", "text": "behavior might manifest characteristics of both. Bessette v. Conkey, 194 U.S. 324, 329, 24 S.Ct. 665, 667, 48 L.Ed.2d 997 (1903). The decisive distinction, however, is not the behavior which gave rise to the contempt but rather the character and purpose of the sanction to be imposed by the court. See Shillitani v. United States, 384 U.S. 364, 86 S.Ct. 1531, 16 L.Ed.2d 622 (1965); Gompers v. Bucks Stove and Range Co., 221 U.S. 418, 31 S.Ct. 492, 55 L.Ed. 797 (1911); In re Reed, 11 B.R. 258, 266, 7 B.C.D. 777, 781 (Bkrtcy.D.Utah 1981). When the purpose of the contempt sanction is primarily remedial and coercive as opposed to punitive, the contempt is generally classified as civil. See e.g., Shillitani, supra. In Shillitani, the Supreme Court concluded that the contemnors’ imprisonment for disobeying an order to testify related to civil contempt. The court reasoned as follows: As the distinction was phrased in Gompers v. Bucks Stove & Range Co., 221 U.S. 418, 449 [31 S.Ct. 492, 501, 55 L.Ed. 797] (1911), the act of disobedience consisted solely “in refusing to do what had been ordered,” i.e., to answer the questions, not “in doing what had been prohibited.” And the judgments imposed conditional imprisonment for the obvious purpose of compelling the witnesses to obey the orders to testify. When the petitioners carry “the keys of their prison in their own pockets,” In re Nevitt, 117 F. 448, 461 (C.A. 8th Cir. 1902), the action “is essentially a civil remedy designed for the benefit of other parties and has quite properly been exercised for centuries to secure compliance with judicial decrees.” Green v. United States, 356 U.S. 165, 197 [78 S.Ct. 632, 650, 2 L.Ed.2d 672] (1958) (Black, J., dissenting). In short, if the petitioners had chosen to obey the order they would not have faced jail. Id. at 368, 86 S.Ct. at 1534. In the instant cases, the trustees applied for and were granted leave to examine Martin-Trigona under Bankruptcy Rule 205. He refused to cooperate or participate. The order of this court, incarcerating Martin-Trigona until he is purged of" }, { "docid": "2660061", "title": "", "text": "contempt fine is also evident. However, a reading of the district court’s order reveals that it did consider the full record and found no mitigating circumstances which would warrant reducing the fine. Thus, there is no basis for concluding that the denial of the motion was premised on an erroneous legal standard. In any event, it was not error for the court to consider the need to vindicate its authority. Criminal contempt exemplified by a fixed fine or sentence has as its principle purpose the vindication of judicial authority. See Gompers v. Bucks Stove and Range Co., 221 U.S. 418, 441, 31 S.Ct. 492, 55 L.Ed. 346 (1911). Civil contempt is meant to be remedial and to benefit the complainant either by coercing the defendant to comply with the Court’s order via a conditional fine or sentence or by compensating the complainant for any injury caused by the defendant’s disobedience. See Gompers, supra at 441-443, 31 S.Ct. 492. Nonetheless, it is clear that there is no bright line dividing civil and criminal contempt. Vindication of judicial authority is present in both. See Juidice v. Vail, 430 U.S. 327, 335-36 and n. 12, 97 S.Ct. 1211, and n. 12, 51 L.Ed.2d 376 (1977); Shillitani v. United States, 384 U.S. 364, 369-371, 86 S.Ct. 1531, 16 L.Ed.2d 622 (1966); Gompers v. Bucks Stove, supra, 221 U.S. at 443, 31 S.Ct. 492. In the words of the Second Circuit, “[t]he civil nature of the contempt is not turned criminal by the court’s efforts at vindicating its authority, an interest which may be implicated in either civil or criminal proceedings.” United States v. Wendy, 575 F.2d 1025, 1029 n. 13 (2d Cir. 1978). This is particularly true here, where the contempt sanction imposed was a coercive daily fine, designed to secure compliance with and respect for the court’s order. See Latrobe Steel Co. v. United States Steelworkers, 545 F.2d 1336, 1344 (3d Cir. 1976); id. at 1350 (Garth, J. concurring); Brotherhood of Locomotive Fire and Engine v. Bangor and Aroostook Ry Co., 127 U.S.App. D.C. 23, 36, 380 F.2d 570, 583 cert. denied, 389" }, { "docid": "22929119", "title": "", "text": "Bucks Stove & Range Co., 221 U.S. 418, 444, 31 S.Ct. 492, 55 L.Ed. 797 (1911); statute, see 18 U.S.C. § 402 (1970) (jury trial); and rule, see F.R.Crim.P. 42(b). But it would seem that the procedures to which an alleged contemnor is entitled is a function of the nature of the contempt judgment being sought, something which is ascertained by the factors we have previously discussed. . See, e. g., United States v. United Mine Workers, 330 U.S. 258, 295, 67 S.Ct. 677, 91 L.Ed. 884 (1947); Gompers v. Bucks Stove & Range Co., 221 U.S. 418, 441, 31 S.Ct. 492 (1911); Universal Athletic Sales Co. v. Salkeld, 511 F.2d 904, 910 (3d Cir. 1975); In re Nevitt, 117 F. 448, 458 (8th Cir. 1902); 3 C. Wright, Federal Practice and Procedure § 704 at 159 (1969). . See, e. g., Gompers v. Bucks Stove & Range Co., 221 U.S. 418, 441 — 42, 446, 31 S.Ct. 492, 55 L.Ed. 797 (1911). . See Norman Bridge Drug Co. v. Banner, 529 F.2d 822, 827 (5th Cir. 1976). . See Norman Bridge Drug Co. v. Banner, 529 F.2d 822, 827 (5th Cir. 1976); Universal Athletic Sales Co. v. Salkeld, 511 F.2d 904, 910 (3d Cir. 1975). . See, e. g., Shillitani v. United States, 384 U.S. 364, 368-69, 86 S.Ct. 1531, 16 L.Ed.2d 622 (1966); Gompers v. Bucks Stove & Range Co., 221 U.S. 418, 441-42, 31 S.Ct. 492, 55 L.Ed. 797 (1911); United States v. Spectro Foods Corp., 544 F.2d 1175 (3d Cir. 1976). The concurring opinion might be read to indicate that coercive civil contempts were not contemplated by the Supreme Court in United States v. United Mine Workers and in the earlier authorities relied upon by that case. As an historical matter, however, coercive contempt sanctions date at least from the turn of the century. They were carefully discussed in three of the leading American cases on con-tempts: Gompers v. Bucks Stove & Range Co., 221 U.S. 418, 31 S.Ct. 492, 55 L.Ed. 797 (1911); Doyle v. London Guarantee Co., 204 U.S. 599, 27 S.Ct. 313, 51" }, { "docid": "18565400", "title": "", "text": "to describe the contempt are not determinative. Shillitani v. United States, 384 U.S. 364, 369, 86 S.Ct. 1531, 1535, 16 L.Ed.2d 622 (1966). The same actions by a party can amount to both civil and criminal contempt. United States v. United Mine Workers, 330 U.S. 258, 299, 67 S.Ct. 677, 698-99, 91 L.Ed. 884 (1947). It is the nature and purpose of the punishment that is determinative. Id. at 297 n. 64, 67 S.Ct. at 698 n. 64 (quoting Gompers v. Buck’s Stove and Range Co., 221 U.S. 418, 441, 31 S.Ct. 492, 498, 55 L.Ed. 797 (1911)). The commonly stated distinction is that if the penalty is to compensate the complaining party or to coerce the defendant into complying with the court’s orders, the contempt is civil, while if the penalty is punitive, intended to vindicate the authority of the court, then the contempt is criminal. United Mine Workers, 330 U.S. at 302-04, 67 S.Ct. at 700-02. In Fleet’s case, the bankruptcy judge ended the hearing by saying that he was disallowing the claim “as punishment for what I perceive to be deliberate violation of the Court’s order for the second time.” Transcript at 100. This language suggests that the judge wished to impose criminal contempt in order to vindicate the authority of the court. However, the form in which the penalty is imposed suggests that it is also designed to “benefit ... the complainant,” Gompers, 221 U.S. at 441, 31 S.Ct. at 498. Although the better practice might have been to determine exactly what Hubbard's damages were as a result of Fleet’s misconduct, the court seemingly desired to compensate Hubbard by allowing him enough money to complete the repairs as well as additional money for the years of inconvenience he was forced to endure. Thus the penalty in this case seems to be of a dual nature, with both punitive and compensatory purposes. In contempt cases, the trial court has discretion to fashion the punishment to fit the circumstances. United Mine Workers, 330 U.S. at 303, 67 S.Ct. at 701. We find no abuse of that discretion in" }, { "docid": "3940356", "title": "", "text": "24 S.Ct. 665, 666, 48 L.Ed. 997 (1904). If the disobedient behavior is conduct of a continuing nature which the contemnor has the power to terminate, the court may choose to hold the contemnor in civil contempt and impose a sanction that is designed to coerce the contemnor to terminate his contumacious conduct. E.g., Shillitani v. United States, 384 U.S. 364, 368, 86 S.Ct. 1531, 1534, 16 L.Ed.2d 622 (1966). The sanction generally takes the form of a jail term or a monetary fine; but it is not intended to be punitive, and the court’s order will normally provide that the imprisonment or fine is to end as soon as the contemnor ends his contumacious behavior. See, e.g., id.; Gompers v. Bucks Stove & Range Co., supra, 221 U.S. at 441-42, 31 S.Ct. at 498; In re Irving, 600 F.2d 1027, 1037 (2d Cir.), cert. denied, 444 U.S. 866, 100 S.Ct. 137, 62 L.Ed.2d 89 (1979); In re Nevitt, 117 F. 448, 461 (8th Cir.1902) (civil contemnors “are imprisoned only until they comply with the orders of the court .... They carry the keys of their prison in their own pockets.”). If the court seeks to punish the contemnor for his past contumacy, it may treat the conduct as criminal contempt and impose a jail term or a monetary fine as vindication of the court’s authority. See 18 U.S.C. § 401 (1976) (a federal court “shall have power to punish by fine or imprisonment, at its discretion, ... (3) Disobedience or resistance to its lawful writ, process, order, rule, decree, or command.”). Since the sanction imposed following an adjudication of criminal contempt is designed to punish rather than to coerce obedience in the future, the court’s order does not permit the contemnor to terminate the punishment by ending his contumacious behavior. See Gompers v. Bucks Stove & Range Co., supra, 221 U.S. at 441-43, 31 S.Ct. at 498-99; In re Irving, supra. Many forms of disobedience may be dealt with either as acts of civil contempt, or as acts of criminal contempt, or as both. United States v. United Mine" }, { "docid": "212515", "title": "", "text": "litigant has failed to provide a full accounting. See id.; see also Threadgill v. Beard, 225 Kan. 296, 590 P.2d 1021, 1026 (1979) (parallel statute for small claims court judgments providing penalties of contempt, can be invoked to secure compliance with order to appear and make disclosure). In light of the evidence presented at the September 1988 hearing, we conclude that the district court did not abuse its discretion by using the contempt power granted by K.S.A. 60-2419 against the O’Connors upon their failure to provide a full and complete accounting of their assets. Accordingly, we affirm the court’s finding of contempt. Despite this conclusion, however, we believe the district court imposed contempt sanctions on the O’Connors which are inconsistent with the principles governing civil contempt. Although the court could properly infer from the evidence at the hearing that the O’Connors had a present ability to pay the judgment, thereby shifting the burden on to the O’Connors to show an inability to comply, see Dono van, 759 F.2d at 1486 (10th Cir.1985); Heinold Hog Market, Inc. v. McCoy, 700 F.2d 611, 615 (10th Cir.1983), neither the record nor the district court’s findings adequately demonstrate the basis and purpose of the $150,000 sanction imposed in the May 9, 1989 order appealed from. Sanctions for civil contempt may only be employed for either or both of two distinct remedial purposes: “(1) to compel or coerce obedience to a court order ...; and (2) to compensate the contemnor’s adversary for injuries resulting from the contemnor’s noncompliance[.]” Shuffler, 720 F.2d at 1147 (citing Shillitani v. United States, 384 U.S. 364, 370-71, 86 S.Ct. 1531, 1536, 16 L.Ed.2d 622 (1966) and Gompers v. Bucks Stove & Range Co., 221 U.S. 418, 31 S.Ct. 492, 55 L.Ed. 797 (1911)); see United States v. United Mine Workers, 330 U.S. 258, 303-04, 67 S.Ct. 677, 701, 91 L.Ed. 884 (1947); Ager v. Jane C. Stormont Hosp., 622 F.2d 496, 500 (10th Cir.1980). Where the purpose of the sanction is “coercive,” the court must consider “the character and magnitude of the harm threatened by continued contumacy, and the probable" }, { "docid": "22953870", "title": "", "text": "compel obedience to a court order, Shillitani, 384 U.S. at 370, 86 S.Ct. at 1535, or to compensate the contemnor’s adversary for the injuries which result from the noncompliance. Gompers, 221 U.S. 418, 448-449, 31 S.Ct. 492, 500-501, 55 L.Ed. 797. Thus, there are two forms of civil contempt: compensatory and coercive. United States v. Asay, 614 F.2d 655, 659 (9th Cir.1980). A contempt adjudication is plainly civil in nature when the sanction imposed is wholly remedial, serves only the purposes of the complainant, and is not intended as a deterrent to offenses against the public. McCrone v. United States, 307 U.S. 61, 64, 59 S.Ct. 685, 686, 83 L.Ed. 1108 (1939). A court’s power to impose coercive civil contempt depends upon the ability of the contemnor to comply with the court’s coercive order. See Shillitani v. United States, 384 U.S. at 371, 86 S.Ct. at 1536 (citing Maggio v. Zeitz, 333 U.S. 56, 76, 68 S.Ct. 401, 411, 92 L.Ed. 476 (1948). While civil contempt may have an incidental effect of vindicating the court’s authority and criminal contempt may permit an adversary to derive incidental benefit from the fact that the sanction tends to prevent a repetition of the disobedience, such incidental effects do not change the primary purpose of either type of contempt. Gompers, 221 U.S. at 443, 31 S.Ct. at 498. Where, however, a judgment of contempt contains an admixture of criminal and civil elements, “the criminal aspect of the order fixes its character for purposes of procedure on review.” Penfield Co. of California v. Securities & Exchange Commission, 330 U.S. 585, 591, 67 S.Ct. 918, 921, 91 L.Ed. 1117 (1947). Similarly, where the fine imposed is part compensation and part punishment, the criminal feature dominates and fixes its character for purpose of review. Nye v. United States, 313 U.S. 33, 42-43, 61 S.Ct. 810, 812-813, 85 L.Ed. 1172 (1941) (quoting Union Tool Co. v. Wilson, 259 U.S. 107, 110, 42 S.Ct. 427, 428, 66 L.Ed. 848 (1922). A contempt judgment is criminal when it requires the contemnor to pay to the government an unconditional fine. See" }, { "docid": "212516", "title": "", "text": "Inc. v. McCoy, 700 F.2d 611, 615 (10th Cir.1983), neither the record nor the district court’s findings adequately demonstrate the basis and purpose of the $150,000 sanction imposed in the May 9, 1989 order appealed from. Sanctions for civil contempt may only be employed for either or both of two distinct remedial purposes: “(1) to compel or coerce obedience to a court order ...; and (2) to compensate the contemnor’s adversary for injuries resulting from the contemnor’s noncompliance[.]” Shuffler, 720 F.2d at 1147 (citing Shillitani v. United States, 384 U.S. 364, 370-71, 86 S.Ct. 1531, 1536, 16 L.Ed.2d 622 (1966) and Gompers v. Bucks Stove & Range Co., 221 U.S. 418, 31 S.Ct. 492, 55 L.Ed. 797 (1911)); see United States v. United Mine Workers, 330 U.S. 258, 303-04, 67 S.Ct. 677, 701, 91 L.Ed. 884 (1947); Ager v. Jane C. Stormont Hosp., 622 F.2d 496, 500 (10th Cir.1980). Where the purpose of the sanction is “coercive,” the court must consider “the character and magnitude of the harm threatened by continued contumacy, and the probable effectiveness of any suggested sanction in bringing about the result desired.” United Mine Workers, 330 U.S. at 304, 67 S.Ct. at 701. The Supreme Court has also recently cautioned that a court must exercise “the least possible power adequate to the end proposed.” Spallone v. United States, 493 U.S. 265, 280, 110 S.Ct. 625, 635, 107 L.Ed.2d 644 (1990) (quotation omitted). To be consistent with these principles, coercive civil sanctions may only continue “until terminated by compliance.” Professional Air Traffic Controllers, 703 F.2d at 445. On the other hand, “[i]f a fine is imposed for compensatory purposes, the amount of the fine must be based upon the complainant’s actual losses sustained as a result of the contumacy.” Perfect Fit Indus., Inc. v. Acme Quilting Co., Inc., 646 F.2d 800, 810 (2d Cir.1981); see United Mine Workers, 330 U.S. at 304, 67 S.Ct. at 701; Allied Materials Corp., 620 F.2d 224, 227 (10th Cir.1980). Moreover, “[i]n the absence of evidence showing the amount of the loss, any sum awarded by the court is speculative and therefore" }, { "docid": "22953869", "title": "", "text": "contempt, the focus of the inquiry is often “not [upon] the fact of punishment but rather its character and purpose. Shillitani v. United States, 384 U.S. 364, 369, 86 S.Ct. 1531, 1534, 16 L.Ed.2d 622 (1966) (quoting Gompers v. Bucks Stove & Range Co., 221 U.S. 418, 441, 31 S.Ct. 492, 498, 55 L.Ed. 797 (1911)). The test, as formulated by the Shillitani Court, is “what does the court primarily seek to accomplish by imposing [the sanction]?” 384 U.S. at 370, 86 S.Ct. at 1535. The primary purpose of criminal contempt is to punish past defiance of a court’s judicial authority, thereby vindicating the court. See Shillitani, 384 U.S. at 369, 86 S.Ct. at 1534; Gompers, 221 U.S. at 441, 31 S.Ct. at 498; Accord United States v. Powers, 629 F.2d 619, 627 (9th Cir.1980). The principal beneficiaries of such an order are the courts and the public interest. Ager v. Jane C. Stormont Hospital & Training School for Nurses, 622 F.2d 496, 500 (10th Cir.1980). Civil contempt is characterized by the court’s desire to compel obedience to a court order, Shillitani, 384 U.S. at 370, 86 S.Ct. at 1535, or to compensate the contemnor’s adversary for the injuries which result from the noncompliance. Gompers, 221 U.S. 418, 448-449, 31 S.Ct. 492, 500-501, 55 L.Ed. 797. Thus, there are two forms of civil contempt: compensatory and coercive. United States v. Asay, 614 F.2d 655, 659 (9th Cir.1980). A contempt adjudication is plainly civil in nature when the sanction imposed is wholly remedial, serves only the purposes of the complainant, and is not intended as a deterrent to offenses against the public. McCrone v. United States, 307 U.S. 61, 64, 59 S.Ct. 685, 686, 83 L.Ed. 1108 (1939). A court’s power to impose coercive civil contempt depends upon the ability of the contemnor to comply with the court’s coercive order. See Shillitani v. United States, 384 U.S. at 371, 86 S.Ct. at 1536 (citing Maggio v. Zeitz, 333 U.S. 56, 76, 68 S.Ct. 401, 411, 92 L.Ed. 476 (1948). While civil contempt may have an incidental effect of vindicating the court’s" } ]

[ { "docid": "4127735", "title": "", "text": "need to infer the person’s character as a step in the reasoning from the other acts to the conduct in issue.”). As we explain below, that did not occur here. “[T]he line between what is permitted and what is prohibited under Rule 404(b) is sometimes quite subtle,” United States v. Murray, 103 F.3d 310, 316 (3d Cir.1997), and “despite the recurrence of the issue[], the opinions are often poorly reasoned and provide little guidance to trial judges.” Wright & Graham, § 5239 at 427. The problem stems in part from two competing realities that surround most Rule 404(b) evidence. On the one hand, proponents of Rule 404(b) evidence will normally be able to conceive of a proper purpose other than propensity. But if this were sufficient to admit the evidence, the basic idea embodied by Rule 404(b), that simply because one act was committed in the past does not mean that a like act was again committed, would be threatened. On the other hand, all Rule 404(b) evidence is at least somewhat prejudicial to the party against whom it is admitted and will invite the jury to make inferences about his or her character. This alone cannot lead to exclusion. United States v. Pettiford, 517 F.3d 584, 590 (D.C.Cir.2008). We resolve this inherent tension by requiring that the purpose of the Rule 404(b) evidence be established without an inference that the party against whom it is admitted acted in conformity with whatever the evidence of the prior act says about his or her character. We therefore do not exclude evidence simply if it invites character inferences, but only evidence that is used to prove a person’s character and that invites the inference that the person acted in conformity with that character, and was therefore more likely to have committed the charged crime. The foregoing resolves this case, which presents a somewhat novel fact pattern. The Government insists that the evidence of the 2008 drug sale does not say anything about Smith’s character, but simply provides his motive for the assault in 2010, “a continuing interest in his turf.” Gov’t Br." } ]

[ { "docid": "8693432", "title": "", "text": "admitted prior bad acts evidence in drug cases. United States v. Miller, 673 F.3d 688, 696 (7th Cir.2012) (“[Ajdmission of prior drug crimes to prove intent to commit present drug crimes has become too routine.”); see also United States v. Jones, 389 F.3d 753, 756-58 (7th Cir.2004), vacated. on other grounds by 545 U.S. 1125, 125 S.Ct. 2948, 162 L.Ed.2d 864 (2005). Rule 404, however, does not present an insurmountable barrier to admission of prior bad acts evidence. To begin, “[identification of an at-issue, non-propensity Rule 404(b) exception is a necessary condition for admitting the evidence[.]” Miller, 673 F.3d at 697. Thus, district courts must consider “specifically how the prior conviction tendfs] to” serve the non-propensity exception. Id. at 699 (emphasis added). Additionally, not only must the evidence be relevant to a valid non-propensity issue, the defendant must also “meaningfully dispute” that non-propensity issue. Miller, 673 F.3d at 697. We find both requirements satisfied in Richards’s case and thus see no error in the district court finding the California calls probative of a non-propensity purpose. First, knowledge is a valid non-propensity purpose, and Richards placed his knowledge of the bag’s contents directly at issue when he took the stand and testified that he believed the bag contained money, not drugs. Second, a “specific” link exists between the calls and Richards’s testimony, making the calls relevant to his knowledge of the bag’s contents. a. Richards’s Defense Put His Knowledge of the Bag’s Contents Directly in Issue A defendant must “meaningfully dispute”- the non-propensity issue justifying admission of the Rule 404(b) evidence. Miller, 673 F.3d at 697. Thus, if the defendant simply asserts his innocence in a more general way or argues .his conduct failed to satisfy some other element of the crime besides intent or knowledge, prior bad acts evidence is inadmissible. Id. Miller illustrates the more general defense assertions that would not meaningfully dispute a Rule 404(b) exception. In that case, the defendant — on trial for possession with intent to distribute — did not dispute intent. (That police found the large quantity of drugs at issue packaged into smaller" }, { "docid": "20537044", "title": "", "text": "virtually meaningless. We have made this point before. See, e.g., United States v. McMillan, 744 F.3d 1033, 1038 (7th Cir.2014); Miller, 673 F.3d at 696 (explaining that “if applied mechanically,” the permitted purposes listed in the rule “would overwhelm the central principle” of the rule against propensity evidence (quoting Beasley, 809 F.2d at 1279)). To resolve this inherent tension in the rule, we have cautioned that it’s not enough for the proponent of the other-act evidence simply to point to a purpose in the “permitted” 'list and assert that the other-act evidence, is relevant to it. Rule 404(b) is not just concerned with the ultimate conclusion, but also with the chain of reasoning that supports the non-propensity purpose for admitting the evidence. United States v. Reed, 744 F.3d 519, 524-25 (7th Cir.2014); United States v. Lee, 724 F.3d 968, 976-77 (7th Cir.2013); Miller, 673 F.3d at 697-98. In other words, the rule allows the use of other-act evidence only when its admission is supported by some propensity-free chain of reasoning. Lee, 724 F.3d at 978 (“When one looks beyond the purposes for which the evidence is being offered and considers what inferences the jury is being asked to draw from that evidence, and by what chain of logic, it will sometimes become clear ... that despite the label, the jury is essentially being asked to rely on the evidence as proof of the defendant’s propensity to commit the charged offense.”); Miller, 673 F.3d at 697-99; United States v. Jones, 389 F.3d 753, 757 (7th Cir.2004), vacated on other grounds by Jones v. United States, 545 U.S. 1125, 125 S.Ct. 2948, 162 L.Ed.2d 864 (2005). This is not to say that other-act evidence must be excluded whenever a propensity inference can be drawn; rather, Rule 404(b) excludes the evidence if its relevance to “another purpose” is established only through the forbidden propensity inference. Spotting a hidden propensity inference is not always easy. See Jones, 389 F.3d at 757. For this reason, although we have long required the record to reflect a “principled exercise of discretion” by the district court, Beasley, 809" }, { "docid": "23424286", "title": "", "text": "admitted, it must be relevant logically, under Rules 404(b) and 402, to any issue other than the defendant’s propensity to commit the act in issue, and its probative value must outweigh its prejudicial effect). In denying ARCO’s motion for a new trial, the district court found Becker’s testimony admissible under Rule 404(b) because it was evidence of a “scheme or plan of fabricating reasons used by the deci-sionmaker in terminating employees.” Becker I, 15 F.Supp.2d at 614. The district court also reasoned that “evidence of an instance in which a pretext was fabricated in connection with the termination of another employee, could also be relevant to the issue of whether Mr. Victor, the decision maker in this case, acted with discriminatory intent.” Id. Reading these passages in conjunction with the court’s statements on the record during the trial, we understand that the district court predicated its admissibility ruling on its conclusion that the Seaver evidence showed the plan, pattern or practice ARCO utilized in terminating its employees, which in turn was relevant to determining a specific disputed fact in the case — whether ARCO provided pretextual reasons to support Becker’s dismissal. This specific disputed fact, in turn, was relevant to an ultimate fact in dispute — whether ARCO intentionally discriminated against Becker because of his age. Hence, the proffered purpose for introducing evidence tending to establish ARCO’s plan in terminating employees was so that the jury could infer that ARCO had a discriminatory intent in discharging Becker from the way it allegedly terminated Seaver. On appeal, Becker repeats this theory of admissibility. See Ap-pellee Becker’s Br. at 40. ARCO contends that the district court’s ruling in this regard is erroneous for two reasons. First, it asserts that the Seaver evidence could not be admitted to establish Victor’s or Goldsmith’s “scheme” or “plan” because neither had asked Becker to recall any aspects of Seaver’s performance on the Fibersorb project. As ARCO correctly points.out, even according to Becker’s version of the events that took place at the August 1990 meeting, Ra-mey — not Victor — asked Becker to substantiate Ramey’s recollection concerning" }, { "docid": "8693431", "title": "", "text": "to have had upon the jury’s decision.” Hicks, 635 F.3d at 1069 (citing United States v. Zapata, 871 F.2d 616, 622 (7th Cir.1989)). Importantly, nothing “suggest[s] that after-the-fact remarks during closing argument have any bearing on the district court’s original Rule 404(b) determination.” United States v. Kieffer, 68 Fed.Appx. 726, 730 (7th Cir.2003) (non-precedential). Thus, the prosecutor’s use of Rule 404(b) evidence during closing presents a question separate from whether the court properly admitted the evidence in the first place. Richards wages three attacks on the district court’s admission of the California calls. First, he argues that the tapes are not relevant to knowledge, the non-propensity issue proffered to justify their admission. Second, he argues that the cocaine transactions discussed on the tapes are not similar enough or temporally proximate enough to be relevant. And third, Richards argues that the potential for unfair prejudice outweighs the probative value of the evidence. 1. The California Calls Are Relevant to Richards’s Knowledge That the Bag Contained Cocaine We have recently cautioned that district courts have too readily admitted prior bad acts evidence in drug cases. United States v. Miller, 673 F.3d 688, 696 (7th Cir.2012) (“[Ajdmission of prior drug crimes to prove intent to commit present drug crimes has become too routine.”); see also United States v. Jones, 389 F.3d 753, 756-58 (7th Cir.2004), vacated. on other grounds by 545 U.S. 1125, 125 S.Ct. 2948, 162 L.Ed.2d 864 (2005). Rule 404, however, does not present an insurmountable barrier to admission of prior bad acts evidence. To begin, “[identification of an at-issue, non-propensity Rule 404(b) exception is a necessary condition for admitting the evidence[.]” Miller, 673 F.3d at 697. Thus, district courts must consider “specifically how the prior conviction tendfs] to” serve the non-propensity exception. Id. at 699 (emphasis added). Additionally, not only must the evidence be relevant to a valid non-propensity issue, the defendant must also “meaningfully dispute” that non-propensity issue. Miller, 673 F.3d at 697. We find both requirements satisfied in Richards’s case and thus see no error in the district court finding the California calls probative of a non-propensity purpose." }, { "docid": "20537045", "title": "", "text": "(“When one looks beyond the purposes for which the evidence is being offered and considers what inferences the jury is being asked to draw from that evidence, and by what chain of logic, it will sometimes become clear ... that despite the label, the jury is essentially being asked to rely on the evidence as proof of the defendant’s propensity to commit the charged offense.”); Miller, 673 F.3d at 697-99; United States v. Jones, 389 F.3d 753, 757 (7th Cir.2004), vacated on other grounds by Jones v. United States, 545 U.S. 1125, 125 S.Ct. 2948, 162 L.Ed.2d 864 (2005). This is not to say that other-act evidence must be excluded whenever a propensity inference can be drawn; rather, Rule 404(b) excludes the evidence if its relevance to “another purpose” is established only through the forbidden propensity inference. Spotting a hidden propensity inference is not always easy. See Jones, 389 F.3d at 757. For this reason, although we have long required the record to reflect a “principled exercise of discretion” by the district court, Beasley, 809 F.2d at 1279, we have more recently emphasized the importance of identifying the non-propensity theory that makes the other-act evidence relevant and specifically asking how the evidence tends to make a particular fact of consequence more or less probable. For example, in United States v. Ciesiolka, 614 F.3d 347, 355 (7th Cir.2010), we noted that it was critical to “delineate precisely the legitimate ends to which the evidence could be applied.” In Miller we explained that the court should ask “more specifically how” the other-act evidence is relevant to a permitted purpose in order to help expose impermissible uses of other-act evidence for pure propensity purposes. 673 F.3d at 699. In United States v. Richards, 719 F.3d 746 (7th Cir.2013), we said that the “district court[ ] must consider specifically how the prior conviction tends to serve the non-propensity exception.” Id. at 759 (internal quotation marks and alterations omitted). And in Lee we explained that the court must “consider the chain of logic by which the jury is being asked to glean the defendant’s knowledge," }, { "docid": "23399389", "title": "", "text": "propensity or disposition for certain activity. Pinney, 967 F.2d at 914. We have held that “a court must be able to articulate a way in which the tendered evidence logically tends to establish or refute a material fact in issue, and that chain of logic must include no link involving an inference that a bad person is disposed to do bad acts.” Id. at 915; accord Becker v. ARCO Chem. Co., 207 F.3d 176, 191 (3d Cir.2000). The District Court ruled that Bedding-field’s testimony was offered to establish that Schiff did not have a discriminatory intent when he discharged Ansell, intent being an enumerated proper purpose under Rule 404(b). Ansell contends that Beddingfield’s testimony was not evidence of intent, but rather was evidence of Schiff s good character or propensity not to discriminate against older workers, introduced to show that he acted “in conformity therewith” when he fired Ansell. As such, Ansell argues that Beddingfield’s testimony is classic propensity evidence that is inadmissible under Rule 404(b). The nature of the underlying case illustrates the true purpose of Beddingfield’s testimony. At trial, the parties did not dispute that Ansell made out a prima facie case of age discrimination under the ADEA. Likewise, there was no dispute that Green Acres advanced a legitimate, nondiseriminatory reason for its decision to fire Ansell. Accordingly, the sole question for the jury was whether the legitimate reason advanced by Green Acres was the true reason for the termination, or whether that reason was simply a pretext for unlawful discrimination. See generally Keller v. Orix Credit Alliance, Inc., 130 F.3d 1101, 1108 (3d Cir.1997) (en banc) (discussing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973)). Evidence of an employer’s conduct towards other employees has long been held relevant and admissible to show that an employer’s proffered justification is pretext. See, e.g., McDonnell Douglas Corp., 411 U.S. at 804, 93 S.Ct. 1817 (stating that evidence that employees of another race were treated differently from the plaintiff under comparable circumstances is “[especially relevant” to whether employer’s proffered explanation is pretextual); Becker v." }, { "docid": "23424301", "title": "", "text": "court erred in admitting the Seaver evidence based on its conclusion that it could be introduced for the non-character purpose of establishing ARCO’s intent to discriminate against Becker. See Pinney, 967 F.2d at 916. Becker next contends that the Seaver evidence is admissible under the alternative theory that it circumstantially established ARCO’s “plan,” which is a specific non-character purpose listed in Rule 404(b). Becker argues that the district court properly admitted the evidence to establish, under Rule 404(b)., ARCO’s plan, scheme, “practice,” “modus operandi” or “pattern” of fabricating reasons for terminating unwanted employees. See app. at 3230. This assertion does little to answer the question of whether the evidence is admissible pursuant to that exception, however, as we have recognized that where proof of “a plan or design is not an element of the offense[,] ... evidence that shows a plan must be relevant to some ultimate issue in the case.” See J & R Ice Cream, 31 F.3d at 1269 (internal quotation marks omitted). Therefore, in order to determine if the Seaver evidence properly was admitted to show ARCO’s “scheme or plan,” which the district court described alternatively as ARCO’s “pattern,” “practice,” and “modus operandi,” we must pinpoint the evidential fact that Becker sought to prove from his testimony in that regard. From that initial inquiry, we must determine if the evidence, in the form that it was admitted at trial, satisfied the criteria necessary for admitting Rule 404(b) evidence on the theory that it establishes circumstantially ARCO’s plan or scheme. As to the initial question, i.e., the evidential fact .that' Becker sought to establish in admitting the testimony,, Becker contends that the evidence was admitted to prove ARCO’s intent. Given our discussion above, this argument obviously is unavailing. To reiterate, the Seaver evidence cannot be admitted based on the theory that it was . relevant to prove the ultimate disputed issue in the case, given the circumstance that the evidence would establish ARCO’s intent to discriminate against Becker only if the jury drew the inference that in terminating him, ARCO acted in conformity with its purported prior conduct" }, { "docid": "23424291", "title": "", "text": "Himelwright, 42 F.3d at 782 (citing United States v. Jemal, 26 F.3d 1267, 1272 (3d Cir.1994)); Government of the Virgin Islands v. Pinney, 967 F.2d 912, 915 (3d Cir.1992) (“In order ... to admit evidence under Rule 404(b), a court must be able to articulate a way in which the tendered evidence logically tends to establish or refute a material fact in issue, and that chain of logic must include no link involving an inference that a bad person is disposed to do bad acts.”). The Seaver evidence fails this test because the logical connection between ARCO’s alleged “fabrication” of performance problems in relation to Seaver’s dismissal and its purported conduct in terminating Becker is the inference that ARCO was likely to have fabricated customer complaints and other performance problems in Becker’s case merely because ARCO previously engaged in a similar impropriety in facilitating Seaver’s dismissal. The problem is, as we recognized in Morley, “this is the very evil that Rule 404(b) seeks to prevent.” See Morley, 199 F.3d at 134. Put another way, the evidence of ARCO’s “manner” of terminating Seaver simply is not relevant on the issue of whether ARCO discriminated against Becker absent the inference that ARCO had a propensity to act in a certain way, and that in firing Becker, it acted in conformity with its prior conduct. Compare Pinney, 967 F.2d at 917 (“In this case ... there is no chain of logical inferences between a rape of Jamilla by [the defendant] and [the victim’s credibility, which was the proffered purpose for admitting the.evi dence under Rule 404(b) ], which does not involve an inference that if Pinney raped Jamilla he is likely to have raped [the victim] as well.”); see also Government of the Virgin Islands v. Archibald, 987 F.2d 180, 187 (3d Cir.1993) (finding that evidence that defendant had sexual intercourse with ten year-old victim’s sister who was 13 or 14 years old at the time was inadmissible under Rule 404(b); court held that the evidence “suggested to the jury that [defendant] had a propensity to engage in intercourse with minor females, and" }, { "docid": "23424300", "title": "", "text": "be connected to the issue of ARCO’s intent, with no link predicated on an inference concerning ARCO’s propensity to act in a certain way. Of course, this is not surprising given the record presented here and Becker’s theory of the case. Compare United States v. Dise, 763 F.2d 586, 592-93 (3d Cir.1985) (defendant’s prior similar incidents of misconduct were relevant to establish his intent to injure inmates where defendant contended that he acted only to maintain safety or to prevent harm). Indeed, our review of the record confirms that Becker grounded his case against ARCO largely on Ms assertion that the customer complaints and alleged performance problems were pretextual. Yet only if the jury were to draw the inference that in terminating Becker, ARCO must have fabricated his alleged performance deficiencies, would the Seaver evidence have established circumstantially ARCO’s intent to discriminate against Becker. As we observed in Morley, this sort of character-based inference “is the very evil that Rule 404(b) seeks to prevent.” Morley, 199 F.3d at 134. Therefore, we hold that the district court erred in admitting the Seaver evidence based on its conclusion that it could be introduced for the non-character purpose of establishing ARCO’s intent to discriminate against Becker. See Pinney, 967 F.2d at 916. Becker next contends that the Seaver evidence is admissible under the alternative theory that it circumstantially established ARCO’s “plan,” which is a specific non-character purpose listed in Rule 404(b). Becker argues that the district court properly admitted the evidence to establish, under Rule 404(b)., ARCO’s plan, scheme, “practice,” “modus operandi” or “pattern” of fabricating reasons for terminating unwanted employees. See app. at 3230. This assertion does little to answer the question of whether the evidence is admissible pursuant to that exception, however, as we have recognized that where proof of “a plan or design is not an element of the offense[,] ... evidence that shows a plan must be relevant to some ultimate issue in the case.” See J & R Ice Cream, 31 F.3d at 1269 (internal quotation marks omitted). Therefore, in order to determine if the Seaver evidence properly" }, { "docid": "23424292", "title": "", "text": "evidence of ARCO’s “manner” of terminating Seaver simply is not relevant on the issue of whether ARCO discriminated against Becker absent the inference that ARCO had a propensity to act in a certain way, and that in firing Becker, it acted in conformity with its prior conduct. Compare Pinney, 967 F.2d at 917 (“In this case ... there is no chain of logical inferences between a rape of Jamilla by [the defendant] and [the victim’s credibility, which was the proffered purpose for admitting the.evi dence under Rule 404(b) ], which does not involve an inference that if Pinney raped Jamilla he is likely to have raped [the victim] as well.”); see also Government of the Virgin Islands v. Archibald, 987 F.2d 180, 187 (3d Cir.1993) (finding that evidence that defendant had sexual intercourse with ten year-old victim’s sister who was 13 or 14 years old at the time was inadmissible under Rule 404(b); court held that the evidence “suggested to the jury that [defendant] had a propensity to engage in intercourse with minor females, and that he had a particular affinity for underage daughters of Ursula Williams”). Accordingly, because Becker has failed to articulate how the Seaver evidence fits into a chain of logical inferences pointing towards ARCO’s intent without involving the inference that because ARCO committed the first act it was more likely to have committed the second, see Pinney, 967 F.2d at 916, we cannot agree with the district court’s conclusion that the evidence was admissible under Rule 404(b) to establish ARCO’s intent to discriminate against Becker. Our recent opinion in Morley supports our conclusion in this regard. See 199 F.3d at 129. There the government charged the defendant, Morley, with conspiracy, mail fraud, bank fraud and wire fraud in connection with his conduct in allegedly attesting to a signature on a forged will. The government’s theory of the case was that Holmes, Morley’s business associate, had an agreement with the decedent’s two sons whereby he would draft a “fake will” that would make it seem that the decedent left the two sons with the entirety of his" }, { "docid": "1852922", "title": "", "text": "749 F.2d 1519, 1524 (11th Cir.1985) (internal quotation marks and citation omitted). These principles have been applied to exclude evidence of conduct that falls short of the definition of habit. One such case is Becker v. ARCO Chem. Co., 207 F.3d 176 (3d Cir.2000), an age discrimination case. In that case, defendant offered a legitimate non-discriminatory reason for its termination of Becker. To rebut that defense, Becker offered evidence that ARCO had previously fabricated evidence of a legitimate reason for terminating one of Becker’s co-employees, Linwood Seaver. See id. at 183, 185. Specifically, Becker testified that two of his supervisors solicited his assistance in fabricating evidence of Seaver’s poor performance on a particular project to facilitate Seaver’s termination. See id. at 185. “[TJhe district court found Becker’s testimony admissible under Rule 404(b) because it was evidence of a scheme or plan of fabricating reasons used by the deci-sionmaker in terminating employees.” Id. at 189 (internal quotation marks and citation omitted). The appellate court rejected this reasoning. See id. at 201 (“[WJe hold that standing alone, the similarities between the Seaver evidence and the allegation of fact in this case do not provide a sufficient foundation from which the existence of ARCO’s ‘scheme or plan’ of fabricating reasons in terminating its employees may be inferred so as to justify admitting the Seaver evidence on that basis.”). The district court also found the Seaver evidence admissible “under the theory that it tended to show ARCO’s ‘habit’ when confronted with the task of having to terminate its employees.” Id. at 204. The appellate court disagreed: Clearly, Rule 406 does not support the introduction of the Seaver evidence on the basis that it was ARCO’s “habit” to fabricate reasons for terminating its employees. The Seaver evidence did not show ARCO’s “regular response to a specific situation,” as the nature of the alleged conduct — the fabrication of reasons to justify its employees’ dismissals — is not the sort of semi-automatic, situation-specific conduct admitted under the rule. Moreover, the Seaver evidence ostensibly showed only, at best, one other instance in which ARCO exhibited its alleged" }, { "docid": "15096308", "title": "", "text": "to facilitate Mr. Seaver’s termination by ARCO. Mr. Victor was the ARCO employee who made the decision to terminate Becker’s employment. ARCO argued that the testimony should not be admitted because it was evidence of a prior wrong which was being offered to show that Mr. Victor acted in conformity with the prior bad act by fabricating complaints about the quality of Becker’s work. Although evidence of prior wrongs is inadmissible to show that a person acted in conformity therewith on a particular occasion, the Court found Becker’s testimony to be admissible under Federal Rule of Evidence 404(b) which permits the use of evidence of prior bad acts to prove “motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.” Fed.R.Evid. 404(b). Becker’s testimony is evidence of a scheme or plan of fabricating reasons used by the decision maker in terminating employees. See Gastineau v. Fleet Mortgage Corp., 137 F.3d 490 (7th Cir. 1998)(admitting document fraudulently created by plaintiff to show plaintiffs common scheme or plan of creating false documents relating to disputes with employers). As such, it is relevant to the issue of whether the reasons provided by ARCO for Becker’s discharge were pretextual. The evidence of an instance in which a pretext was fabricated in connection with the termination of another employee, could also be relevant to the issue of whether Mr. Victor, the decision maker in this case, acted with discriminatory intent. Stair v. Lehigh Valley Carpenters Local Union No. 600, 813 F.Supp. 1116, 1119 (E.D.Pa. 1993), aff'd, 43 F.3d 1463 (3d Cir. 1994)(holding that employer’s actions toward other employees can be evidence of employer’s discriminatory intent). Thus, the evidence regarding an attempt to create pretextual reasons for Mr. Seaver’s termination was properly admitted for the purpose of showing intent and plan. Of course, there are limitations on the admissibility of Rule 404(b) evidence. Pursuant to Rule 403, the evidence can be excluded if the its probative value is substantially outweighed by the danger of unfair prejudice. Fed.R.Evid. 403, see U.S. v. Sriyuth, 98 F.3d 739 (3d Cir. 1996), cert. denied, — U.S. -," }, { "docid": "1852921", "title": "", "text": "Rule 406 because it necessarily engenders the very real possibility that such evidence will be used to establish a party’s propensity to act in conformity with its general character, thereby thwarting Rule 404’s prohibition against the use of character evidence except for narrowly prescribed purposes.”). “[BJefore a court may admit evidence of habit, the offering party must establish the degree of specificity and frequency of uniform response that ensures more than a mere ‘tendency’ to act in a given manner, but rather, conduct that is ‘semi-automatic’ in nature.” Id. “Although a precise formula cannot be proposed for determining when the behavior may become so consistent as to rise to the level of habit, ‘adequacy of sampling and uniformity of response’ are controlling considerations.” Reyes v. Missouri Pac. R.R. Co., 589 F.2d 791, 795 (5th Cir.1979) (quoting Notes of Advisory Committee). “It is only when examples offered to establish such pattern of conduct or habit are numerous enough to base an inference of systematic conduct, that examples are admissible.” Loughan v. Firestone Tire & Rubber Co., 749 F.2d 1519, 1524 (11th Cir.1985) (internal quotation marks and citation omitted). These principles have been applied to exclude evidence of conduct that falls short of the definition of habit. One such case is Becker v. ARCO Chem. Co., 207 F.3d 176 (3d Cir.2000), an age discrimination case. In that case, defendant offered a legitimate non-discriminatory reason for its termination of Becker. To rebut that defense, Becker offered evidence that ARCO had previously fabricated evidence of a legitimate reason for terminating one of Becker’s co-employees, Linwood Seaver. See id. at 183, 185. Specifically, Becker testified that two of his supervisors solicited his assistance in fabricating evidence of Seaver’s poor performance on a particular project to facilitate Seaver’s termination. See id. at 185. “[TJhe district court found Becker’s testimony admissible under Rule 404(b) because it was evidence of a scheme or plan of fabricating reasons used by the deci-sionmaker in terminating employees.” Id. at 189 (internal quotation marks and citation omitted). The appellate court rejected this reasoning. See id. at 201 (“[WJe hold that standing alone," }, { "docid": "23424302", "title": "", "text": "was admitted to show ARCO’s “scheme or plan,” which the district court described alternatively as ARCO’s “pattern,” “practice,” and “modus operandi,” we must pinpoint the evidential fact that Becker sought to prove from his testimony in that regard. From that initial inquiry, we must determine if the evidence, in the form that it was admitted at trial, satisfied the criteria necessary for admitting Rule 404(b) evidence on the theory that it establishes circumstantially ARCO’s plan or scheme. As to the initial question, i.e., the evidential fact .that' Becker sought to establish in admitting the testimony,, Becker contends that the evidence was admitted to prove ARCO’s intent. Given our discussion above, this argument obviously is unavailing. To reiterate, the Seaver evidence cannot be admitted based on the theory that it was . relevant to prove the ultimate disputed issue in the case, given the circumstance that the evidence would establish ARCO’s intent to discriminate against Becker only if the jury drew the inference that in terminating him, ARCO acted in conformity with its purported prior conduct in terminating Seaver. As we have indicated, notwithstanding Becker’s contrary arguments, the Seaver evidence could be material only to establish circumstantially that ARCO fabricated the performance deficiencies and customer complaints that allegedly formed the basis for Becker’s termination. The question, then, is whether and in what circumstances evidence concerning a defendant’s prior conduct is admissible under Rule'404(b) as proof of the defendant’s plan, where the evidence is admitted for the specific purpose of establishing that the defendant committed a subsequent act that is disputed in the case. Commentators indicate that evidence tending to establish a defendant’s plan or scheme under Rule 404(b) may be admit ted for the purpose of proving the defendant’s commission of the subsequent act itself where that issue is disputed. See, e.g., 1 John William Strong, ed., McCormick on Evidence S 190, at 800-01 (4th ed. 1992) (“McCormick”) (“Each crime should be an integral part of an over-arching plan explicitly conceived and executed by the defendant or his confederates. This will be relevant as showing motive, and hence the doing of" }, { "docid": "3336049", "title": "", "text": "R. Evid. 404(b). “Rule 404(b) thus prohibits the admission of other acts evidence for the purpose of showing that an individual has a propensity or disposition to act in a particular manner.” Ansell v. Green Acres Contracting Co., Inc., 347 F.3d 515, 520 (3d Cir. 2003). “Such evidence may, however, be admitted if offered for a proper purpose apart from showing that the individual is a person of a certain character.” Id. To be admissible under Rule 404(b), other acts evidence must meet the following, four part test: (1) the evidence must have a proper purpose under Rule 404(b); (2) it must be relevant under Rule 402; (3) its probative value must -outweigh its prejudicial effect under Rule 403; and (4) the district court must charge the jury to consider the evidence only for the limited purpose for which it was admitted. Becker v. ARCO Chem. Co., 207 F.3d 176, 189 (3d Cir. 2000) (quotations omitted). .“Evidence of an employer’s conduct towards other employees has long been held relevant and admissible to show that an employer’s proffered justification is pretext.” Ansell, 347 F.3d at 521, citing McDonnell Douglas Corp., 411 U.S. at 804, 93 S.Ct. 1817 (stating that evidence that employees of another race were treated differently from the plaintiff under comparable circumstances is “[especially relevant” to whether employer’s proffered explanation is pretextual); Becker v. ARCO Chemical Co., 207 F.3d 176, 194 n.8 (3d Cir. 2000) (citing cases holding that,, “as a general rule, evidence of a defendant’s pri- or discriminatory treatment of a plaintiff or other employees is relevant and admissible under the Federal Rules of Evidence to establish whether a defendant’s employment action against an employee was motivated by invidious discrimination”). Indeed, evidence regarding an employer’s “culture” in which it makes employment decisions may constitute circumstantial evidence of discrimination. Brewer v. Quaker State Oil Ref. Corp., 72 F.3d 326, 333 (3d Cir. 1995). Therefore, a plaintiff alleging some form of employment discrimination may challenge an employer’s explanation by showing “that the employer treated other, similarly situated persons out of his protected class more favorably, or that the employer" }, { "docid": "23424290", "title": "", "text": "performed satisfactorily and that ARCO fabricated reasons in order to facilitate his lawful termination. It is in this sense, then, that the Seaver evidence arguably is relevant logically to the issue of ARCO’s discriminatory intent towards Becker. Nevertheless, while Becker may have demonstrated that the evidence is relevant logically to the issue of ARCO’s intent, the inquiry under Rule 404(b) requires a more searching analysis which also focuses on the chain of inferences supporting the proffered theory of logical relevance. In Morley, we recently reiterated the self-evident proposition that “a proponent’s incantation of the proper uses of [Rule 404(b) evidence] ... does not magically transform inadmissible evidence into admissible evidence.” Morley, 199 F.3d at 133. Indeed, when a proponent of Rule 404(b) evidence contends that it is both relevant and admissible for a proper purpose, “the proponent must clearly articulate how that evidence fits into a chain of logical inferences, no link of which may be the inference that the defendant has the propensity to commit the crime charged.” See id. (internal quotation marks omitted); Himelwright, 42 F.3d at 782 (citing United States v. Jemal, 26 F.3d 1267, 1272 (3d Cir.1994)); Government of the Virgin Islands v. Pinney, 967 F.2d 912, 915 (3d Cir.1992) (“In order ... to admit evidence under Rule 404(b), a court must be able to articulate a way in which the tendered evidence logically tends to establish or refute a material fact in issue, and that chain of logic must include no link involving an inference that a bad person is disposed to do bad acts.”). The Seaver evidence fails this test because the logical connection between ARCO’s alleged “fabrication” of performance problems in relation to Seaver’s dismissal and its purported conduct in terminating Becker is the inference that ARCO was likely to have fabricated customer complaints and other performance problems in Becker’s case merely because ARCO previously engaged in a similar impropriety in facilitating Seaver’s dismissal. The problem is, as we recognized in Morley, “this is the very evil that Rule 404(b) seeks to prevent.” See Morley, 199 F.3d at 134. Put another way, the" }, { "docid": "23399394", "title": "", "text": "in its closing argument, counsel for defendants stated: “If [Schiff] didn’t want guys on his crew who were over forty, why did he talk to Tony Beddingfield to stay on? [D]oes it show an intent to create a youth movement? Does it show an intent to design this crew that’s all young men or women? No.” The evidence offered by both defendants and Ansell was not predicated upon an inference that Schiff had a propensity to act in a certain way. Indeed, Schiffs actions were never in dispute. Rather, the sole question was Schiffs intent when he acted, or, more precisely, whether the reason offered by Schiff was pretextual. See, e.g., Heyne, 69 F.3d at 1480 (holding that evidence of employer’s sexual harassment of other employees was inadmissible to prove that plaintiff herself was harassed, but was admissible to show employer’s motive or intent in discharging plaintiff). The principal case on which Ansell relies illustrates this distinction. In Becker, an ADEA plaintiff introduced evidence that his employer had previously asked him to fabricate a reason to terminate another worker. 207 F.3d at 194. We held that such evidence was inadmissible to show that the employer subsequently fabricated a reason to terminate the plaintiff. The evidence offered in Becker, therefore, was not offered to show intent, but to show action in conformity with the prior acts-the fabrication of evidence to support a termination. Nevertheless, we were careful to note that plaintiffs evidence might be admissible under Rule 404(b) to show discriminatory intent. Id. at 194 n. 8 (citing cases for the proposition that “evidence of a defendant’s prior discriminatory treatment of a plaintiff or other employee is relevant and admissible” to establish defendant’s motive). The evidence in Becker did not, however, establish the other employee’s age, and therefore was not proba tive of the employer’s intent to discriminate against workers in the protected class. Id. at 194 n. 8. There, the evidence was probative only if the jury were to conclude that, in conformity with a past act, the employer fabricated a reason to terminate the plaintiff. Under Rule 404(b), such" }, { "docid": "23424289", "title": "", "text": "by fabricating performance problems to justify its predetermined decision to fire him. See Appellee Becker’s Br. at 40. Becker contends, therefore, that the evidence was relevant logically to a disputed issue and admitted for a proper purpose under Rule 404(b)— to establish the discriminator’s intent. In support of this argument, Becker asserts that similar evidence of past discriminatory treatment of other employees has been admitted in employment discrimination suits for that same purpose. To be sure, our precedents teach that in an employment discrimination case in which the employee’s proof of intentional discrimination is comprised of circumstantial evidence, the trier of fact may infer an employer’s discriminatory intent where the plaintiffs evidence renders the employer’s asserted nondiscriminatory reasons for the plaintiffs discharge weak, implausible, inconsistent or contradictory. See Fuentes v. Perskie, 32 F.3d 759, 764 (3d Cir.1994); see also Sheridan v. E.I. DuPont de Nemours and Co., 100 F.3d 1061, 1067 (3d Cir.1996) (en banc). Arguably, the Seaver evidence rendered ARCO’s purported nondiscriminatory reasons weak or implausible, because it made it more likely that Becker performed satisfactorily and that ARCO fabricated reasons in order to facilitate his lawful termination. It is in this sense, then, that the Seaver evidence arguably is relevant logically to the issue of ARCO’s discriminatory intent towards Becker. Nevertheless, while Becker may have demonstrated that the evidence is relevant logically to the issue of ARCO’s intent, the inquiry under Rule 404(b) requires a more searching analysis which also focuses on the chain of inferences supporting the proffered theory of logical relevance. In Morley, we recently reiterated the self-evident proposition that “a proponent’s incantation of the proper uses of [Rule 404(b) evidence] ... does not magically transform inadmissible evidence into admissible evidence.” Morley, 199 F.3d at 133. Indeed, when a proponent of Rule 404(b) evidence contends that it is both relevant and admissible for a proper purpose, “the proponent must clearly articulate how that evidence fits into a chain of logical inferences, no link of which may be the inference that the defendant has the propensity to commit the crime charged.” See id. (internal quotation marks omitted);" }, { "docid": "23424299", "title": "", "text": "considered to be the logical relevance of the Seaver evidence to the issue of ARCO’s intent occurred during the court’s colloquy with counsel on this point, but that the counsel’s proffered justification for admitting the evidence amounted to little more than a “mantra-like recitation of the provisions of Rule 404(b).” Morley, 199 F.3d at 137; see app. at 3227 (“[Actually we were under 404(b), ‘It may however be admissible for other purposes such as motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.’ ”) (quoting Fed.R.Evid. 404(b)). Merely citing the relevant Rule of Evidence, however, is of little assistance to either the trial or appellate court in determining the difficult issue presented when confronted with a proffer of Rule 404(b) evidence, and it falls woefully short of the proponent’s obligation when offering such evidence purportedly for a non-character purpose. See Morley, 199 F.3d at 137. We also find it significant that in this appeal Becker has failed to present an alternative chain of inferences by which the Seaver evidence logically could be connected to the issue of ARCO’s intent, with no link predicated on an inference concerning ARCO’s propensity to act in a certain way. Of course, this is not surprising given the record presented here and Becker’s theory of the case. Compare United States v. Dise, 763 F.2d 586, 592-93 (3d Cir.1985) (defendant’s prior similar incidents of misconduct were relevant to establish his intent to injure inmates where defendant contended that he acted only to maintain safety or to prevent harm). Indeed, our review of the record confirms that Becker grounded his case against ARCO largely on Ms assertion that the customer complaints and alleged performance problems were pretextual. Yet only if the jury were to draw the inference that in terminating Becker, ARCO must have fabricated his alleged performance deficiencies, would the Seaver evidence have established circumstantially ARCO’s intent to discriminate against Becker. As we observed in Morley, this sort of character-based inference “is the very evil that Rule 404(b) seeks to prevent.” Morley, 199 F.3d at 134. Therefore, we hold that the district" }, { "docid": "23424285", "title": "", "text": "commit crime.”) (internal quotation marks omitted). 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. ... We have adopted a four-prong test to determine the admissibility of Rule 404(b) evidence: “(1) the evidence must have a proper purpose under Rule 404(b); (2) it must be relevant under Rule 402; (3) its probative value must outweigh its prejudicial effect under Rule 403; and (4) the [district] court must charge the jury to consider the evidence only for the limited purpose for which it was admitted.” See J & R Ice Cream, 31 F.3d at 1268 (quoting United States v. Console, 13 F.3d 641, 659 (3d Cir.1993) (quoting United States v. Sampson, 980 F.2d 883, 886 (3d Cir.1992))); see also Himelwright, 42 F.3d at 781 (stating that for “other crimes” evidence to be admitted, it must be relevant logically, under Rules 404(b) and 402, to any issue other than the defendant’s propensity to commit the act in issue, and its probative value must outweigh its prejudicial effect). In denying ARCO’s motion for a new trial, the district court found Becker’s testimony admissible under Rule 404(b) because it was evidence of a “scheme or plan of fabricating reasons used by the deci-sionmaker in terminating employees.” Becker I, 15 F.Supp.2d at 614. The district court also reasoned that “evidence of an instance in which a pretext was fabricated in connection with the termination of another employee, could also be relevant to the issue of whether Mr. Victor, the decision maker in this case, acted with discriminatory intent.” Id. Reading these passages in conjunction with the court’s statements on the record during the trial, we understand that the district court predicated its admissibility ruling on its conclusion that the Seaver evidence showed the plan, pattern or practice ARCO utilized in terminating its employees, which in turn was relevant to determining a" } ]

[ { "docid": "22549982", "title": "", "text": "land in that. State.” 138 U. S. 242, 250. In the recent case of Hardin v. Jordan, (1891,) 140 U. S. 371, in which there was a difference of opinion upon the question whether a survey and patent of the United States, bounded by a lake which was not navigable, in the State of Illinois, was limited by the margin, or extended to the centre of the lake, all the justices agreed that the question must be determined by the law of Illinois. Mr. Justice Bradley, speaking for the majority of the court, and referring to many cases already cited above, said: “ \"With regard to grants of the government for lands bordering on tide water, it has been distinctly settled that they only extend to high water mark, and that the’ title to the shore and lands under water in front of lands so granted enures to the State within which they are situated, if a State has been organized and established there. Such title to the shore and lands under water is regarded as incidental to the sovereignty of the State — a portion of the royalties belonging thereto, and held in trust for the public purposes of navigation and fishery — and cannot be retained or granted out to individuals by the United States. Such title being in the State, the lands are subject to state regulation and control, under the condition, however, of not interfering with the regulations which may be made by Congress with regard to public navigation and commerce. The State may even dispose of the usufruct of such lands, as is frequently done by leasing oyster beds in them, and granting fisheries in particular localities; also, by the reclamation of submerged flats, and the erection of wharves and piers and other adventitious aids of commerce. Sometimes large areas so reclaimed are occupied by cities, and are put to other public or private uses, state control and ownership therein being supreme, subject only to the paramount authority of Congress in making regulations of commerce, and in subjecting the lands to the necessities and uses" } ]

[ { "docid": "14798869", "title": "", "text": "Arizona. The Court held at 597-598, 83 S.Ct. at 1496: Arizona’s contention that the Federal Government had no power, after Arizona became a State, to reserve waters for the use and benefit of federally reserved lands rests largely upon statements in Pollard’s Lessee v. Hagan, 3 How. 212, [11 L.Ed. 565] (1845) and Shively v. Bowlby, 152 U.S. 1, [14 S.Ct. 548, 38 L.Ed. 331] (1894). Those cases and others that followed them gave rise to the doctrine that lands underlying navigable waters within territory acquired by the Government are held in trust for future States and that title to such lands is automatically vested in the States upon admission to the Union. But those cases involved only the shores of and lands beneath navigable waters. They do not determine the problem before us and cannot be accepted as limiting the broad powers of the United States to regulate navigable waters under the Commerce Clause and to regulate government lands under Art. IV, § 3, of the Constitution. We have no doubt about the power of the United States under these clauses to reserve water rights for its reservations and its property. From the statement limiting Pollard’s Lessee and Shively as relevant only to title to the shores and beds of navigable waters, it might be inferred that title to navigable waters is not held by the state. But see Port of Seattle v. Oregon & W. R.R., 255 U.S. 56 at 63, 41 S.Ct. 237, 65 L.Ed. 500 (1921); Donnelly v. United States, 228 U.S. 243 at 260, 33 S.Ct. 449, 57 L.Ed. 820 (1913). But the context of that statement shows that title was not an issue in Arizona ; rather the issue was the federal government’s power to regulate and use navigable waters for a federal reservation. Thus a holding in this case that the federal government had the authority to grant exclusive use of the Kagagon Slough to the Indians, but did not have the authority to divest the state of its title to that waterway without compensation, is consistent with the Arizona decision. . Defendant" }, { "docid": "3064048", "title": "", "text": "further that in allotting the Yankton Sioux Reservation and ceding the unallotted lands back to the United States, that the Tribe, as well as the United States, intended to terminate tribal ownership of the lakebed. [Yankton Sioux Tribe of Indians v. Nelson, 521 F.Supp. 463, 464-65 (D.S.D.1981).] The court ruled that the Tribe retained ownership of the bed of Lake Andes by virtue of the 1858 Treaty and that the Tribe had not relinquished title to the lakebed during the allotment process. Id. at 466. The district court determined that Montana v. United States, 450 U.S. 544, 101 S.Ct. 1245, 67 L.Ed.2d 493 (1981), and United States v. Holt State Bank, 270 U.S. 49, 46 S.Ct. 197, 70 L.Ed. 465 (1926), did not control this controversy because of differences in treaty language and because, here, the Tribe held aboriginal title to the lakebed, which the United States had never expressly extinguished. In granting summary judgment for the Tribe, the district court did not expressly rule on the underlying question of navigability. The parties, however, agree that the district court’s decision rested on an assumption that Lake Andes was a navigable lake at the relevant times. II. Discussion. On appeal, the Tribe, the State, and the County all urge this court to reach the merits of this case. The State raises three principal arguments to refute the Tribe’s claim of ownership of the lakebed: (1) if Lake Andes was navigable at the creation of the Yankton Sioux Reservation by the Treaty of 1858, then the United States held the lakebed in trust for the future state, and title to the lakebed passed to the State of South Dakota upon its admission to the Union in 1889, under the equal footings doctrine, Montana v. United States, 450 U.S. 544, 101 S.Ct. 1245, 67 L.Ed.2d 493 (1981); (2) the Tribe extinguished any interest it held in the lakebed when it ceded all unallotted lands on the reservation to the United States in 1892; and (3) if the lake was non-navigable at the signing of the 1858 Treaty, the 1892 Cession Agreement served to" }, { "docid": "14798744", "title": "", "text": "v. United States, 248 U.S. 78, 39 S.Ct. 40, 63 L.Ed. 138 (1918); United States v. White, 508 F.2d 453 (8th Cir. 1974); see also Menominee Tribe v. United States, 391 U.S. 404, 88 S.Ct. 1705, 20 L.Ed.2d 697 (1968). In the present case, the Indians were not confined by the terms of the 1842 trea ty to an area smaller than the one they occupied at the time of the treaty; they reasonably would have expected that the miners, loggers and soldiers who were settling in the territory would hunt and fish for their food; and with the abundance of fish and game in northern Wisconsin, it is unlikely that either the Indians or the government would have anticipated that it would be necessary for the Indians to have exclusive fishing and hunting rights in order to maintain themselves in their vast territory. I conclude that the right o$ hunting and “other usual privileges of occupancy” which the Indians reserved in the treaty of 1842 were rights held in common with white persons in the area. Thus, the bed and waters of the Kagagon Slough were not reserved exclusively for the Chippewa by the 1842 treaty, and title to the bed of that navigable waterway passed to Wisconsin upon admission as a state in 1848. Defendant argues further that since the State of Wisconsin acquired title to the Kagagon Slough in 1848, any purported grant of rights in that waterway to the Chippewa by the 1854 treaty was “subject to the prior and paramount rights of ownership and/or the power to regulate the navigable waters which the State of Wisconsin acquired. . .” Plaintiff responds that the federal government had the treaty power in 1854 to grant the Chippewa the right to exclusive use of the navigable waterways in their reservation. While it is likely that the federal government did have the treaty authority to grant the Chippewa exclusive use of the waterways, it appears that the particular language of § 1165 upon which the amended information rests requires that title to the land upon which the alleged trespass" }, { "docid": "14798732", "title": "", "text": "as trustee for the public; and that any purported grant of navigable waterways to the Chippewa in 1854 by the United States was without authority and a nullity. Plaintiff responds with two contentions: first, that the Chippewa retained beneficial ownership of the land ceded to the United States by the treaty of 1842 and thus the State did not take title to the waterway at issue upon statehood; second, that even if the State did acquire title to the waterway at issue, the United States had sufficient treaty authority to grant exclusive use of the waterway to the Chippewa in 1854. Wisconsin entered the Union “on an equal footing with the original States,” and the original States possessed “. . . the absolute right to all their navigable waters and the soils under them, for their own common use, subject only to the rights since surrendered by the constitution to the general government.” Martin v. Waddell, 41 U.S. (16 Ped.) 366, at 410, 10 L.Ed. 997 (1842). Assuming that the Chippewa ceded all their rights in the navigable waterways within the boundaries of the ceded area to the United States by the 1842 treaty, it is well settled that the government’s title to the beds of navigable waterways was held in trust for the future State, and upon statehood passed to Wisconsin in trust for the public. Borax, Ltd. v. Los Angeles, 296 U.S. 10, 56 S.Ct. 23, 80 L.Ed. 9 (1935); Donnelly v. United States, 228 U.S. 243, 33 S.Ct. 449, 57 L.Ed. 820 (1913); Shively v. Bowlby, 152 U.S. 1 at 49, 14 S.Ct. 548, 38 L.Ed. 331 (1894). This principle was explained in United States v. Holt State Bank, 270 U.S. 49, 46 S.Ct. 197, 70 L.Ed. 465 (1926). The United States had brought suit to clear title to the bed of a lake which had been a navigable body of water in an Indian reservation. After the reservation was terminated and the lands around the lake sold to various settlers, the lake was drained. The issue was whether the bed of the lake belonged to the" }, { "docid": "679149", "title": "", "text": "marina and the bay is unobstructed, the marina waters are subject to the ebb and flow of the tides. CONCLUSIONS OF LAW I. Introduction The concept of “navigable waters” grew out of the “public common of piscary,” i. e., the right of the common people of England to travel upon the waters and to fish them. Under English common law, the Crown owned the beds of all navigable waters affected by the ebb and flow of the tide. Martin v. Waddell’s Lessee, 41 U.S. (16 Pet.) 367, 411-13, 10 L.Ed. 997 (1842). When the American Revolution took place, the states succeeded to all rights and powers of the Crown. Thus they held title to the beds and control over public use of all navigable waters within their respective boundaries. Upon ratification of the Constitution, jurisdiction over the surface of navigable waters used in interstate commerce passed to the federal government under the Commerce Clause. Jurisdiction over the surface of navigable waters lying wholly within a single state, and not connecting with other waters to form a navigable highway of interstate commerce, remained with the situs state. Id. at 410, 10 L.Ed. 997. Subject to exceptions to be discussed below, the same federal-state rights of jurisdiction and title generally applies to states admitted to the Union after the original 13, the underlying theory being that the United States acquired lands and held them in trust for future states so .that they could be admitted on an equal footing with the original states. Pollard’s Lessee v. Hagan, 44 U.S. (3 How.) 212, 11 L.Ed. 565 (1845). The term “navigability” has many legally distinct applications. (1) It may determine title to river and lake beds. (2) It has been the touchstone of Congressional jurisdiction over waters via the Commerce Clause. (3) It embodies the navigation servitude, a modern declaration of the common law right of public access to the surface of waters. In addition, (4) admiralty jurisdiction in federal courts flows from the general concept of navigability. The use of the term “navigability” for these four purposes, however, does not necessarily mean that" }, { "docid": "14798736", "title": "", "text": "States v. Pollman, 364 F.Supp. 995 (D.Mont.1973). The propriety of this inquiry is indicated by the Supreme Court’s analysis of the relevant treaty in Holt, supra. In determining that the treaty did not constitute a disposal of the waterbed to the Indians, the court placed considerable reliance upon the fact that there was no attempted exclusion of non-Indians from the navigable waters, but that the Indians’ right was held only in common with the right of white settlers to use the waters. Additionally, an inquiry into exclusivity of use is consistent with the general principle that the federal government cannot hold the same property simultaneously in trust for two conflicting purposes. See also Bennett County, South Dakota v. United States, 394 F.2d 8 (8th Cir. 1968), in which land set aside for exclusive use of the Indian tribe was held not to be “public land” upon which the state could build a highway. Accordingly, I must examine the 1842 treaty to determine whether the Chippewa reserved for themselves exclusive use of the navigable waterways in the ceded area. There is no specific statement in the 1842 treaty about the Indians’ rights in or to the navigable waterways which were within the boundaries of the subject area of the treaty. Based upon language in Holt State Bank, defendant argues that in the absence of a clear indication that the title to the waters was placed in the Indians, such an inference should not be made. In Holt, the court stated that “disposals [of navigable waters] by the United States during the territorial period are not lightly to be inferred, and should not be regarded as intended unless the intention was definitely declared or otherwise made very plain.” 270 U.S. at 55,46 S.Ct. at 199. However, the Holt standard is drawn from Shively, supra, a case involving a grant of property rights to a private person, and the standard is incompatible with long established and well recognized rules of construction for Indian treaties. In Worcester v. Georgia, 31 U.S. (6 Pet.) 515, 8 L.Ed. 483 (1832), a rule of liberal construction in" }, { "docid": "15697953", "title": "", "text": "the right to file suit independently of the United States, where the United States holds the land in trust, and the Indian Tribe is the beneficial owner of the property. Poafpybitty v. Skelly Oil Co., 390 U.S. 365, 88 S.Ct. 982, 19 L.Ed.2d 1238; Capitan Grande Band of Mission Indians v. Helix Irrigation District, 514 F.2d 465 (9th Cir.), cert. denied. 4. The Plaintiff Puyallup Tribe is the political successor in interest to the Puyallup Indians who signed the Treaty of Medicine Creek (10 Stat. 1132, December 26, 1854). United States v. Washington, 384 F.Supp. 312, 370 (W.D.Wash.1974), aff’d sub nom. Washington v. Fishing Vessel Ass’n., 443 U.S. 658, 99 S.Ct. 3055, 61 L.Ed.2d 823 (1979). 5. As a general principle, the Federal Government holds lands under navigable waters in trust for future states, to grant to such states when they enter the Union, and there is a strong presumption against conveyance of such lands by the United States. Montana v. U. S., 450 U.S. at 551-558, 101 S.Ct. at 1251-54, 67 L.Ed.2d at 502-505, United States v. Oregon, 295 U.S. at 14, 55 S.Ct. at 615. 6. This court cannot infer such a conveyance “unless the intention was definitely declared or otherwise made plain”. United States v. Holt State Bank, 270 U.S. 49, at 55, 46 S.Ct. 197, at 199, 70 L.Ed. 465. Montana v. U. S., supra. It is established, however, that congress may sometimes convey lands below the high water mark of a navigable water. Shively v. Bowlby, 152 U.S. 1, 48, 14 S.Ct. 548, 566, 38 L.Ed. 331; Montana v. U.S., supra. 7. But, because control over the property underlying navigable waters is so strongly identified with the sovereign power of government, United States v. Oregon, supra, it will not be held that the United States has conveyed such land “except because of some special duty or exigency”. United States v. Holt, 270 U.S. 49, 46 S.Ct. 197, 70 L.Ed. 465 supra. 8. Whether a grant or reservation included the bed of a navigable river depends on whether there was demonstrated an intention to do so." }, { "docid": "1216471", "title": "", "text": "397 U.S. 620, 90 S.Ct. 1328, 25 L.Ed.2d 615 (1970), the Supreme Court held, contrary to Oklahoma’s claims, that the Indian parties to the suit did receive title to the land underlying the navigable portion of the Arkansas River from its confluence with the Grand River to the Oklahoma-Arkansas border. Id. at 635-36, 90 S.Ct. at 1336-37. To resolve the question of title to the riverbed, the Supreme Court looked to the treaty language itself and to the circumstances surrounding the creation of the reservation. One of the distinguishing factors was the removal of the Indians from their aboriginal lands and their repeated relocation further west. That factor, plus the treaty language that “no part of the land granted to them shall ever be embraced in any Territory or State” compelled the Supreme Court to conclude that the United States intended to convey the bed of the Arkansas River to the Indians involved. In United States v. Holt State Bank, 270 U.S. 49, 46 S.Ct. 197, 70 L.Ed. 465 (1926), the Supreme Court held that title to Mud Lake, a navigable body of water, did pass to Minnesota upon that state’s admission to the Union. Aboriginal title to the land in question was surrendered to the United States prior to the creation of the reservation. Holt State Bank is well known as one of the primary sources for the proposition that “disposals of land by the United States during the territorial period are not lightly inferred and should not be regarded as intended unless the intention was definitely declared or otherwise made very plain.” Id. at 55, 46 S.Ct. at 199. One important factor is present in each of the above cases. In each case the United States had extinguished the Indian right of occupancy prior to the creation of the respective Indian reservations. This Court has been guided not only by the precedents cited above, but also by the so-called canons of construction of Indian Law. Although treaty rights are sometimes clearly expressed in the document, frequently there is some doubt as to the rights created. The courts have" }, { "docid": "120087", "title": "", "text": "did not begin until approximately 1810. See Appellee’s Brief at 4. Hence, to the extent that the district court held the Tribe’s aboriginal title vested before the United States’ sovereign title, we conclude that finding is clearly erroneous. The Tribe claims, however, that aboriginal title can ripen after sovereign title attaches and that the Tribe had been in the area long enough for its aboriginal title to attach by the time of the 1858 treaty. See Turtle Mountain Band of Chippewa Indians v. United States, 203 Ct.Cl. 426, 490 F.2d 935, 941 (1974). Even assuming that aboriginal title can ever attach to the bed of navigable waters, we hold that, when sovereign title is in place and operation of the equal footing doctrine begins before any claim of aboriginal title has ripened, the state’s claim of ownership is preeminent unless a recognized exception to the equal footing doctrine is applicable. The only recognized exception to the equal footing doctrine is a congressional conveyance of the land underlying navigable waters. The intent to convey, however, must either be explicit or clearly inferrable from the circumstances. See Montana, 450 U.S. at 551-52, 101 S.Ct. at 1251; United States v. Holt State Bank, 270 U.S. 49, 54-55, 46 S.Ct. 197, 198-99, 70 L.Ed. 465 (1926). The Tribe does not claim any congressional conveyance of the lake bed, either explicitly or by inference. Accordingly, we conclude that title to the lake bed passed to South Dakota in 1889 under the equal footing doctrine. Our resolution of this issue makes it unnecessary for us to address the other claims raised by the parties. The judgment of the district court is reversed." }, { "docid": "10773403", "title": "", "text": "reservation, United States v. Romaine, 255 F. 253, 259 (9 Cir. 1919) relying upon Shively v. Bowlby, supra; Organized Village of Kake v. Egan, 174 F.Supp. 500, 503 (D. Alaska 1959); and that whether or not Congress has done so is a matter of Congressional intent. Choctaw Nation v. Oklahoma, 397 U.S. 620, 633, 90 S.Ct. 1328, 25 L.Ed.2d 615 (1970). The defendant relies upon United States v. Holt State Bank, 270 U.S. 49, 57-58, 46 S.Ct. 197, 70 L.Ed. 465 (1926) which found that the title to the bed of Mud Lake, a navigable waterway within the Red Lake Reservation, had not been granted by treaty or by Act of Congress to the Chippewa Indians, and so title passed to the state of Minnesota upon her entry into the Union. The Court recognized, however, that where the intent is clear (and it may not lightly be inferred) the United States may by treaty or Act of Congress grant Indians title in river beds. In other words, Holt did not involve the express treaty provisions which Rochester found determinative with respect to the ownership of the bed of the south half of Flathead Lake. Rochester must be held to be controlling in this case. Sufficiency of the Information The defendant argues that the information fails to charge an offense containing the essential elements of the statutory crime; charges a factual impossibility in designating certain lands in the bottom of Flathead Lake as having been trespassed upon by the defendant; and erroneously charges that the part of Flathead Lake described as a part of the Flathead Indian Reservation is land within the meaning of 18 U.S.C. § 1165. Elements of the Crime It is true that an information must expressly set forth the elements of the offense. It is also true that an essential element of this offense is a trespass upon land. State ex rel. Nepstad v. Danielson, 149 Mont. 438, 441, 427 P.2d 689 (1967). “Land” The defendant argues that the surface of Flathead Lake is not “land” within the meaning of 18 U.S.C. § 1165, so as to" }, { "docid": "14798745", "title": "", "text": "the area. Thus, the bed and waters of the Kagagon Slough were not reserved exclusively for the Chippewa by the 1842 treaty, and title to the bed of that navigable waterway passed to Wisconsin upon admission as a state in 1848. Defendant argues further that since the State of Wisconsin acquired title to the Kagagon Slough in 1848, any purported grant of rights in that waterway to the Chippewa by the 1854 treaty was “subject to the prior and paramount rights of ownership and/or the power to regulate the navigable waters which the State of Wisconsin acquired. . .” Plaintiff responds that the federal government had the treaty power in 1854 to grant the Chippewa the right to exclusive use of the navigable waterways in their reservation. While it is likely that the federal government did have the treaty authority to grant the Chippewa exclusive use of the waterways, it appears that the particular language of § 1165 upon which the amended information rests requires that title to the land upon which the alleged trespass was committed be vested in the United States. Section 1165 provides for several possible combinations of ownership of Indian land. The amended information in this case alleges one of them: “land that belongs to any Indian tribe . held by the United States in trust.” The phrase “belongs to any Indian tribe” suggests that the Indians should hold legal title; but the phrase “held by the United States in trust” suggests that the United States should hold legal title, with beneficial ownership by the Indians. While the statute is inartfully drawn, I construe it as requiring, as an element of the offense, that the United States hold legal title to the land at issue in trust for the Indians. The interpretation of § 1165 as requiring that legal title be in the United States is supported by the fact that § 1165 is part of a chapter of statutes which begins with a relatively broad definition of “Indian country.” This definition applies to all but two sections of the chapter. This definition of “Indian country”" }, { "docid": "14798734", "title": "", "text": "state or the federal government. The court held (270 U.S. at 54-55, 46 S.Ct. at 198-199): It is settled law in this country that lands underlying navigable waters within a state belong to the state in its sovereign capacity . . . subject to the qualification that where the United States, after acquiring a territory and before the creation of the state, has granted rights in such lands . . . such rights are not cut off by the subsequent creation of the state, but remain unimpaired, and the rights which otherwise would pass to the state in virtue of its admission into the Union are restricted or qualified accordingly. . . . The state of Minnesota was admitted to the Union in 1858 . . and under the constitutional principle of equality among the several states, the title to the bed of Mud Lake then passed to the state, if the lake was navigable, and if the bed had not already been disposed of by the United States. The “disposal” of a navigable waterway which prevents a state from obtaining fee simple title to the water and the land beneath it may either be a transfer of legal ownership, such as the fee simple title given to the Indians in Choctaw Nation v. Oklahoma, 397 U.S. 620, 90 S.Ct. 1328, 25 L.Ed.2d 615 (1970), or a transfer of beneficial ownership. In United States v. Finch, 548 F.2d 822, at 827 (9th Cir. 1976), for example, the court held: The United States either transferred beneficial ownership of the bed to the Crow Tribe by the treaties of 1851 and 1868 or retained ownership of the bed as public lands, which passed to the State of Montana upon its admission to the Union. To determine whether beneficial ownership of the lands has been transferred, the Finch court examined the treaties to determine whether they had reserved the riverbed for the exclusive use of the tribe. A similar inquiry into the exclusivity of the Indians’ use was made in Montana Power Co. v. Rochester, 127 F.2d 189 (9th Cir. 1942), and United" }, { "docid": "22992302", "title": "", "text": "Courte Oreilles reservation is within the ceded territory. . See Appendix A to district court disposition, 464 F.Supp. 1316, 1362-63 (W.D.Wis.1978). . Although Montana v. United States, 450 U.S. 544, 101 S.Ct. 1245, 67 L.Ed.2d 493 (1981), deviated from this rule of construction, Montana was controlled by the long established presumption against conveyance of title to the bed of a navigable water, United States v. Holt State Bank, 270 U.S. 49, 46 S.Ct. 197, 70 L.Ed. 465 (1926). The concerns critical to the Montana Court, state sovereignty and title to a navigable water bed, are not presented in the LCO case. . Other courts have recognized that “the other usual privileges of occupancy” include the right to fish and engage in traditional gathering activities. E.g., United States v. Michigan, 471 F.Supp. 192 (W.D.Mich. 1979), aff’d in relevant part, 653 F.2d 277 (6th Cir.), cert. denied, 454 U.S. 1124, 102 S.Ct. 971, 71 L.Ed.2d 110 (1981); People v. LeBlanc, 399 Mich. 31, 248 N.W.2d 199 (1976). That proposition is not challenged by the defendants in this case. . The defendants also obstructed the Indians’ fishing, assuming the Indians had been able to reach the river, by the use of “fishing-wheels.” The Winans Court held that such obstruction was impermissible. 198 U.S. at 384,25 S.Ct. at 665. . We do not agree with the defendants’ suggestion, however, that the fact Menominee involved rights pursuant to a treaty granting a reservation makes that case inapposite to the present appeal. The rights of use in that case were indeed originally tied to treaty-recognized title. Nonetheless, the usufructuary rights have independent significance. . As we discuss in more detail in Section V(B), infra, this finding is mere dicta in light of the actual disposition in the Mole Lake case. The Mole Lake court did not use the term “permissive occupation.” . The defendants attempt to minimize the relevance of the Michigan case by stating that the Sixth Circuit rejected the rationale of the district court and followed instead the reasoning of the LeBlanc court. This argument is at best irrelevant and at worst tends to" }, { "docid": "10773402", "title": "", "text": "Treaty] the United States undertook to hold title to the reserved area, including the bed of the southerly half of the lake [Flathead Lake], in trust for the confederated tribes.” Rochester has been followed by this and other courts in subsequent decisions. Defendant argues, however, that while the south half of Flathead Lake is within the exterior boundaries of the Flathead Indian Reservation, it is not a part of the reservation and that Rochester was in error in holding that the tribes are the owners of the bed of the lake. It is true, as defendant contends, that the United States is deemed to have held title to submerged lands below navigable waters in trust for the future states in which the water lay, unless the Congress expressly granted title to another. Shively v. Bowlby, 152 U.S. 1, 48-49, 14 S.Ct. 548, 38 L.Ed. 331 (1894). On the other hand, it is also well settled that Congress has the power to include ownership of the beds of navigable waters as a part of an Indian reservation, United States v. Romaine, 255 F. 253, 259 (9 Cir. 1919) relying upon Shively v. Bowlby, supra; Organized Village of Kake v. Egan, 174 F.Supp. 500, 503 (D. Alaska 1959); and that whether or not Congress has done so is a matter of Congressional intent. Choctaw Nation v. Oklahoma, 397 U.S. 620, 633, 90 S.Ct. 1328, 25 L.Ed.2d 615 (1970). The defendant relies upon United States v. Holt State Bank, 270 U.S. 49, 57-58, 46 S.Ct. 197, 70 L.Ed. 465 (1926) which found that the title to the bed of Mud Lake, a navigable waterway within the Red Lake Reservation, had not been granted by treaty or by Act of Congress to the Chippewa Indians, and so title passed to the state of Minnesota upon her entry into the Union. The Court recognized, however, that where the intent is clear (and it may not lightly be inferred) the United States may by treaty or Act of Congress grant Indians title in river beds. In other words, Holt did not involve the express treaty provisions" }, { "docid": "22684245", "title": "", "text": "the Fort Laramie Treaties. Tr. of Oral Arg. 13-14. Statements made by Chief Blackfoot during the treaty negotiations of 1873 buttress this conclusion. See, e. g., 3 App. 136 (“The Great Spirit made these mountains and rivers for us, and all this land”); id., at 171 (“On the other side of the river all those streams belong to the Crows”). The Court suggests that the fact the United States retained a navigational easement in the Big Horn River indicates that the 1868 treaty could not have granted the Crow the exclusive right to occupy all the territory within the reservation boundary. Ante, at 555. But the retention of a navigational easement obviously does not preclude a finding that the United States meant to convey the land beneath the navigable water. See, e. g., Choctaw Nation, supra; Alaska Pacific Fisheries, supra. The Court's reliance on Holt State Bank is misplaced for other reasons as well. At issue in that case was the bed of Mud Lake, a once navigable body of water in the Red Lake Reservation in Minnesota. Prior to the case, most of the reservation, and all the tracts surrounding the lake, had been “relinquished and ceded” by the Indians and sold off to homesteaders. 270 U. S., at 52-53. No such circumstances are present here. See n. 18, infra. Moreover, a critical distinction between this case and Holt State Bank arises from the questionable status of the Red Lake Reservation before Minnesota became a State. The Court in Holt State Bank concluded that in the treaties preceding statehood there had been, with respect to the Red Lake area — unlike other areas — “no formal setting apart of what was not ceded, nor any affirmative declaration of the rights of the Indians therein . . . .” 270 U. S., at 58 (footnote omitted). Thus, Holt State Bank clearly does not control a case, such as this one, in which, prior to statehood, the United States set apart by formal treaty a reservation that included navigable waters. See n. 10, supra. Finally, the Court fails to recognize that" }, { "docid": "10351984", "title": "", "text": "at 14 [55 S.Ct. at 615], it will not be held that the United States has conveyed such land except because of “some international duty or public exigency.” United States v. Holt State Bank, 270 U.S., at 55 [46 S.Ct. at 199]. See also Shively v. Bowlby, supra [152 U.S.], at 48 [14 S.Ct. at 566]. A court deciding a question of title to the bed of a navigable water must, therefore, begin with a strong presumption against conveyance by the United States, United States v. Oregon, supra [295 U.S.], at 14 [55 S.Ct. at 615], and must not infer such a conveyance “unless the intention was definitely declared or otherwise made plain,” United States v. Holt State Bank, supra [270 U.S.], at 55 [46 S.Ct. at 199], or was rendered “in clear and especial words,” Martin v. Waddell, supra [41 U.S.], at 411, or “unless the claim con firmed in terms embraces the land under the waters of the stream,” Packer v. Bird, supra [137 U.S.] at 672 [11 S.Ct. at 212]. 450 U.S. at 551, 101 S.Ct. at 1251. The Court, however, has recognized that Congress may convey lands underlying navigable waters and defeat the equal footing doctrine if the conveyances were necessary to satisfy international obligations, to promote or facilitate commerce among the States or with foreign nations, or to carry out other appropriate public purposes. United States v. Holt State Bank, 270 U.S. 49, 54-55, 46 S.Ct. 197, 199, 70 L.Ed. 465 (1925); Shively v. Bowlby, 152 U.S. 1, 48, 14 S.Ct. 548, 566, 38 L.Ed. 331 (1894). The Montana decision forecloses any argument that Congress intended to convey lands underlying navigable waters unless an express reference to the bed beneath the waters can be found in the grants establishing the reservation. See 450 U.S., at 544, 101 S.Ct. at 1245. For example, an implied conveyance cannot be upheld on the grounds that the navigable water lay wholly within the boundaries of a reservation, id. at 552, 101 S.Ct. at 1251; see United States v. Holt State Bank, 270 U.S. at 57-58, 46 S.Ct. at 199-200," }, { "docid": "14798731", "title": "", "text": "of “land” is corroborated by the technical definition of land in Black’s Law Dictionary, 1019 (4th Ed., 1951), which includes all things of a permanent and substantial nature such as water. See also United States v. Pollman, 364 F.Supp. 995 (D.Mont.1973), in which the court held that the term “land” in § 1165 clearly and unambiguously includes waterways. The remainder of this opinion is directed to defendant’s second contention, namely, that the bed of the navigable waterway upon which defendant was allegedly fishing became the State’s property upon its admission to statehood in 1848 and remains the State’s property today, and thus is not “land that belongs to any , . . Indian Tribe” and “held by the United States' in trust.” The defendant contends that the treaty of 1842 resulted in the United States’ ownership of the navigable waterway at issue; that the United States held that waterway in trust for the future State; that when the territory of Wisconsin became a State in 1848 title to the waterway became vested in the State as trustee for the public; and that any purported grant of navigable waterways to the Chippewa in 1854 by the United States was without authority and a nullity. Plaintiff responds with two contentions: first, that the Chippewa retained beneficial ownership of the land ceded to the United States by the treaty of 1842 and thus the State did not take title to the waterway at issue upon statehood; second, that even if the State did acquire title to the waterway at issue, the United States had sufficient treaty authority to grant exclusive use of the waterway to the Chippewa in 1854. Wisconsin entered the Union “on an equal footing with the original States,” and the original States possessed “. . . the absolute right to all their navigable waters and the soils under them, for their own common use, subject only to the rights since surrendered by the constitution to the general government.” Martin v. Waddell, 41 U.S. (16 Ped.) 366, at 410, 10 L.Ed. 997 (1842). Assuming that the Chippewa ceded all their rights" }, { "docid": "22684185", "title": "", "text": "must, therefore, begin with a strong presumption against conveyance by the United States, United States v. Oregon, supra, at 14, and must not infer such a conveyance “unless the intention was definitely declared or otherwise made plain,” United States v. Holt State Bank, supra, at 55, or was rendered “in clear and especial words,” Martin v. Waddell, supra, at 411, or “unless the claim confirmed in terms embraces the land under the waters of the stream,” Packer v. Bird, supra, at 672. In United States v. Holt State Bank, supra, this Court applied these principles to reject an Indian Tribe’s claim of title to the bed of a navigable lake. The lake lay wholly within the boundaries of the Red Lake Indian Reservation, which had been created by treaties entered into before Minnesota joined the Union. In these treaties the United States promised to “set apart and withhold from sale, for the use of” the Chippewas, a large tract of land, Treaty of Sept. 30, 1854, 10 Stat. 1109, and to convey “a sufficient quantity of land for the permanent homes” of the Indians, Treaty of Feb. 22, 1855, 10 Stat. 1165. See Minnesota v. Hitchcock, 185 U. S. 373, 389. The Court concluded that there was nothing in the treaties “which even approaches a grant of rights in lands underlying navigable waters; nor anything evincing a pur pose to depart from the established policy ... of treating such lands as held for the benefit of the future State.” United States v. Holt State Bank, 270 U. S., at 58-59. Rather, “[t]he effect of what was done was to reserve in a general way for the continued occupation of the Indians what remained of their aboriginal territory.” Id., at 58. The Crow treaties in this case, like the Chippewa treaties in Holt State Bank, fail to overcome the established presumption that the beds of navigable waters remain in trust for future States and pass to the new States when they assume sovereignty. The 1851 treaty did not by its terms formally convey any land to the Indians at all, but" }, { "docid": "3064047", "title": "", "text": "29, 1976, the Tribe moved for Summary Judgment alleging that there existed no issues of fact and that the Tribe owned the lakebed as a matter of law. The Tribe alleges that by virtue of the Treaty of 1858, wherein the Tribe conveyed to the United States all their land except four hundred thousand acres, the Tribe owns the bed underlying Lake Andes. The Tribe claims that since its title to the lakebed has not been extin guished the Tribe is the rightful owner of the lakebed. Charles Mix County and the State, in opposition to the Tribe’s Motion for Summary Judgment, contend that the issué of navigability of Lake Andes, being a question of fact, renders Summary Judgment inapposite. The State, however, later made its own Motion for Summary Judgment wherein the State submits that based upon the extensive record before the Court, including a large number of affidavits concerning the question of navigability, the Court should find that Lake Andes is non-navigable. Upon a finding that Lake Andes is non-navigable the State argues further that in allotting the Yankton Sioux Reservation and ceding the unallotted lands back to the United States, that the Tribe, as well as the United States, intended to terminate tribal ownership of the lakebed. [Yankton Sioux Tribe of Indians v. Nelson, 521 F.Supp. 463, 464-65 (D.S.D.1981).] The court ruled that the Tribe retained ownership of the bed of Lake Andes by virtue of the 1858 Treaty and that the Tribe had not relinquished title to the lakebed during the allotment process. Id. at 466. The district court determined that Montana v. United States, 450 U.S. 544, 101 S.Ct. 1245, 67 L.Ed.2d 493 (1981), and United States v. Holt State Bank, 270 U.S. 49, 46 S.Ct. 197, 70 L.Ed. 465 (1926), did not control this controversy because of differences in treaty language and because, here, the Tribe held aboriginal title to the lakebed, which the United States had never expressly extinguished. In granting summary judgment for the Tribe, the district court did not expressly rule on the underlying question of navigability. The parties, however, agree" }, { "docid": "14798733", "title": "", "text": "in the navigable waterways within the boundaries of the ceded area to the United States by the 1842 treaty, it is well settled that the government’s title to the beds of navigable waterways was held in trust for the future State, and upon statehood passed to Wisconsin in trust for the public. Borax, Ltd. v. Los Angeles, 296 U.S. 10, 56 S.Ct. 23, 80 L.Ed. 9 (1935); Donnelly v. United States, 228 U.S. 243, 33 S.Ct. 449, 57 L.Ed. 820 (1913); Shively v. Bowlby, 152 U.S. 1 at 49, 14 S.Ct. 548, 38 L.Ed. 331 (1894). This principle was explained in United States v. Holt State Bank, 270 U.S. 49, 46 S.Ct. 197, 70 L.Ed. 465 (1926). The United States had brought suit to clear title to the bed of a lake which had been a navigable body of water in an Indian reservation. After the reservation was terminated and the lands around the lake sold to various settlers, the lake was drained. The issue was whether the bed of the lake belonged to the state or the federal government. The court held (270 U.S. at 54-55, 46 S.Ct. at 198-199): It is settled law in this country that lands underlying navigable waters within a state belong to the state in its sovereign capacity . . . subject to the qualification that where the United States, after acquiring a territory and before the creation of the state, has granted rights in such lands . . . such rights are not cut off by the subsequent creation of the state, but remain unimpaired, and the rights which otherwise would pass to the state in virtue of its admission into the Union are restricted or qualified accordingly. . . . The state of Minnesota was admitted to the Union in 1858 . . and under the constitutional principle of equality among the several states, the title to the bed of Mud Lake then passed to the state, if the lake was navigable, and if the bed had not already been disposed of by the United States. The “disposal” of a navigable waterway" } ]

[ { "docid": "14526510", "title": "", "text": "moot. IT IS SO ORDERED. . Doc. No. 15. . Doc. No. 21. . Doc. No. 28. .Doc. No. 30. . 28 U.S.C. § 157(b). . 28 U.S.C. § 1334. . 11 U.S.C. § 101 et seq., hereinafter the “Code.” . Doc. No. 28, at 1. .Doc. No. 30. . Doc. No. 30, at 2 n.l. . See Doc. No. 30, Exhibit D ¶ 17. . See K.S.A. 84-9-102(a)(23) and (a)(26) defining the terms. . See K.S.A. 84-9-102(a)(72). . See K.S.A. 84-9-102(a)(7)(A). . John K. Pearson and J. Scott Pohl, A Brief Overview of Revised Article 9 in Kansas, J. Kansas Bar Ass'n, Sept. 2003, at 24 (footnotes omitted) (emphasis added). . Id. at 29, citing K.S.A. 84-9-108(e) in n.110. . Emphasis added. . 20 Kan.App.2d 853, 855, 893 P.2d 275 (1995). . Baldwin, 20 Kan.App.2d at 856, 893 P.2d 275. . Id. at 857, 893 P.2d 275. However, under the revised U.C.C., intent may no longer be controlling. See Hitchin Post Steak Co. v. Gen. Elec. Capital Corp. (In re HP Distrib., LLP), 436 B.R. 679, 695 (Bankr.D.Kan.2010) (discussing leases, disguised security agreements, and the economic realities test under K.S.A. 84-1-203(c)). . 245 B.R. 518 (Bankr.E.D.Mich.2000). . McLeod, 245 B.R. at 522 (internal quotations and statutory citation omitted). . Id. (internal quotations omitted). . Id. . Id. at 523. . 2 Barkley Clark & Barbara Clark, The Law of Secured Transactions Under the Uniform Commercial Code ¶ 12.2[2] at 12-8 to 12-11 (3d ed. 2013). . Id. at 12-9. . Id. at ¶12.2[2] at 12-8 to 12-11 (3d ed. 2012)." } ]

[ { "docid": "19770852", "title": "", "text": "create. The prudent potential creditor would have read the relevant portion of the agreement, seen that Schedule B was blank, and concluded — and would have been reasonable in concluding — that LaSalle had no security interest in Certified’s tort claims. Furthermore, section 9-203(b)(3)(A) of the UCC provides that a security interest is enforceable against a subsequent creditor (or, as in this case, a trustee in bankruptcy accorded the status of a hypothetical secured creditor) only if “the debtor has authenticated a security agreement that provides a description of the collateral ” (emphasis added). The purpose of the financing statement is to place would-be subsequent creditors on notice that a creditor has a security interest in the debtor’s property; it is the security agreement, which in this case is the part of the loan contract that contains the grant to the lender of a security interest, that defines that interest and by defining limits it. UCC § 9 — 102(a)(73); Signal Capital Corp. v. Lake Shore National Bank, 273 Ill. App.3d 761, 210 Ill.Dec. 388, 652 N.E.2d 1364, 1371 (1995); Allis-Chalmers Corp. v. Staggs, 117 Ill.App.3d 428, 72 Ill.Dec. 840, 453 N.E.2d 145, 148-49 (1983); In re Martin Grinding & Machine Works, Inc., 793 F.2d 592, 594-95 (7th Cir.1986) (Illinois law); Northwest Acceptance Corp. v. Lynnwood Equipment, Inc., 841 F.2d 918, 922 (9th Cir.1988); In re Macronet Group, Ltd., 2004 WL 2958447, at *3-4 (Bkrtcy. N.D.Ill.2004). Hence less detail is required in the financing statement. UCC § 9-504; Richard F. Duncan et al., supra, § 2.02[5][d], pp. 2-22.2 to p. 2-24; cf. 4 James J. White & Robert S. Summers, Uniform Commercial Code § 31-3, pp. 107-09 (5th ed.2004). “The security agreement embodies the intention of the parties and is the document which creates the security interest. ‘It is the primary source to which a creditor’s or potential creditor’s inquiry is directed and must be reasonably specific.’ In re Laminated Veneers Co., 471 F.2d 1124, 1125 (2d Cir.1973). The financing statement on the other hand need not particularize in detail the collateral secured under the security agreement because in accordance" }, { "docid": "1313229", "title": "", "text": "One of the following conditions is met: (a) The debtor has authenticated a security agreement that provides a description of the collateral.... The Trustee does not dispute that value was given and that the Debtor had rights in the vehicle, thereby satisfying the first two requirements of Ohio Revised Code § 1309.203. Therefore, the only issue for our review is whether the application for certificate of title and the certificate of title itself, both noting O’Keefe as lienholder, are sufficient to meet the “security agreement” requirement of Ohio Revised Code § 1309.203. The term “security agreement” is defined as “an agreement that creates or provides for a security interest.” Ohio Rev.Code § 1309.102(A)(73). It has been well established that while no specific words or formalized documents are necessarily required to create a security interest, there must be some written documentation that indicates the parties’ intent to create a security interest. See Silver Creek, 521 N.E.2d at 832; Steego Auto Parts Corp. v. Markey, 2 Ohio App.3d 200, 441 N.E.2d 279, 282 (1981). It thus appears that no special form of words is required to give rise to a security interest. It is, however, necessary that an intent to grant or to create a security interest be manifested. It would be sufficient if the parties use language which leads to the conclusion that it was the intention of the parties that a security interest be created. Id. (internal quotations omitted). In their treatise on the UCC, Professors White and Summers comment on how easily a secured party can create an enforceable Article 9 security interest under Section 9-203: Consider how little suffices to bind the debtor. For example, it is enough for the debtor to write on the back of an envelope, T hereby grant bank a security interest in my cattle, John Jones.’ If the bank makes a loan and the debtor owns the cattle, the parties created a valid security interest despite its informality. 4 White & Summers, Uniform Commercial Code, § 31-2 (6th ed. 2010) (footnote omitted). White and Summers further note: [UCC § ] 9-203 does not" }, { "docid": "18403741", "title": "", "text": "Franklin Inv. Co. v. Homburg, 252 A.2d 95, 97 (D.C.1969) (“[T]he manner in which a product is classified is determined at the time of agreement between the parties giving rise to the security interest....”). The Contract under which Deere was granted a security interest in the Equipment plainly states that the Debtor is borrowing as an individual. The Contract characterizes the agreement as a consumer credit transaction, and it states that the goods financed will be used for personal, family or household use. The Commercial Purpose Affidavit is blank and unsigned. As the bankruptcy court noted in Troupe, “[t]he case law is clear that where a debtor makes an affirmative representation in loan documents that he or she intends to use goods primarily for personal, family or household purposes, the creditor is protected even if the representation turns out to be erroneous.” 340 B.R. at 91. See Sears, Roebuck & Co. v. Pettit (In re Pettit), 18 B.R. 8, 9 (Bankr.E.D.Ark.1981) (holding that seller’s purchase-money security interest was properly perfected without the filing of a financing statement based upon the security agreement’s “affirmative[ ] and unambiguous[ ] representation] ... that [the debt- or] was purchasing the collateral for ‘personal, family or household purposes’ ”); McGehee v. Exchange Bank & Trust Co., 561 S.W.2d 926, 930 (Tex.App.1978) (“[T]he intent of the debtor-purchaser at the time of the sale when ... [the] [b]ank’s security instrument attached to the collateral is controlling, and no creditor is required to monitor the use of collateral in order to ascertain its proper classification.”); 1 Barley Clark & Barbara Clark, The Law of Secured Transactions Under the Uniform Commercial Code ¶ 12.02[3] at 12-20 (rev. ed.2006) (“[J]ust about every case that has dealt with the issue holds that the dealer (and its assignee) can rely on the debtor’s written ‘consumer’ representation.”). Here, the Debtor made an affirmative representation that the goods were for personal, family or household use. There is no evidence in the summary judgment record that this representation was false or erroneous in any way, or that the Debt- or did not understand what he" }, { "docid": "7089618", "title": "", "text": "as “an agreement which creates or provides for a security interest.” U.C.C. § 9-105(1 )(1). An agreement is defined as “the bargain of the parties in fact as found in their language or by implication from other circumstances.” § 1-201(3). “No magic words or precise form are necessary to create or provide for a security interest so long as the minimum formal requirements of the Code are met.” Nolden v. Plant Reclamation (In re Amex Development Corp.), 504 F.2d 1056, 1058 (9th Cir.1974). It is not necessary that the debtor sign a formal document denominated “security agreement.” Any writing, “regardless of the label, which adequately describes the collateral, carries the signature of the debtor, and establishes that in fact a security interest was agreed upon, would satisfy both the formal requirements of the statute, and the policies behind it. In re Numeric, 485 F.2d 1328, 1331 (1st Cir.1973). The debtor’s application for a certificate of title was signed by the debtor, contained a description of the collateral and listed the name of the secured creditor. The application submitted by the debtor to the secretary of state constitutes a security agreement within the meaning of sections 1— 201(3), 9-105(l)(i), and 9-203(l)(a) of the Uniform Commercial Code. Moreover, it is not necessary to rely solely on the application to reach this conclusion. The application for the certificate of title, when read together with the certificate issued listing Barry J. McCormick as a secured creditor, clearly satisfies the Code’s security agreement requirement. Baystate Drywall Inc. v. Chicopee Savings Bank, 385 Mass. 17, 429 N.E.2d 1138 (Mass.1982). Under Michigan law, perfection of a security interest in a motor vehicle is accomplished by notation of the name of the secured party on the certificate of title. U.C.C. § 9-302(3). Since the debtor executed a security agreement and the security interest was perfected, the creditor has a valid security interest not subject to attack by the debtor or the trustee. The trustee’s complaint is dismissed, and the debtor’s claim of exemption for the motor vehicle is allowed, but only to the extent of the debtor’s equity" }, { "docid": "1339770", "title": "", "text": "(Bkrtcy.W.D.Wash.1982). Instruments must be perfected by possession. K.S.A. § 84-9-304(1)(a); § 84-9-305 (Supp.1981); J. White & R. Summers, Uniform Commercial Code § 23-10, at 934-35 (2nd Ed.1980). 1. Assignment of Note ASB asserts the debtors assigned the promissory note itself to ASB. The Assignment of the note itself constituted an assignment of an instrument to secure payment of the debtors’ obligation to ASB. A security interest in an instrument such as a note must be perfected by possession, but ASB failed to prove it had possession of the note when the debtors filed their chapter 7 petition and further failed to prove it ever had possession of the note. Possession of the note by the debtor did not constitute constructive possession by ASB, or possession sufficient to perfect ASB’s security interest under K.S.A. § 84-9-304. See, e.g., Huffman v. Wikle, (In Re Staff Mortgage and Investment Corp.), 550 F.2d 1228, 21 UCC Rep. 887 (9th Cir.1977); In Re Bruce Farley Corp., 612 F.2d 1197, 28 UCC Rep. 240 (9th Cir.1980). As stated in Official Comment 2 to K.S.A. § 84-9-305 (Supp.1981): Possession may be by the secured party himself or by an agent on his behalf; it is of course clear, however, that the debtor ... cannot qualify as such an agent for the secured party. See also B. Clark, The Law of Secured Transactions Under the Uniform Commercial Code ¶ 2.6[2] (1980); In Re Staff Mortgage & Investment Corp., 625 F.2d 281 (9th Cir.1980). Therefore, under the assignment of note theory, ASB was unperfected and the trustee as lien creditor has priority in the rights under the note pursuant to 11 U.S.C. § 544(a)(1), (2) and K.S.A. § 84-9-301(l)(b) (Supp.1982). 2. Assignments of the Right to Receive Payment The trustee argues ASB has been assigned the right to receive payment under the note. Although ASB’s argument has already failed, the Court will address the trustee’s argument. At the time their petition was filed, the debtors were indebted to ASB under the November 29, 1976 promissory note. As security for this indebtedness, ASB first has the right to receive payments" }, { "docid": "14202127", "title": "", "text": "NOSI. Nevertheless, as the bankruptcy court noted, “[t]he majority approach across the states is that substantial compliance is the standard for perfection of security interests under state certificate of title statutes.” In re Charles, 268 B.R. at 578 (citing 1 Barkley Clark, The Law of Secured Transactions Under the Uniform Commercial Code, ¶ 12.03[1] at 12-14 (1993)). In discussing the “extent to which the courts should be able to soften the literal requirements of state certificate-of-title legislation if that softening is consistent with Article 9,” Mr. Clark writes: This approach has the effect of “modernizing” the certificate of title statutes to fit better with the policies underlying Article 9 in general. Several courts have taken this approach, in effect allowing “substantial compliance” with the certificate of title statute rather than requiring “strict compliance.” These decisions seem correct.... When a motor vehicle lease is a disguised Article 9 financing, showing the name of the lessor as owner rather than lienholder on the certificate of title should be sufficient because no third party could be misled. Clark, supra, at 12-14. Under the majority approach, regardless of any express statutory requirements, a secured creditor is not required to disclose its status as a lienholder on a vehicle’s certificate of title in order to achieve perfected status. Instead, it is sufficient if the creditor is identified as the owner of the vehicle. See Load-It, Inc. v. VTCC, Inc. (In re Load-It, Inc.), 774 F.2d 1077, 1078-79 (11th Cir.1985) (holding security interest in motor vehicle perfected under Georgia law where secured creditor identified as owner on certificate of title); In re Circus Time, Inc., 641 F.2d 39, 42-44 (1st Cir.1981) (same, applying Maine and New Hampshire law); In re Nat’l Welding of Mich., Inc., 61 B.R. 314, 317 (W.D.Mich.1986) (same, applying Michigan law); In re Microband Cos., Inc., 135 B.R. 2, 4-6 (Bankr.S.D.N.Y.1991) (same, applying New York, New Jersey, Maryland, and Michigan law); Yeager Trucking v. Circle Leasing of Colo. Corp. (In re Yeager Trucking), 29 B.R. 131, 134-35 (Bankr.D.Colo.1983) (same, applying Colorado law); Coble Sys., Inc. v. Coors of the Cum berland, Inc. (In" }, { "docid": "1313232", "title": "", "text": "be recognized whenever the parties so intend.” Id. Rather than requiring one single document evidencing this intent, courts typically “review all the documents between the parties to determine whether a sufficient written foundation has been established for the creation of a security interest.” Silver Creek, 521 N.E.2d at 832 (emphasis in original). This approach, often referred to as the “composite documents approach,” “examines all the documents executed between a debtor and a creditor to determine, if taken together, whether the ‘writing or writings, regardless of label, ... adequately describes the collateral, carries the signature of the debtor, and establishes that in fact a security interest was agreed upon....”’ Belfance v. Buonpane (In re Omega Door Co., Inc.), 399 B.R. 295, 306 (6th Cir. BAP 2009) (quoting In re Numeric Corp., 485 F.2d 1328, 1331 (1st Cir.1973)). Official Comment 3 to Ohio Revised Code § 1309.203 explains that the requirement of a writing is “in the nature of a Statute of Frauds.” We are unaware of any Ohio court decisions addressing whether an application for certificate of title and certificate of title, in particular, are sufficient to create a security interest under Ohio Revised Code § 1309.203. Thus, we must interpret the governing state law, and predict what the highest court of Ohio would decide, from “all relevant data” including “state appellate decisions, ... state supreme court dicta, restatements of law, law review commentaries, and the majority rule among other states.” See Lebovitz v. Hagemeyer (In re Lebovitz), 360 B.R. 612, 621 (6th Cir. BAP 2007) (quoting Garden City Osteopathic Hosp. v. HBE Corp., 55 F.3d 1126, 1130 (6th Cir.1995)). In trying to predict whether the highest court of Ohio would deem the application for certificate of title and certificate of title in the present case as sufficient to create a security interest under Ohio Revised Code § 1309.203, perhaps the most instructive Ohio appellate court decision is the 1987 decision of the Ohio Court of Appeals in Silver Creek. In Silver Creek, the only document available that purported to establish a security agreement was a standardized financing statement. The court" }, { "docid": "21517609", "title": "", "text": "refinance negative equity remaining on trade-in and to acquire new vehicle only had PMSI in amount used to purchase new vehicle); In re Kellerman, 377 B.R. 302 (Bankr.D.Kan.2007) (Berger, J.); In re Vega, 344 B.R. 616 (Bankr.D.Kan.2006) (Karlin, J.). . Billings v. Avco Colorado Ind. Bank (In re Billings), 838 F.2d 405, 406 (10th Cir.1988) (Courts uniformly look to the law of the state where the security interest was created to determine if it is a PMSI); In re Horn, 338 B.R. 110, 113 (Bankr.M.D.Ala.2006); In re Gibson, 16 B.R. 257 (Bankr.D.Kan.1981). . Kan. Stat. Ann. § 84-9-103(a)(2) (2007 Supp.) (Emphasis added). . Kan. Stat. Ann. § 84-9-103(a)(1) (2007 Supp.). . Kan. Stat. Ann. § 84-9-103(b)(1) (2007 Supp.). . Kan. Stat. Ann. § 84-9-103, Official Comment 3 (Emphasis added). . Id. . 378 B.R. 352 (Bankr.D.Utah 2007) (Thurman, J.) . Id. at 364-65. . See also In re Austin, 381 B.R. 892 (Bankr.D.Utah 2008) (Clark, J.). . Barkley Clark, 2 The Law of Secured Transactions UNDER THE UNIFORM COMMERCIAL CODE, ¶ 12.05[10][b][vii], pp. 12-103-104.5 (Rev. ed.2007). Clark discloses his involvement in litigation on the negative equity issue on the side of the car loan lender. Id. at p. 12-104.5, n. 276.10. . Id. at p. 12-104.1. Clark makes clear, however, only one prong of the purchase-money obligation definition needs to be satisfied. . See Keith G. Meyer, A Primer on Purchase Money Security Interests Under Revised Article 9 of the Uniform Commercial Code, 50 U. Kan. L.Rev. 143, 155-59 (Nov.2001) for discussion of the transformation and dual status rules under revised Article 9. As noted in Meyer’s Primer, Kansas did not adopt the uniform version of revised section 9-103(h) [limiting § 9-103(e), (f), and (g) to commercial transactions] in its revision to Article 9 and did not adopt all of the uniform version of revised section 9-103(f). Specifically, while the uniform version specifically states that the dual status rule in 9—103(f) applies in a non-consumer goods transaction, the Kansas version of § 9-103(f) makes no distinction between consumer goods transactions and non-consumer goods transactions. See Offi cial UCC Comment 7and" }, { "docid": "16359165", "title": "", "text": "the debt,” and so long as Tuxedo made timely payments to plaintiffs, it, and not plaintiffs, would receive the payments due from Mayrich. Whenever a security interest is intended, Article 9 of the Code applies, regardless of the form of the transaction. See N.Y.U.C.C. § 9-102; N.J.StatAnn. § 12A9-102. Section 9-203 of the Code determines whether a security interest is enforceable. It states in pertinent part: “the security interest is not enforceable ... unless ... the debtor has signed a security agreement which contains a description of the collateral....” N.Y.U.C.C. § 9-203(l)(a); N.J.Stat. Ann. § 9-203(l)(a). A “security agreement” is defined in the Code as an “agreement which creates or provides for a security interest.” N.Y.U.C.C. § 9-105(1)00; N.J.Stat. Ann. § 12A:9-105(1)(Z). A security agreement, like an assignment, need not be embodied in a formal document. See In the Matter of Candy Lane Corp., 38 B.R. 571 (Bkrtcy.S.D.N.Y.1984); In re Mission Marine Associates, Inc., 3 B.R. 543, 546 (Bkrtcy.D.N.J.1980). Rather, it is sufficient that there exist, in addition to a standard form financing statement, some written evidence of the assignor’s intent to grant the security interest. In re Modafferi, 45 B.R. 370, 372 (S.D.N.Y.1985) (summarizing eases that have read finance statement together with other documents to find a valid security interest); In re Mission Marine Associates, 3 B.R. at 546-47 (applying, under New Jersey law, principle that security agreement can be deduced from a variety of documents). Such written evidence must include the debtor’s signature and an adequate description of the collateral. See In re Coffee Cupboard, Inc., 33 B.R. 668, 672 (Bkrtcy.E.D.N.Y.1983). A financing statement “standing alone, does not constitute a security agreement” but indicates only that the secured party may have an interest in the described collateral. In re Modafferi, 45 B.R. at 372. Here the parties created a valid security interest. The document purporting to constitute the assignment of accounts receivable admittedly does not contain a description of the collateral. But the letter agreement between plaintiffs and Tuxedo, read together with the UCC-1 financing statement, is sufficient to constitute a security agreement and a conditional assignment under" }, { "docid": "1182333", "title": "", "text": "witnesses.” Bankruptcy Rule 8013 (1984). See In re Southern Indus. Banking Corp., 809 F.2d 329, 331 (6th Cir.1987); In re Martin, 761 F.2d 1163, 1165 (6th Cir.1985); In re Troup, 730 F.2d 464, 466 (6th Cir.1984); In re Calhoun, 715 F.2d 1103, 1110 (6th Cir.1983). In this regard, whether the writing or writings are sufficient to meet the statutory requirements for a valid security agreement is a question of law. S.E.L. Maduro (Florida) Inc. v. Strachan Shipping Co., 800 F.2d 1572, 2 UCC Rep.Serv. 687, 692-93 (11th Cir.1986). Whether the parties intended to create a security agreement is a “question of fact, or at best, mixed questions of law and fact”; Hyman v. Semmes, 26 F.2d 10, 12 (6th Cir.1928); see White & Summers, § 23-3 at p. 905 n. 5; and, “unless the Bankruptcy Judge has made a clear mistake applying the law to the facts, the judge’s fact findings of intent must be affirmed.” Sunset Enterprises, Inc. v. B & B Coal Co., Inc., 38 B.R. 712, 716 (D.C.Va.1984), aff'd. 798 F.2d 1409 (4th Cir.1986). With these standards in mind, this Court must turn to the law of Kentucky to examine the validity of Continental’s security interest. In re Axvig, 68 B.R. 910, 3 UCC Rep.Serv. 312 (Bankr.D.N. D.1987). Under the Kentucky Uniform Commercial Code (hereinafter “Code”), a security interest is not enforceable against the debt- or or third parties with respect to the collateral and does not attach unless three (3) things occur: (1) the collateral must either be in the secured party’s possession pursuant to agreement or the debtor must have “signed a security agreement which contains a description of the collateral”, (2) value must have been given to the debtor by the secured party, and (3) the debtor must have rights in the collateral. Ky.Rev. Stat. § 355.9-201 (1964). The Code defines “security interest” as “an interest in personal property or fixtures which secures payment or performance of an obligation”; Ky.Rev.Stat. § 355.1-201(37) (1987); and “security agreement” means “an agreement which creates or provides for a security interest”. Ky.Rev.Stat. § 355.9-105(l)(Z) (1987). The purpose of" }, { "docid": "1313237", "title": "", "text": "courts which have reached the same conclusion. See e.g., Hall v. Hopkins (In re Jacobs), No. 04-42387, 2006 WL 4451566, at *4 (Bankr.D.Idaho Feb.10, 2006) (finding signed application for certificate of title and certificate of title noting lienholder sufficient to create security interest under Idaho Code § 28-9-203); Roan v. Murray, 219 Mich.App. 562, 556 N.W.2d 893, 895 (1996) (holding that application for certificate of title signed by debtor and noting lienholder constitutes security agreement); Simplot v. William C. Owens, M.D., P.A., 119 Idaho 243, 805 P.2d 449, 452 (1990) (holding notation in promissory notes that bus was security together with endorsement and delivery of certificate of title constituted security agreement); Bay state Drywall, Inc. v. Chicopee Sav. Bank, 385 Mass. 17, 429 N.E.2d 1138, 1142 (1982) (application for transfer of title which lists lienholder meets writing requirement for security interest to attach); In re McCormick, 24 B.R. at 720 (application for certificate of title and certificate of title that both listed secured creditor satisfied security agreement requirement); Kreiger v. Hartig, 11 Wash.App. 898, 527 P.2d 483, 486 (1974) (finding application for transfer of title signed by debtor sufficient to create security interest); Clark v. Vaughn, 504 S.W.2d 550, 553 (Tex.Civ.App.1973) (holding debtor signed certificate of title sufficient to constitute a security agreement). Wray v. Estate of Wray, No. 9820, 1996 WL 268382 (Tenn.Ct.App. May 22, 1996) (application for certificate of title noting vehicle lien and bill of sale sufficient to give lienholder a security interest in vehicle under Tennessee version of UCC 9-203). In the present case, the application for a certifícate of title is a writing signed by the Debtor and sworn to and subscribed in the presence of a notary. The application specifically identifies the collateral, the Toyota RAY 4 with its vehicle identification number, and instructs the State of Ohio to issue a title showing O’Keefe as lienholder. The application includes the following printed language regarding- liens on the motor vehicle: The following is a full statement of all liens on said motor vehicle. If no lien, state “none”. If more than one lien, attach statement" }, { "docid": "9920816", "title": "", "text": "re M. Silverman Laces, Inc.), 2002 WL 31412465 at *6 (S.D.N.Y. Oct. 24, 2002). .Pembroke Dev. Corp. v. Commonwealth Savs. & Loan Ass'n (In re Pembroke Dev. Corp.), 124 B.R. 398, 400-01 (Bankr.S.D.Fla. 1991). . See 5 Cottier on Bankruptcy, ¶ 548.01[2][a] at 548-15 (\"For the most part, the UFTA tracks section 548.”). . Clark v. Sec. Pac. Bus. Credit, Inc. (In re Wes Dor, Inc.), 996 F.2d 237, 242-43 (10th Cir.1993). . Jobin v. McKay (In re M & L Business Mach. Co., Inc.), 84 F.3d 1330, 1338 (10th Cir.1996). . Stalnaker v. Gratton (In re Rosen Auto Leasing, Inc.), 346 B.R. 798, 806 (8th Cir. BAP 2006) (citing Helms v. Roti (In re Roti), 271 B.R. 281, 299 (Bankr.N.D.Ill.2002)). Roti also said,“[C]ourts have denied use of the § 548(c) shelter to defendants who were not able to establish 'reasonably equivalent value' for purposes of § 548(a)(1)(B).” 271 B.R. at 299. . Doc. 171 at 23-24 and 49-51. . Doc. 170 at 33-34. . See 2 Barkley Clark and Barbara Clark, The Law of Secured Transactions Under the Uniform Commercial Code, ¶ 7.09 (3d ed., 2015). . 5 Collier on Bankruptcy, ¶ 547.03{7] at 547-39 to -40. ' . 11 U.S.C. § 550(a)(1). . 11 U.S.C. § 550(b). . 5 Collier on Bankruptcy, ¶ 550.02[4][a] at 50-20. . Hopkins v. D.L. Evans Bank (In re Fox Bean Co., Inc.), 287 B.R. 270, 283 (Bankr.D.Idaho 2002). . Northern Capital, Inc., v. Stockton Nat’l Bank (In re Brooke Corp.), 458 B.R. 579, 584-85 (Bankr.D.Kan.2011). . Doc. 170 at 17. . Id. at 18-19. . Turner v. Davis, Gillenwater & Lynch (In re Inv. Bankers, Inc.), 4 F.3d 1556 (10th Cir. 1993). . Id. at 1566. . Id. . Diamond v. Bakay (In re Bakay), 454 Fed. Appx. 652, 654 (10th Cir.2011) (quoting U.S. Indus., Inc., v. Touche Ross & Co., 854 F.2d 1223, 1256 (10th Cir.1988)). . FDIC v. Rocket Oil Co., 865 F.2d 1158, 1160 (10th Cir.1989). . Inv. Bankers, 4 F.3d at 1566. . Doc. 124 at 6. .Id. at 8. . • See 10 Charles Alan Wright, Arthur" }, { "docid": "1313227", "title": "", "text": "title certificate notation is required in most states to perfect a security interest in a motor vehicle in the hands of the ultimate user has no effect upon the creation of a security interest in a motor vehicle. Bradley v. K & E Invs., Inc., 847 S.W.2d 915, 921 (Mo.Ct.App.1993) (citing 8 Anderson on the Uniform Commercial Code § 9-203:8 at 664 (3d ed.1985)); see also Wyatt v. Nowlin (In re Wyatt), 338 B.R. 76, 80 (Bankr.W.D.Mo.2006) (while certificate of title statute specifies manner in which lien is perfected, Article 9 continues to govern how lien is created); Owen v. Lundstrom (In re Owen), 349 B.R. 66, 69 (Bankr.D.Idaho 2006) (Idaho’s version of Article 9 governs attachment of security interest in vehicle, while Idaho Vehicle Titles Act governs its perfection). Therefore, contrary to O’Keefe’s assertions, Article 9 of the UCC, as adopted and enacted by Ohio, governs her claim to a security interest in the Debtor’s vehicle. UCC Article 9, governed by Ohio Revised Code §§ 1309.101-1309.709, “applies to ... [a] transaction, regardless of its form, that creates a security interest in personal property_” Ohio Rev.Code § 1309.109(A)(1). A “security interest” is defined in Ohio Revised Code § 1301.01(KK)(1) as “an interest in personal property or fixtures that secures payment or performance of an obligation.” At the center of Ohio Revised Code Chapter 1309 is § 1309.203 which sets forth the attachment and enforceability of a secured interest and the formal requisites. See Silver Creek Supply v. Powell, 36 Ohio App.3d 140, 521 N.E.2d 828, 831 (1987). Ohio Revised Code § 1309.203 provides: (A) A security interest attaches to collateral when it becomes enforceable against the debtor with respect to the collateral, unless an agreement expressly postpones the time of attachment. (B) Except as otherwise provided in divisions (C) to (I) of this section, a security interest is enforceable against the debtor and third parties with respect to the collateral only if: (1) Value has been given; (2) The debtor has rights in the collateral or the power to transfer rights in the collateral to a secured party; and (3)" }, { "docid": "1313225", "title": "", "text": "the mode of perfecting a security interest in a motor vehicle. Article 9 itself contemplates the existence of these title laws, and expressly gives way to them in regard to filing. [see § 9-311(a) ] But even though some of these laws also include priority rules, those rules do not control when in conflict with Article 9 unless the state legislature specifically so provides. 4 White & Summers, Uniform Commercial Code, § 30-12 (6th ed.2010) (footnotes omitted). Ohio Rev.Code § 1309.311(A)(2) so contemplates Ohio’s Certificate of Title Act and gives way to it in regard to filing in providing that the “filing of a financing statement is not necessary or effective to perfect a security interest in property subject to ... Chapters ... 4505 ... of the Revised Code-” Section 1309.311 goes on to provide that, except for certain situations which are not applicable here, “duration and renewal of perfection of a security interest perfected by compliance with the requirements prescribed by a statute, regulation, or treaty described in division (A) of this section [such as Chapter 4505] are governed by the statute, regulation, or treaty. In other respects, the security interest is subject to this chapter.” Ohio Rev.Code § 1309.311(C). In other words, the Certificate of Title Act governs perfection, duration, and renewal of the security interest, but in all other respects, including its creation, the security interest is governed by Article 9. See In re Fields, 351 B.R. at 891 (Ohio’s version of UCC Article 9 continued to govern assignment of security interest in motor vehicle perfected under Ohio’s Certificate of Title Act); see also Noland v. HSBC Auto Fin., Inc. (In re Baine), 393 B.R. 561, 566 (Bankr.S.D.Ohio 2008) (creditor that failed to note lien on vehicle’s certificate of title had valid security interest under O.R.C. § 1309.203; however, security interest was unperfected under O.R.C. 4505.13(B)). As one court has explained: Secured transactions in motor vehicles are governed by the same principles as govern secured transactions in other types of collateral insofar as the creation and effect of a secured transaction therein is concerned. The fact that" }, { "docid": "19770853", "title": "", "text": "652 N.E.2d 1364, 1371 (1995); Allis-Chalmers Corp. v. Staggs, 117 Ill.App.3d 428, 72 Ill.Dec. 840, 453 N.E.2d 145, 148-49 (1983); In re Martin Grinding & Machine Works, Inc., 793 F.2d 592, 594-95 (7th Cir.1986) (Illinois law); Northwest Acceptance Corp. v. Lynnwood Equipment, Inc., 841 F.2d 918, 922 (9th Cir.1988); In re Macronet Group, Ltd., 2004 WL 2958447, at *3-4 (Bkrtcy. N.D.Ill.2004). Hence less detail is required in the financing statement. UCC § 9-504; Richard F. Duncan et al., supra, § 2.02[5][d], pp. 2-22.2 to p. 2-24; cf. 4 James J. White & Robert S. Summers, Uniform Commercial Code § 31-3, pp. 107-09 (5th ed.2004). “The security agreement embodies the intention of the parties and is the document which creates the security interest. ‘It is the primary source to which a creditor’s or potential creditor’s inquiry is directed and must be reasonably specific.’ In re Laminated Veneers Co., 471 F.2d 1124, 1125 (2d Cir.1973). The financing statement on the other hand need not particularize in detail the collateral secured under the security agreement because in accordance with the ‘notice filing’ concept adopted under the Uniform Commercial Code a financing statement serves to give notice that the secured party who filed may have a security interest in the collateral and that further inquiry with respect to the security agreement will be necessary to disclose the complete state of affairs. Thus, while the financing state ment may be adequate, it is the security agreement which must resolve the question as to adequacy of the description of the collateral.” In re Fagan, No. 78B1876, 1979 WL 30029, p. 2 (S.D.N.Y. June 19, 1979) (citation omitted). So the prudent creditor need look no further than the security agreement. In re Martin Grinding & Machine Works, Inc., supra, 793 F.2d at 596-97; In re Laminated Veneers Co., supra, 471 F.2d at 1125. For many kinds of collateral, the description in the security agreement need only name the type of collateral. See UCC § 9-108(b)(3); Reiley, supra, §§ 10:14, 10:18, pp. 10-17, 10-20 to 10-21, such as accounts, equipment, and negotiable instruments, UCC §§ 9-102(a)(2), (33), (47)." }, { "docid": "1313226", "title": "", "text": "as Chapter 4505] are governed by the statute, regulation, or treaty. In other respects, the security interest is subject to this chapter.” Ohio Rev.Code § 1309.311(C). In other words, the Certificate of Title Act governs perfection, duration, and renewal of the security interest, but in all other respects, including its creation, the security interest is governed by Article 9. See In re Fields, 351 B.R. at 891 (Ohio’s version of UCC Article 9 continued to govern assignment of security interest in motor vehicle perfected under Ohio’s Certificate of Title Act); see also Noland v. HSBC Auto Fin., Inc. (In re Baine), 393 B.R. 561, 566 (Bankr.S.D.Ohio 2008) (creditor that failed to note lien on vehicle’s certificate of title had valid security interest under O.R.C. § 1309.203; however, security interest was unperfected under O.R.C. 4505.13(B)). As one court has explained: Secured transactions in motor vehicles are governed by the same principles as govern secured transactions in other types of collateral insofar as the creation and effect of a secured transaction therein is concerned. The fact that title certificate notation is required in most states to perfect a security interest in a motor vehicle in the hands of the ultimate user has no effect upon the creation of a security interest in a motor vehicle. Bradley v. K & E Invs., Inc., 847 S.W.2d 915, 921 (Mo.Ct.App.1993) (citing 8 Anderson on the Uniform Commercial Code § 9-203:8 at 664 (3d ed.1985)); see also Wyatt v. Nowlin (In re Wyatt), 338 B.R. 76, 80 (Bankr.W.D.Mo.2006) (while certificate of title statute specifies manner in which lien is perfected, Article 9 continues to govern how lien is created); Owen v. Lundstrom (In re Owen), 349 B.R. 66, 69 (Bankr.D.Idaho 2006) (Idaho’s version of Article 9 governs attachment of security interest in vehicle, while Idaho Vehicle Titles Act governs its perfection). Therefore, contrary to O’Keefe’s assertions, Article 9 of the UCC, as adopted and enacted by Ohio, governs her claim to a security interest in the Debtor’s vehicle. UCC Article 9, governed by Ohio Revised Code §§ 1309.101-1309.709, “applies to ... [a] transaction, regardless of its" }, { "docid": "1313231", "title": "", "text": "require more [than a showing that parties intended a security interest] for as [Official] comment 3 [to 9-203] states, the writing requirement is a formal requisite ‘in the nature of a statute of frauds.’ A statute of frauds requirement on the model of 2-201 merely contemplates objective in-dicia of the possibility of an underlying actual agreement — here an agreement for security. Id. at § 31-3. Chapter 1309 of the Ohio Revised Code “shall be liberally construed and applied to promote [its] underlying purposes and policies.” Ohio Rev.Code § 1301.02(A). Some of those underlying purposes and policies are to “simplify, clarify, and modernize the law governing commercial transactions,” and to “permit the continued expansion of commercial practices through custom, usage, and agreement of the parties[J” Ohio Rev.Code § 1301.02(B)(1) and (2). This liberal approach of the UCC to commercial law was recognized by the Third District Court of Appeals of Ohio in Silver Creek, 521 N.E.2d at 833. Additionally, the Silver Creek court noted that Ohio Revised Code § 1309.109 “implies that security interests should be recognized whenever the parties so intend.” Id. Rather than requiring one single document evidencing this intent, courts typically “review all the documents between the parties to determine whether a sufficient written foundation has been established for the creation of a security interest.” Silver Creek, 521 N.E.2d at 832 (emphasis in original). This approach, often referred to as the “composite documents approach,” “examines all the documents executed between a debtor and a creditor to determine, if taken together, whether the ‘writing or writings, regardless of label, ... adequately describes the collateral, carries the signature of the debtor, and establishes that in fact a security interest was agreed upon....”’ Belfance v. Buonpane (In re Omega Door Co., Inc.), 399 B.R. 295, 306 (6th Cir. BAP 2009) (quoting In re Numeric Corp., 485 F.2d 1328, 1331 (1st Cir.1973)). Official Comment 3 to Ohio Revised Code § 1309.203 explains that the requirement of a writing is “in the nature of a Statute of Frauds.” We are unaware of any Ohio court decisions addressing whether an application for certificate" }, { "docid": "14202126", "title": "", "text": "absence of [Kansas] law directly on point, we attempt to predict how [the Kansas Supreme Court] would rule.” FDIC v. Schuchmann, 235 F.3d 1217, 1225 (10th Cir.2000). “In conducting our inquiry, we are free to consider all resources available, including decisions of [Kansas] courts, other state courts and federal courts, in addition to the general weight and trend of authority.” Id. Kansas has adopted Article 9 of the Uniform Commercial Code. Under Kan. Stat. Ann. §§ 84-9-302(3)(c) (1996) and 8-135(c)(2) and (5) (1996), “there are two alternative ways that a secured creditor on a motor vehicle can perfect its security interest: (1) by having its lien noted on the certificate of title which is then duly filed, or (2) by filing a ‘notice of security interest’ (“NOSI”).” In re Charles, 268 B.R. at 577; accord Beneficial Fin. Co. of Kan., Inc. v. Schroeder, 12 Kan.App.2d 150, 737 P.2d 52, 53 (1987). In this case, CIT is identified on the certificates of title as the owner rather than a lienholder, and CIT did not file a NOSI. Nevertheless, as the bankruptcy court noted, “[t]he majority approach across the states is that substantial compliance is the standard for perfection of security interests under state certificate of title statutes.” In re Charles, 268 B.R. at 578 (citing 1 Barkley Clark, The Law of Secured Transactions Under the Uniform Commercial Code, ¶ 12.03[1] at 12-14 (1993)). In discussing the “extent to which the courts should be able to soften the literal requirements of state certificate-of-title legislation if that softening is consistent with Article 9,” Mr. Clark writes: This approach has the effect of “modernizing” the certificate of title statutes to fit better with the policies underlying Article 9 in general. Several courts have taken this approach, in effect allowing “substantial compliance” with the certificate of title statute rather than requiring “strict compliance.” These decisions seem correct.... When a motor vehicle lease is a disguised Article 9 financing, showing the name of the lessor as owner rather than lienholder on the certificate of title should be sufficient because no third party could be misled. Clark," }, { "docid": "1313236", "title": "", "text": "lienholder demonstrated the necessary intent to create a security interest under the “composite documents” approach. Id. at 726. In rejecting the defendant’s argument, the court explained that because neither a financing statement, the equivalent of a vehicle’s certificate of title, alone, nor a promissory note alone, exhibit the requisite intent to create a security interest, it could not find that the two documents standing together, under the circumstances of the case, demonstrated that the debtor and the defendant intended to create a security interest in the vehicle at issue. Id. at 726-27. In this case, however, in keeping with the liberal policies of the UCC, we hold, and we believe the Ohio Supreme Court would similarly hold, that the application for certificate of title, a document which was not presented in De Vincent, and the certificate of title itself, taken together, constitute a security agreement within the meaning of Ohio Revised Code § 1309.203. While we are aware that other courts have come to the opposite conclusion, we are also in the company of many courts which have reached the same conclusion. See e.g., Hall v. Hopkins (In re Jacobs), No. 04-42387, 2006 WL 4451566, at *4 (Bankr.D.Idaho Feb.10, 2006) (finding signed application for certificate of title and certificate of title noting lienholder sufficient to create security interest under Idaho Code § 28-9-203); Roan v. Murray, 219 Mich.App. 562, 556 N.W.2d 893, 895 (1996) (holding that application for certificate of title signed by debtor and noting lienholder constitutes security agreement); Simplot v. William C. Owens, M.D., P.A., 119 Idaho 243, 805 P.2d 449, 452 (1990) (holding notation in promissory notes that bus was security together with endorsement and delivery of certificate of title constituted security agreement); Bay state Drywall, Inc. v. Chicopee Sav. Bank, 385 Mass. 17, 429 N.E.2d 1138, 1142 (1982) (application for transfer of title which lists lienholder meets writing requirement for security interest to attach); In re McCormick, 24 B.R. at 720 (application for certificate of title and certificate of title that both listed secured creditor satisfied security agreement requirement); Kreiger v. Hartig, 11 Wash.App. 898, 527" }, { "docid": "1339769", "title": "", "text": "holding that appear in Southworth are herein adopted and incorporated by reference. Id. The next question before the Court is: what was assigned? The trustee contends that the “right to receive payments” under the contract for deed was assigned. ASB contends the promissory note itself was assigned. The right to receive payments under a contract for deed is a “general intangible” under K.S.A. § 84-9-106 (Supp.1981). B. Clark, The Law of Secured Transactions Under the Uniform Commercial Code, ¶ 1.8[10][g] at 1 — 72 (1980). A general intangible can be perfected only by a UCC-1 filing with the Kansas Secretary of State. K.S.A. § 84-9-302(l)(a); § 84-9-305 (Supp.1981); § 84-9-401(l)(c) (Supp.1981). The assignment of the promissory note itself is an assignment of an instrument as defined in K.S.A. § 84-9-105(i) (Supp.1981). B. Clark, supra, ¶ 1.8[10][a], at 1-70 to -71; ¶3.6 at 3-32. See Greiner v. Wilke (In Re Staff Mortgage & Investment Corp.), 625 F.2d 281 (9th Cir.1980); Johnstone v. Mills (In Re Columbia Pacific Mortgage, Inc.), 22 B.R. 753, 34 UCC Rep. 1382 (Bkrtcy.W.D.Wash.1982). Instruments must be perfected by possession. K.S.A. § 84-9-304(1)(a); § 84-9-305 (Supp.1981); J. White & R. Summers, Uniform Commercial Code § 23-10, at 934-35 (2nd Ed.1980). 1. Assignment of Note ASB asserts the debtors assigned the promissory note itself to ASB. The Assignment of the note itself constituted an assignment of an instrument to secure payment of the debtors’ obligation to ASB. A security interest in an instrument such as a note must be perfected by possession, but ASB failed to prove it had possession of the note when the debtors filed their chapter 7 petition and further failed to prove it ever had possession of the note. Possession of the note by the debtor did not constitute constructive possession by ASB, or possession sufficient to perfect ASB’s security interest under K.S.A. § 84-9-304. See, e.g., Huffman v. Wikle, (In Re Staff Mortgage and Investment Corp.), 550 F.2d 1228, 21 UCC Rep. 887 (9th Cir.1977); In Re Bruce Farley Corp., 612 F.2d 1197, 28 UCC Rep. 240 (9th Cir.1980). As stated in Official Comment" } ]

[ { "docid": "22634075", "title": "", "text": "an investigation and certification of representatives pursuant to § 9 (c) of the Act. Extensive hearings on this second stage took place in October, 1938, at which the Crystal City Union appeared and participated. On January 13, 1939, the Board issued its decision fixing the bargaining unit and certification of .representatives. The Board found that the Company’s production and maintenance employees throughout the entire flat glass division (with the exception of window glass cutters, clerical employees not directly connected with production, and supervisory employees) constitute an appropriate unit, and it certified the Federation as the exclusive representative of all the employees in the unit. This order, under our ruling in American Federation of Labor v. Labor Board, was not subject to direct judicial review under § 10 (f) of the Act. The Company, however, continued to assert that the Crystal City plant should be excluded from the unit, and refused to bargain with the Federation with respect to that group of employees. Accordingly, -about a month after its certification order, the Board issued a complaint in this proceeding, the third and pending stage of the labor dispute, aiding a refusal to bargain collectively in violation of 5§'8 (1) and (5). At the hearing on this complaint, at -which the Crystal City Union was permitted to intervene, the trial examiner excluded a certain offer of proof by it and the Company. For various reasons the Board found that the .exclusion was in part proper, and for the rest non-prejudieial. On the merits the Board, with one member dissenting, adhered to its original view that the Crystal City plant should be included in the unit and therefore found that the Company had committed an unfair labor practice. The Company and the Crystal City Union sought review of the Board’s decision in the Circuit Court of Appeals, which affirmed, and we brought the case here on certiorari. To reach a conclusion upon the complaint under consideration against the Company of unfair labor practices, violating § 8, subsections (1) and (5) of the National Labor Relations Act, the validity of the Board’s decision as" } ]

[ { "docid": "18692552", "title": "", "text": "ZOBEL, District Judge. Northeast Utilities Service Corporation (the “Company”) petitions for review of a final order of the National Labor Relations Board (the “Board”). The Board eross-ap-plies for enforcement of that order, pursuant to sections 10(e) and (f) of the National Labor Relations Act (the “Act”), 29 U.S.C.A. § 160(e), (f) (West 1973). The only issue before this Court is whether the Board had substantial record evidence to conclude that certain of the Company’s employees, known as Pool Coordinators (“PCs”) and Senior Pool Coordinators (“SPCs”), are neither “supervisors” within section 2(11) of the Act nor managerial employees and therefore may constitute a collective bargaining unit. I. International Brotherhood of Electrical Workers, Local 455 (the “IBEW”), filed a petition with the Board seeking to be certified as exclusive collective bargaining representative of the PCs and SPCs. The Company opposed the petition on the ground that these employees were exempt from the Act because of their supervisory and managerial status. Based on evidence presented at pre-election hearings, the regional director found that neither PCs nor SPCs were supervisors or managers. Accordingly, she directed an election. The Company filed a timely “Request for Review” which the Board rejected as raising no substantial issues warranting reconsideration. The IBEW prevailed in the election held May 11, 1993, whereupon the regional director certified it as the collective bargaining representative of the PCs and SPCs. The Company declined the IBEW’s subsequent request to bargain collectively; it still insists ed that the PCs and'SPCs were supervisors and managers exempt from the proposed bargaining unit. On June 17, 1993, the IBEW filed an unfair labor practice charge. The Board’s general counsel then issued a complaint and amended complaint on the charge that the Company refused to bargain in violation of section 8(a)(1) and (5) of the Act, 29 U.S.C.A. § 158(a)(1), (5) (West 1973). He subsequently moved to transfer the proceedings to the Board and for summary judgment. On November 24, 1993, the Board granted the motion, as it found no new evidence or special circumstances that would cause it to reexamine its representation decision. It therefore concluded that" }, { "docid": "14768387", "title": "", "text": "the Complaint the Company admitted its refusal to bargain and challenged the validity of the Union’s certification on the same grounds it had previously raised in the representation proceeding. Upon motion of the General Counsel for summary judgment, the Trial Examiner, noting the absence of newly discovered evidence or extraordinary circumstances, concluded that he was bound by the findings of the Board in the representation proceed ing and that no litigable issue was before him. Accordingly, he granted the motion for summary judgment and entered his findings and conclusions. The Board, adopting the Examiner’s decision, found that the Company had violated Section 8(a) (5) and (1) of the Act by refusing to bargain with the duly certified representative of its employees. The Board therefore issued an order requiring the Company to cease and desist from the unfair labor practice and from otherwise interfering with the efforts of the Union to negotiate for and represent its employees. The order further required the Company to bargain collectively upon request, to post appropriate notices and provided that the initial year of certification would run from the date the Company commenced to bargain in good faith. From this order the Company has petitioned this Court for review, and the Board has cross-petitioned to have its order enforced. With respect to the Company’s contention that it was denied a hearing at the representation proceeding, it is now a well-settled principle that the Board need not hold hearings on objections arising out of an election unless it appears that the objections raised present “substantial and material factual issues.” 29 C.F.R. 102.69(c) (e). “This qualified right to a hearing is designed to resolve questions expeditiously preliminary to the establishment of the bargaining relationship. * * * ” N. L. R. B. v. Golden Age Beverage Co., 415 F.2d 26, 32 (5th Cir. 1969). The burden is on the party who seeks to overturn the result of an election, not upon the Board, to show with specific evidence that the election was not fairly conducted. N. L. R. B. v. Mattison Machine Works, 365 U.S. 123, 81 S.Ct." }, { "docid": "15659390", "title": "", "text": "its classification of the Operator/Runners and that the Company violated section 8(a)(5) of the Act when it flatly refused to bargain with the Union. The Company argues that its refusal to bargain was justified because the inclusion of Operator/Runners within the certified unit was erroneous and inconsistent with the Board’s classification of Operator/Runners at other Company facilities. These conflicting contentions do not stem simply from different readings of the same record, however. Instead, they reflect a disagreement over what evidence should have been considered by the Board when it reviewed the certification question in the context of the general refusal to bargain charge. In granting General Counsel’s motion for summary judgment on that charge, the AU refused to consider new evidence on the certification issue produced at the unfair labor practice hearing and instead took into account only the record compiled at the original representation hearing. Contending that the ALJ took the right course, the Board relies primarily on its regulation, 29 C.F.R. § 102.67(f), which provides in pertinent part that the denial of a request for Board review of a regional director’s unit determination shall “constitute an affirmance of the regional director’s action which shall also preclude relitigating any such issues in any related subsequent unfair labor practice hearing.” According to the Board, this provision protects the integrity of the administrative process by requiring a party to produce all available evidence relevant to the unit certification issue at the time of the original representation hearing rather than attempting to relitigate the unit issue in the context of the subsequent unfair labor practice hearing. On its theory that the record on review in this court is therefore limited on this issue to the evidence produced at the original representation hearing, the Board argues that there is substantial evidence to support the conclusion that the Operator/Runners at the Company facilities were not guards. The Board cites, for example, evidence at the representation hearing that Operator/Runners, when responding to a burglar alarm, were not encouraged to assist police in capturing the intruders and that Operator/Runners in such cases generally waited for the" }, { "docid": "15410512", "title": "", "text": "Memorandum in Opposition to the summary judgment motion did not assert that there was any newly discovered evidence relative to whether the watch engineers and assistant air conditioning engineers were supervisors but contended only that the Board’s unit determination was incorrect. Noting the absence of an allegation of special circumstances, the Board refused to reexamine the determination made in the representation proceeding, concluded that there were no material factual issues requiring a hearing, and granted the General Counsel’s motion for summary judgment. Accordingly, the Board found Metropolitan’s admitted refusal to bargain violative of Section 8(a) (5) and (1) of the Act, and ordered Metropolitan to bargain with Local 30 upon request and to post an appropriate notice. It is this order that the Board petitions us to enforce. Under Section 9(b) of the Labor-Management Relations Act, 1947, the only persons who may properly be included by the Board in the units it deems appropriate for collective bargaining purposes are “employees.” Excluded from the term “employee” is “any individual employed as a supervisor.” Labor-Management Relations Act, 1947, § 2(3), 29 U.S.C. § 152(3). Section 2(11) of the Act defines “supervisor” as * * * any individual having authority, in the interest of the employer, to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline other employees, or responsibly to direct them, or to adjust their grievances, or effectively to recommend such action, if in connection with the foregoing the exercise of such authority is not of a merely routine or clerical nature, but requires the use of independent judgment. Persons who fall within this classification of “supervisors” are consequently not entitled to the protections accorded “employees” under the Act and their employers are under no obligation to bargain with a union if the union’s bargaining unit includes such persons. Therefore, if the persons whose status Metropolitan questions are supervisors, as defined by the Act, Metropolitan is not guilty of any Section 8(a) (5) and (1) unfair labor practice, and the Board’s order should not be enforced by this court. The question of whether the watch engineers and the" }, { "docid": "1510968", "title": "", "text": "written verbal correction report. The second step of the progressive discipline procedure is the issuance of a written warming. The third step is suspension without pay, and the final step is discharge. As noted earlier, RNs and LPNs complete the first step in the disciplinary process by filing written verbal correction reports. On January 16, 1996, the Union sought certification as the exclusive bargaining representative of the LPNs and RNs at Point Pleasant. After a hearing, the Director determined that an election should be held in which the RNs and LPNs^ would have an opportunity to vote for unión representation. In the election held on June 20, 1996, eleven nurses voted. Nine nurses voted for representation in a unit containing both RNs and LPNs. .Shortly thereafter, the Director certified the bargaining unit as the exclusive collective bargaining representative of the Point Pleasant nurses. II. After the Union was certified at each facility, it requested that Glenmark enter into negotiations. Glenmark, so that it could obtain judicial review of the certification, refused. The Union thereafter filed unfair labor practice charges. The NLRB’s General Counsel brought unfair labor practice claims against Glenmark based on its refusal to bargain. The Board granted summary judgment against Glenmark because “[a]II representation issues raised by [Glenmark] wfere or could have been litigated at the prior representation proceeding.” (J.A. at 1127, 1131.) Glenmark filed petitions seeking review of the Board’s final orders determining that their refusal to bargain -with the Union at its Cedar Ridge and Point Pleasant facilities was violative of § 8(a)(1) and (a)(5) of the Act. See 29 U.S.C.A. § 158(a)(1), (a)(5) (West 1973). The NLRB cross-petitioned for enforcement of its orders. III. The question of whether a specific employee is a supervisor is a particularly important one. Wdiile the Act protects the rights of certain employees to unionize, see 29 U.S.C.A. § 157 (West 1973), it does not extend those rights to employees who meet the definition of supervisor set out in § 2(11), see 29 U.S.C.A. § 152(3) (West 1973). Therefore, if the nurses at each facility meet the definition of supervisor," }, { "docid": "15358965", "title": "", "text": "be overruled and that the Union be certified as the employees’ bargaining representative. On April 8, 1988, the Board adopted the hearing officer’s findings and certified the Union as the employees’ bargaining representative. By letter dated May 3, 1988, the Union requested that the Company furnish it with information concerning the employees’ wages and employment. By letter dated May 18, 1988, the Company refused to furnish the requested information and further stated that it did not accept the Union as the employees’ bargaining representative. The Union filed a refusal to bargain charge against the Company on June 6, 1988, and on June 29, 1988, the General Counsel issued a complaint alleging that the Company’s actions constituted an unfair labor practice. In its answer, the Company admitted that it had refused to bargain with the Union, but denied that the Union was properly certified, and set forth affirmative defenses relating to the certification election. On August 5, 1988, the General Counsel filed a motion for summary judgment with the Board. On August 10, 1988, the Board transferred the matter to itself and issued a Notice to Show Cause why the General Counsel’s motion for summary judgment should not be granted. The Company filed a response to the notice which essentially repeated the defenses it had previously raised. On October 20, 1988, the Board issued a Decision and Order granting the General Counsel’s motion for summary judgment. The Board found that all the issues raised by the Company were or could have been litigated in the prior representation proceeding and that the Company did not offer to adduce at a hearing any newly discovered or previously unavailable evidence, nor did it allege any special circumstances that would require the Board to re-examine the decision to certify the Union as the employees’ bargaining representative. The Board ordered the Company to cease and desist from: (1) refusing to bargain with the Union, (2) refusing to provide the Union with relevant information, and (3) interfering with employees in the exercise of their section VII rights. This timely appeal followed. As the claimed unfair labor practice" }, { "docid": "18824522", "title": "", "text": "that dispatchers made “recommendations” for permanent employee status for probationary employees, to the extent that silence by the dispatcher regarding the employee would be considered a positive “recommendation.” Procedural On May 1, 1991, Teamsters Local 120 of the International Brotherhood of Teamsters, Chauffeurs, Warehouseman & Helpers of America, AFL-CIO (the Union), filed a petition with the Board for certification as the collective bargaining representative of a bargaining unit consisting of both the dispatchers and courier-guards at the facility. During a hearing before the Board on May 14, 1991, the Company contended that its courier-guards were statutory guards within section 9(b)(3) of the Act, which would exclude them from representation in a bargaining unit consisting of employees other than guards. The Company also contended that the dispatchers were statutory supervisors as defined in section 2(11) of the Act, which would remove them from the protection of the Act. On June 7,1991, the Board’s Regional Director issued his decision finding the bargaining unit appropriate and directing an election. On June 20, 1991, the Company filed a request for review of the Regional Director’s decision which was denied by the Board on July 15,1991, because it raised no substantial issues warranting review. A secret ballot election was held in the certified unit. The Union was elected as collective bargaining representative and was certified on July 26, 1991. The Company thereafter refused to bargain and an unfair labor practice charge was filed by the Union on October 16, 1991, alleging a violation of sections 8(a)(1) and 8(a)(5) of the Act. The General Counsel subsequently filed a motion for summary judgment, which was followed by a transfer of the proceeding to the Board and an issuance of a notice to show cause why the motion should not be granted. The Company filed a response admitting its refusal to bargain and asserting the invalidity of the certification due to its contention that the courier-guards were statutory guards within the meaning of section 9(b)(3) of the Act. On January 21, 1992, the Board granted the General Counsel’s motion for summary judgment, finding a violation of sections 8(a)(1)" }, { "docid": "12197476", "title": "", "text": "the Act. [130 N.L.R.B. at 115, n. 2.] Prior to the Board’s Niederriter decision, Congress, aware of the huge backlog of cases confronting the Board, due in large part to the number of representation petitions on file, amended the Taft-Hartley Act to allow the Board to delegate to its Regional Directors the power to make unit determinations, to order elections and to certify the results thereof, subject to discretionary review by the Board. In 1961, subsequent to Niederriter, the Board promulgated regulations regarding such delegation. Section 102.67(b) of the Board’s rules provides that any party to a representation proceeding may file a request for review by the Board within ten days after the decision of the Regional Director. Section 102.67(f), relating to failure to seek or accord such review by the Board, provides as follows: The parties may, at any time, waive their right to request review. Failure to request review shall preclude such parties from relitigating, in any related subsequent unfair labor practice proceeding, any issue which was, or could have been, raised in the representation proceeding. Denial of a request for review shall constitute an affirmance of the regional director’s action which shall also preclude relitigating any such issues in any related subsequent unfair labor practice proceeding. [29 C.F.R. 133 (1966).] This rule carries over the earlier Board practice precluding relitigation in a “related” unfair labor practice hearing of an issue determined in a representation hearing, even though now the representation determination may have been made by the Regional Director. The rule is clear enough where the company seeks to justify an alleged refusal to bargain on the ground that the earlier unit determination is incorrect. Here, however, the unfair labor practice charge relating to the activities of the floorladies is not a charge of refusal to bargain, nor is it either established by or dependent upon a finding of refusal to bargain. Indeed, coercion by supervisors is unlawful even where the union does not represent a majority. The situation is one that comes within the scope of Niederriter. Board counsel emphasizes that Niederriter preceded the issuance of" }, { "docid": "2054040", "title": "", "text": "the objections to the election, denied the hospital’s request for an evidentiary hearing, and certified the union as the exclusive bargaining representative for the employees in the unit. The hospital applied to the Board for review of the regional director’s supplemental decision and for reconsideration of the previous ruling on the appropriateness of the unit. The Board denied the application for review on April 2, 1980. The hospital refused to bargain with the union in order to challenge its certification as bargaining representative on the grounds that the bargaining unit of service, maintenance and technical employees was inappropriate and that conduct by the union had destroyed the “laboratory conditions” for a free election. A complaint was issued against the hospital, alleging a refusal to bargain in violation of §§ 8(a)(5) and (1) of the National Labor Relations Act, 29 U.S.C. §§ 158(a)(5) and (1). In answering the complaint, the hospital admitted the refusal to bargain, but denied it had committed an unfair labor practice, contending that the bargaining unit was inappropriate and that the union had engaged in impermissible conduct prior to the election. The general counsel filed a motion for summary judgment with the Board. On August 11, 1980, the Board issued its decision and order granting summary judgment in favor of the general counsel and against Vicksburg Hospital. The Board determined that the issues raised by the hospital had been previously decided and resolved against it in the underlying representation case and that the hospital had not presented any newly discovered evidence or made a showing of special circumstances requiring a reexamination of the Board’s rulings in the representation case. The Board, therefore, determined that there were no material issues of fact to be litigated in the unfair labor practice proceeding and, accordingly, held that the hospital had violated §§ 8(a)(5) and (1) of the National Labor Relations Act by its refusal to bargain with the certified representative of the employees in the unit found appropriate. The Board’s order requires the hospital to bargain with the union as the exclusive representative of all employees in the appropriate unit" }, { "docid": "910618", "title": "", "text": "the Sisters of the Order of St. Francis, a Roman Catholic Order. In 1979 the union filed a representation petition with the NLRB, seeking certification as the exclusive bargaining representative of all nonsupervisory registered nurses employed by the hospital. Following a hearing at which St. Anthony unsuccessfully challenged the appropriateness of the requested bargaining unit, the Board’s regional director issued a direction of election in the registered nurse unit. The Board denied St. Anthony’s request for review. A majority of the eligible employees voted in favor of representation by the union, following which the director certified the union as the exclusive collective bargaining representative for the hospital’s professional registered nurse employees. St. Anthony has obtained judicial review of the unit determination by refusing to bargain with the union. See Magnesium Casting Co. v. NLRB, 401 U.S. 137, 139, 91 S.Ct. 599, 600, 27 L.Ed.2d 735 (1971); Osteopathic Hosp. Founders Ass’n v. NLRB, 618 F.2d 633, 640 (10th Cir. 1980). In its answer to the complaint issued by the General Counsel of the NLRB, St. Anthony claimed the Board’s assertion of jurisdiction was unconstitutional on the ground that the hospital is a religious organization exempt from intrusive governmental regulation under the First Amendment. It also denied that the union was a proper labor organization under the NLRA, challenged the appropriateness of the unit determination, and objected to the inclusion of Staff Nurse I employees in the bargaining unit, claiming they were supervisors within the meaning of 29 U.S.C. § 152(11). The Board granted the General Counsel’s motion for summary judgment, ordering St. Anthony to cease and desist from its unfair labor practices and directing it to bargain collectively with the union. The case is before this Court on St. Anthony’s petition for review of the Board’s order and the Board’s application for enforcement. The union is present as intervenor. The record indicates that St. Anthony failed to object to jurisdiction during the representation proceeding and first asserted its First Amendment challenge to jurisdiction in the unfair labor practice proceedings before the Board. Apparently relying on section 102.67(f) of its Rules and" }, { "docid": "22581804", "title": "", "text": "distributed two days before the election, and that numerous employees had been coerced into voting for the union. The Regional Director conducted an ex parte investigation and recommended that the company’s objections be overruled. The company requested that the Board set aside the election or hold a hearing on its exceptions to the Regional Director’s recommendations, but these requests were denied and the union was certified. Thereafter, the company refused to bargain with the union, and the union filed an unfair labor practice charge under Section 8(a) (5) of the National Labor Relations Act (29 U.S.C. § 158(a) (5)). A refusal to bargain is a common method for challenging the Board’s certification of a union since Board decisions in representation proceedings usually are not reviewable by the courts of appeals. N. L. R. B. v. Air Control Products of St. Petersburg, Inc., 5 Cir., 1964, 335 F.2d 245, and eases cited therein. See Neuhoff Brothers Packers, Inc. v. N. L. R. B., 5 Cir., 1966, 362 F.2d 611; Home Town Foods, Inc. v. N. L. R. B., 5 Cir., 1967, 379 F.2d 241. After the complaint was issued, the General Counsel filed a motion for summary judgment alleging “that there is no genuine or disputed issue as to any material fact,” contending that the issues in the representation proceeding had already been litigated. The company responded with certain offers of proof, but the Trial Examiner granted the General Counsel’s motion. The Board affirmed the Trial Examiner’s ruling. In order to obtain a hearing in a post-election representation proceeding, the objecting party must supply prima facie evidence, presenting “substantial and material factual issues,” which would warrant setting aside the election. 29 C.F.R. § 102.69(c). This administrative standard is also the constitutional standard under the due process clause. Classically, a hearing is required where it is necessary to preserve a party’s rights. As Chief Judge Brown of this Circuit has formulated the doctrine in N. L. R. B. v. Air Control Products of St. Petersburg, Inc., 5 Cir., 1964, 335 F.2d 245, 249: “If there is nothing to hear, then a hearing" }, { "docid": "18824523", "title": "", "text": "for review of the Regional Director’s decision which was denied by the Board on July 15,1991, because it raised no substantial issues warranting review. A secret ballot election was held in the certified unit. The Union was elected as collective bargaining representative and was certified on July 26, 1991. The Company thereafter refused to bargain and an unfair labor practice charge was filed by the Union on October 16, 1991, alleging a violation of sections 8(a)(1) and 8(a)(5) of the Act. The General Counsel subsequently filed a motion for summary judgment, which was followed by a transfer of the proceeding to the Board and an issuance of a notice to show cause why the motion should not be granted. The Company filed a response admitting its refusal to bargain and asserting the invalidity of the certification due to its contention that the courier-guards were statutory guards within the meaning of section 9(b)(3) of the Act. On January 21, 1992, the Board granted the General Counsel’s motion for summary judgment, finding a violation of sections 8(a)(1) and 8(a)(5) of the Act and ordering the Company to bargain with the Union. It is this order that the Company petitions this court to review; the General Counsel seeks enforcement of the order. STANDARD OF REVIEW The Company has refused to bargain with the Union in order to obtain judicial review of the certification decision which was made by the Board. This is the accepted method of obtaining such review, as a certification granted pursuant to section 9(c) of the Act is not a final order subject to review by this court. See, e.g., AFL v. NLRB, 308 U.S. 401, 404-07, 60 S.Ct. 300, 301-03, 84 L.Ed. 347 (1940); Waverly-Cedar Falls Health Care Ctr., Inc. v. NLRB, 933 F.2d 626, 628 (8th Cir.1991) {Waverly). An order to bargain, however, granted by the Board in an unfair labor practice proceeding, is a final order which can be appealed under the Act. See 29 U.S.C. § 160(e), (f). The Company may raise the alleged erroneous certification decision made by the Board as an affirmative defense to" }, { "docid": "8095730", "title": "", "text": "AINSWORTH, Circuit Judge: This case is before the Court on petition of the National Labor Relations Board to enforce an order to bargain against Capitan Drilling Company, Inc. (Employer). On August 16, 1966, pursuant to a stipulation for a consent election, a representation election took place at four different locations, and Local 826 of the International Union of Operating Engineers, AFL-CIO (Union), prevailed by a vote of 13 to 5. On August 19, 1966, the Employer filed objections to the election, alleging, inter alia, that when the balloting was completed at the Sterling County, Texas, location, the ballot box was not properly sealed by the Agent of the Board who had custody of the box pending the count of the ballots the next morning. Specifically, the Company alleged that one of the seams on the ballot box was not sealed with masking tape and that thus there was enough space to insert or remove ballots. There were no allegations, however, that the Board Agent acted improperly or that interested persons actually removed or inserted ballots into the box. The Regional Director conducted an ex parte investigation of the Employer’s objections, 29 C.F.R. § 102.69(c), and concluded that they were without merit. The Board adopted the recommendations of the Regional Director and certified the Union, and subsequently, the Company refused to bargain, again asserting that the ballot boxes were not properly sealed. The Union then filed an unfair labor practice charge with the Board under Section 8(a) (5) of the National Labor Relations Act (29 U.S.C. § 158(a) (5)), and the Trial Examiner granted General Counsel’s motion for summary judgment, holding that, in the absence of newly discovered or previously unavailable evidence, the Employer could not relitigate issues previously decided in the representation proceeding. The Board adopted the Trial Examiner’s findings and ordered the Company to bargain with the Union. The Employer contends that the Board’s conclusions were not supported by substantial evidence, and that, in any event, the Board erred in failing to conduct an evidentiary hearing on its objections to the election. It is well settled in this Circuit" }, { "docid": "13278872", "title": "", "text": "November 1972, upon the Company’s refusal to bargain collectively with the Union over wages, hours and working conditions, the Union filed an unfair labor practice charge with the Board and on December 14, 1972, the Board issued a complaint against the Company. In its answer the Company challenged the validity of the original certification. It also alleged that subsequent events, specifically the termination of 10 out of the 15 employees who had been eligible to vote in the election for theft of the Company’s money and materials, made a revocation of certification proper, since there was a strong probability, as a result of the post-election turnover, that only a small fraction of those in the unit, and possibly more, would currently be represented by a bargaining agent of their choice if effect were given to the certification. On August 6, 1973, the Board, on motion for summary judgment by the Board’s General Counsel, held that the Company had violated § 8(a)(5) and (1) of the Act, 29 U.S.C. § 158(a)(5) and (1), by refusing to bargain collectively in good faith with the Union and ordered it to cease and desist from this unfair labor practice and to take affirmative action to carry out its bargaining duties under the Act. Since the order was issued on motion for summary judgment the sole issue we must decide, on the Company’s petition to review and set aside and upon the cross-petition of the Board to enforce the order, is whether the Company’s objections to the election or exceptions to the Regional Director’s Report warranted a hearing. We hold that they did. Discussion The Board first argues that the Company was not entitled to a hearing on the factual statements set forth in its objections since it failed to support them with written affidavits or other independent evidence. While the Board’s own rules do not suggest that affidavits or other evidence must be submitted when objections to an election are filed, those rules also state that “[t]he party filing objections shall, upon request, promptly furnish to the regional director the evidence available to it" }, { "docid": "15410511", "title": "", "text": "and forty-nine votes were cast in favor of Local 30 and twelve against representation. On July 28, 1966 the Regional Director certified Local 30 as the representative of the employees in the designated unit. Following the certification Local 30 requested recognition and bargaining. Metropolitan formally declined this request on September 15, 1966. Local 30 then filed with the Board an unfair labor practice charge and the General Counsel issued a complaint alleging that the refusal to recognize and to bargain violated Section 8(a) (5) and (1) of the Act. Metropolitan’s answer admitted the refusal to bargain, but asserted that the refusal was lawful because the Board’s determination that included the watch engineers and assistant air conditioning engineers in the bargaining unit was erroneous. The General Counsel thereupon moved for summary judgment on the ground that the only issue raised in defense had already been determined in the representation hearing adversely to Metropolitan. On December 6, 1966 the Board issued a Notice to Show Cause why the motion for summary judgment should not be granted. Metropolitan’s Memorandum in Opposition to the summary judgment motion did not assert that there was any newly discovered evidence relative to whether the watch engineers and assistant air conditioning engineers were supervisors but contended only that the Board’s unit determination was incorrect. Noting the absence of an allegation of special circumstances, the Board refused to reexamine the determination made in the representation proceeding, concluded that there were no material factual issues requiring a hearing, and granted the General Counsel’s motion for summary judgment. Accordingly, the Board found Metropolitan’s admitted refusal to bargain violative of Section 8(a) (5) and (1) of the Act, and ordered Metropolitan to bargain with Local 30 upon request and to post an appropriate notice. It is this order that the Board petitions us to enforce. Under Section 9(b) of the Labor-Management Relations Act, 1947, the only persons who may properly be included by the Board in the units it deems appropriate for collective bargaining purposes are “employees.” Excluded from the term “employee” is “any individual employed as a supervisor.” Labor-Management Relations Act," }, { "docid": "11813905", "title": "", "text": "OPINION OF THE COURT STALEY, Chief Judge. Petitioner, Warner Company, requests us to review and set aside a decision and order of the National Labor Relations Board determining that Warner’s “order takers” and “shippers” constitute an appropriate unit of employees for collective bargaining, and finding Warner Company guilty of an unfair labor practice by its refusal to bargain with the union certified by .the Board for the unit in question. The Board has cross-petitioned for enforcement of its order. The issue before us is whether there was substantial evidence adduced at the representation hearing to support the Board’s conclusion that the members of the unit were “employees” rather than “supervisors” within the meaning of Section 2(11) of the National Labor Relations Act, as amended, 29 U.S.C.A. § 152 (11). If the members are “supervisors” within Section 2(11), then Section 14(a) of the Act, as amended, 29 U.S.C.A. § 164(a) would relieve Warner Company of the duty to bargain with the certified bargaining representative of the unit. We hold that the members of the bargaining unit are “supervisors” and therefore the Board’s finding and order must be set aside and denied enforcement. The Warner Company is engaged in the building supplies business, including the sale of ready-mixed concrete, in the Greater Philadelphia market. The contested bargaining unit certified by the Board consists of persons who are employed at various distribution yards, and who generally are responsible for the receipt of orders and the delivery of Warner’s products. Known as “shippers,” “order takers,” “dry shippers,” and “shipper-order takers,” (hereinafter called “shippers”), these men translate the customer requests into completed sales by advising customers, scheduling deliveries, ordering the drivers to make deliveries, and generally maintaining control over the operations necessary to these functions. The members of the unit, where more than one is employed at a distribution yard, are required to work closely together and to perform work within each other’s nominal jurisdiction according to the particular demands of the work situation. In performing these functions, the shippers are responsible to a yard manager and must perform their jobs under the rules provided" }, { "docid": "8891468", "title": "", "text": "Board review the Regional Director’s decision, which was denied. Thereafter the Regional Director certified the Union as the bargaining representative but the company declined to bargain. The unfair labor practice charge was then filed by the Union with the Regional Director for refusal of the company to bargain and a complaint was issued which the company answered admitting its refusal to bargain but giving as its reason for refusal the improper certification of the Union because of alleged errors in the representation proceedings. The General Counsel for the Board filed a motion for summary judgment on the ground that the company’s answer raised only issues heretofore decided in the representation cases. The company moved to dismiss the motion for summary judgment. Both motions were referred to a trial examiner who denied the company’s motion and directed that within ten days it submit evidence, either newly discovered or unavailable at the time of the representation proceedings, which the company would offer for the record in any hearing held under the unfair labor practice complaint. The company failed to submit evidence, and on September 14, 1965, the trial examiner found “that the statutory violation alleged in the complaint is established by pleadings and that no litigable issue remains requiring a hearing for the purpose of taking evidence. Accordingly, the General Counsel’s motion for judgment on the pleadings is hereby granted.” Thereafter the Board adopted the trial examiner’s findings, conclusions and recommendations as its own. Respondent company claims that the summary judgment procedure was unauthorized either under the National Labor Relations Act or the Administrative Procedure Act (5 U.S.C. §§ 1001 et seq.). The company contends that it has never had an opportunity to present, either to the Board or one of its trial examiners, in a formal proceeding, the facts on which it relies to sustain its objections to the second election in which the Union prevailed nor has it been confronted in such a formal proceeding with the evidence on which the Regional Director relied to set aside the first election which the company had won. Representation proceedings do not come" }, { "docid": "5391777", "title": "", "text": "continued to assert that the collective bargaining unit was inappropriate and that the Union was certified in error because (1) the Board denied the hospital an opportunity to present evidence that extraordinary circumstances made the unit inappropriate; (2) under this Court’s controlling precedent, “skilled maintenance units” are inappropriate; and (3) the Board incorrectly affirmed the Regional Director’s decision to dismiss St. Margaret’s objections to conduct affecting the election without conducting a hearing on those objections. On March 6, 1992, General Counsel for the NLRB moved for summary judgment arguing, inter alia, that it was not proper to relitigate; in an unfair labor practice proceeding, issues that were raised or could have been raised in a prior representation proceeding. On March 11, 1992, the Board postponed the hearing on the unfair labor practice charge and ordered St. Margaret to show cause why the General Counsel’s motion for summary judgment should not be granted. On March 31, 1992, St. Margaret responded, again relying upon the inappropriateness of the unit and the denial of a hearing on its objections to the election. On April 15, 1992, the Board granted summary judgment in favor of the General Counsel, concluding that St. Margaret had violated sections 8(a)(1) and (5) of the Act by refusing to bargain with the Union. The Board found that all certification issues raised by St. Margaret “were or could have been litigated in the prior representation proceeding” and that St. Margaret “does not offer to adduce at a hearing any newly discovered and previously unavailable evidence [or] ... allege any special circumstances that would require the Board to reexamine the decision made in the representation proceeding.” App. at 184a. On April 23, 1992, St. Margaret filed a timely petition for review of the Board’s order in this Court. The Board filed a cross-petition for enforcement of the order on May 26,1992. This Court permitted the Union to intervene on both petitions. II. Jurisdiction and Standard of Review The Board had jurisdiction over the unfair labor practice charges pursuant to 29 U.S.C.A. § 160(a), (b) (West 1973). This Court has jurisdiction to" }, { "docid": "59364", "title": "", "text": "results. The regional director’s findings were made without resort to evidentiary hearings. The Company then sought unsuccessfully to have its objections reviewed by the Board. 'At this point, the Union demanded that the Company commence collective bargaining; the Company refused. An unfair labor practice charge alleging that the Company had violated section 8(a) (5) of the National Labor Relations Act, was filed and a complaint issued. The Company’s answer raised as defenses the issues posed and resolved by the regional director’s disposition of the original objections. Counsel for the Board then moved for summary judgment, arguing that all the issues raised had previously been litigated in the representation proceeding and should not be relitigated in an unfair labor practice proceeding. The Company responded that, while no new issue existed, to grant a summary judgment would effectively deny the Company its due-process protections since no hearing had ever been held on its original objections. The Board, in granting summary judgment, took official notice of the regional director’s investigation into the Company’s objections at the representation proceeding and ruled that these issues had been adequately resolved. Ac cordingly, the Board found that the Company’s refusal to bargain with the certified representative of its employees violated sections 8(a) (5) and (1) of the act. Based upon that finding, an order to cease and desist from the unlawful conduct was issued. The Company’s appeal from that order is presently before us. The basic issue before this court is whether the Board abused its discretion in refusing to set aside the election without holding an evidentiary hearing on the Company’s objections. Within that broad question, the Company articulates two specific issues which, if resolved favorably to the Company, would compel reversal of the Board’s order. First, the Company argues that the election itself was invalid due to certain practices engaged in by the Union; and second, that the review procedure which failed to provide for a hearing into the factual basis for the objections raised was inadequate. I. In challenging the validity of the election, the Company raises six specific objections to Union activity: (1)" }, { "docid": "7759530", "title": "", "text": "filed an unfair labor practice charge based upon this refusal to bargain. As a result of the Company’s rejecting the Union’s request to bargain, the Union filed an unfair labor practice charge on December 2, 1976. The Regional Director issued a complaint. In its answer the Company admitted a refusal to bargain and also denied the request of the Union for certain information relative to the collective bargaining issue. The Company stood on its position that the certification was invalid. Following the Company’s action standing on its position of refusing to bargain, the General Counsel filed a motion with the Board for summary judgment based on the proposition that there were no issues of fact which warranted a hearing. The proceeding was then transferred to a panel of three Board members together with a notice to show cause why the motion for summary judgment should not be granted. The Company again stated its position challenging the validity of the election and the validity of the certification. The General Counsel’s complaint alleged that Kustom had engaged in unfair labor practices in violation of § 8(a)(5) and (1) and § 2(6) and (7) of the Act. The complaint alleged in substance that on October 29,1976, following a Board election, the Union was duly certified as the exclusive bargaining representative of Kustom employees in the appropriate unit, but that the petitioner Kustom had refused and continued to refuse to bargain collectively and to furnish certain information, notwithstanding a request by the Union. Petitioner filed an answer to the complaint admitting part of, it and denying part of it. As an affirmative defense, petitioner alleged that the Board’s certification of the Union was invalid for the reason that it was based on a revised tally of ballots including the ballots of persons not entitled to vote because their employment had been terminated on December 20, 1974, six months prior to the election. A further defense was that about 62 percent of the employees in the unit had been hired since the election so that the majority status is now in question; that, therefore, the" } ]

[ { "docid": "21385517", "title": "", "text": "District Court agreed, that it is virtually impossible to predict future criminal conduct with any degree of accuracy. Moreover, they say, the statutory standard fails to channel the discretion of the Family Court judge by specifying the factors on which he should rely in making that prediction. The procedural protections noted above are thus, in their view, unavailing because the ultimate decision is intrinsically arbitrary and uncontrolled. Our cases indicate, however, that from a legal point of view there is nothing inherently unattainable about a prediction of future criminal conduct. Such a judgment forms an important element in many decisions, and we have specifically re jected the contention, based on the same sort of sociological data relied upon by appellees and the District Court, “that it is impossible to predict future behavior and that the question is so vague as to be meaningless.” Jurek v. Texas, 428 U. S. 262, 274 (1976) (opinion of Stewart, Powell, and Stevens, JJ.); id., at 279 (White, J., concurring in judgment). We have also recognized that a prediction of future criminal conduct is “an experienced prediction based on a host of variables” which cannot be readily codified. Greenholtz v. Nebraska Penal Inmates, 442 U. S. 1, 16 (1979). Judge Qui-nones of the Family Court testified at trial that he and his colleagues make a determination under § 320.5(3)(b) based on numerous factors including the nature and seriousness of the charges; whether the charges are likely to be proved at trial; the juvenile’s prior record; the adequacy and effectiveness of his home supervision; his school situation, if known; the time of day of the alleged crime as evidence of its seriousness and a possible lack of parental control; and any special circumstances that might be brought to his attention by the probation officer, the child’s attorney, or any parents, relatives, or other responsible persons accompanying the child. Testimony of Judge Quinones, App. 254-267. The decision is based on as much information as can reasonably be obtained at the initial appearance. Ibid. Given the right to a hearing, to counsel, and to a statement of reasons," } ]

[ { "docid": "23346843", "title": "", "text": "the basis of the qualitative differences in maturity between children and adults, see Schall v. Martin, 467 U. S. 253, 265-267 (1984); Thomp son v. Oklahoma, 487 U. S. 815, 853-854 (1988) (O’Connor, J., concurring in judgment) (collecting cases); Stanford v. Kentucky, 492 U. S. 361, 384 (1989) (Brennan, J., dissenting), and not without reason. Age is a rough but fair approximation of maturity and judgment, and a State has an interest in seeing that a child, when confronted with serious decisions such as whether or not to abort a pregnancy, has the assistance of her parents in making the choice. If anything is settled by our previous cases dealing with parental notification and consent laws, it is this point. See Bellotti II, 443 U. S., at 640-641 (opinion of Powell, J.); Matheson, 450 U. S., at 409-411; id., at 422-423 (Stevens, J., concurring in judgment). Protection of the right of each parent to participate in the upbringing of her or his own children is a further discrete interest that the State recognizes by the statute. The common law historically has given recognition to the right of parents, not merely to be notified of their children’s actions, but to speak and act on their behalf. Absent a showing of neglect or abuse, a father “possessed the paramount right to the custody and control of his minor children, and to superintend their education and nurture.” J. Schouler, Law of Domestic Relations 337 (3d. ed. 1882); see also 1 W. Blackstone, Commentaries *452-*453; 2 J. Kent, Commentaries on American Law *203-*206; G. Field, Legal Relations of Infants 63-80 (1888). In this century, the common law of most States has abandoned the idea that parental rights are vested solely in fathers, with mothers being viewed merely as agents of their husbands, cf. ante, at 446, n. 32; it is now the case that each parent has parental rights and parental responsibilities, see W. Keeton, D. Dobbs, R. Keeton, & D. Owen, Prosser and Keeton on Law of Torts, ch. 4, § 18, p. 115 (5th ed. 1984). Limitations have emerged on the prerogatives" }, { "docid": "13146330", "title": "", "text": "2851 (Stevens, J., concurring) (footnote omitted). See also Matheson, 450 U.S. at 409-10, 101 S.Ct. at 1171-72; Bellotti II, 443 U.S. at 640-41, 99 S.Ct. at 3046-47 (plurality opinion). The Supreme Court further reasons that: “The medical, emotional, and psychological consequences of an abortion are serious and can be lasting; this is particularly so when the patient is immature. An adequate medical and psychological case history is important to the physician. Parents case history is important to the physician. Parents can provide medical and psychological data, refer the physician to other sources of medical history, such as family physicians, and authorize family physicians to give relevant data.” Matheson, 450 U.S. at 411, 101 S.Ct. at 1172 (footnote omitted). The Supreme Court, fully aware of the need to protect the minor unemancipated child from making an immature, uninformed decision of whether or not to abort her pregnancy, has approved of, and placed its imprimatur in no uncertain terms upon, state statutes requiring parental consultation in the abortion decision of a minor child. According to the Court, because: “immature minors often lack the ability to make fully informed choices that take account of both immediate and long-range consequences, a State reasonably may determine that parental consultation often is desirable and in the best interest of the minor. It may further determine, as a general proposition, that such consultation is particularly desirable with respect to the abortion decision — one that for some people raises profound moral and religious concern.” Bellotti II, 443 U.S. at 640, 99 S.Ct. at 3046 (plurality opinion) (footnotes omitted). See also Matheson, 450 U.S. at 409, 101 S.Ct. at 1171. Added to the minor child’s need to consult with her parents to make a mature, informed abortion decision, is the parents’ constitutional right to supervise, direct, and properly control the upbringing of their children. An essential component of the parents’ right to direct the rearing of their children is the opportunity to participate in their daughter’s important decisions, including the choice of whether or not to undergo an abortion procedure. Thus, to protect not only the minor child" }, { "docid": "22124022", "title": "", "text": "S., at 188-189; Bellotti II, 443 U. S., at 627, n. 5 (plurality opinion). The Ohio Juvenile Court has jurisdiction over any child “alleged to be a juvenile traffic offender, delinquent, unruly, abused, neglected, or dependent.” Ohio Rev. Code Ann. §2151.23 (Supp. 1982). The only category that arguably could encompass a pregnant minor desiring an abortion would be the “neglected” child category. A neglected child is defined as one “[wjhose parents, guardian or custodian neglects or refuses to provide him with proper or necessary subsistence, education, medical or surgical care, or other care necessary for his health, morals, or well being.” § 2151.03. Even assuming that the Ohio courts would construe these provisions as permitting a minor to obtain judicial approval for the “proper or necessary . . . medical or surgical care” of an abortion, where her parents had refused to provide that care, the statute makes no provision for a mature or emancipated minor completely to avoid hostile parental involvement by demonstrating to the satisfaction of the court that she is capable of exercising her constitutional right to choose an abortion. On the contrary, the statute requires that the minor’s parents be notified once a petition has been filed, §2151.28, a requirement that in the case of a mature minor seeking an abortion would be unconstitutional. See H. L. v. Matheson, 450 U. S., at 420 (Powell, J., concurring); id., at 428, n. 3 (MARSHALL, J., dissenting). In particular, we have emphasized that a State’s interest in protecting immature minors and in promoting family integrity gives it a special interest in ensuring that the abortion decision is made with understanding and after careful deliberation. See, e. g., H. L. v. Matheson, 450 U. S., at 411; id., at 419-420 (Powell, J., concurring); id., at 421-424 (Stevens, J., concurring in judgment). A State is not always foreclosed from asserting an interest in whether pregnancies end in abortion or childbirth. In Maher v. Roe, 432 U. S. 464 (1977), and Harris v. McRae, 448 U. S. 297 (1980), we upheld governmental spending statutes that reimbursed indigent women for childbirth but" }, { "docid": "23346801", "title": "", "text": "with only one parent. Ibid. Given its broad sweep and its failure to serve the purposes asserted by the State in too many cases, I join the Court’s striking of subdivision 2. II In a series of cases, this Court has explicitly approved judi cial bypass as a means of tailoring a parental consent provision so as to avoid unduly burdening the minor’s limited right to obtain an abortion. See Bellotti v. Baird, 428 U. S. 132, 147-148 (1976); Planned Parenthood of Central Mo. v. Danforth, 428 U. S. 52 (1976); Bellotti II, 443 U. S., at 642-644 (opinion of Powell, J.). In Danforth, the Court stated that the “primary constitutional deficiency lies in [the notification statute’s] imposition of an absolute limitation on the minor’s right to obtain an abortion. ... [A] materially different constitutional issue would be presented under a provision requiring parental consent or consultation in most cases but providing for prompt (i) judicial resolution of any disagreement between the parent and the minor, or (ii) judicial determination that the minor is mature enough to give an informed consent without parental concurrence or that abortion in any event is in the minor’s best interest. Such a provision would not impose parental approval as an absolute condition upon the minor’s right but would assure in most instances consultation between the parent and child.” 428 U. S., at 90-91. Subdivision 6 passes constitutional muster because the interference with the internal operation of the family required by subdivision 2 simply does not exist where the minor can avoid notifying one or both parents by use of the bypass procedure. Justice Marshall, with whom Justice Brennan and Justice Blackmun join, concurring in part, concurring in the judgment in part, and dissenting in part. I concur in Parts I, II, IV, and VII of Justice Stevens’ opinion for the Court in No. 88-1309. Although I do not believe that the Constitution permits a State to require a minor to notify or consult with a parent before obtaining an abortion, compare ante, at 445, with infra, at 463-472, I am in substantial agreement with" }, { "docid": "23346749", "title": "", "text": "U. S. 584, 603-604 (1979); Planned Parenthood of Central Mo. v. Danforth, 428 U. S., at 95 (White, J., concurring in part and dissenting in part); id., at 102-103 (Stevens, J., concurring in part and dissenting in part), extends also to the minor’s decision to terminate her pregnancy. Although the Court has held that parents may not exercise “an absolute, and possibly arbitrary, veto” over that decision, Danforth, 428 U. S., at 74, it has never challenged a State’s reasonable judgment that the decision should be made after notification to and consultation with a parent. See Ohio v. Akron Center for Reproductive Health, post, at 510-511; Akron v. Akron Center for Reproductive Health, Inc., 462 U. S. 416, 428, n. 10, 439 (1983); H. L. v. Matheson, 450 U. S., at 409-410; Bellotti II, 443 U. S., at 640-641 (opinion of Powell, J.); Danforth, 428 U. S., at 75. As Justice Stewart, joined by Justice Powell, pointed out in his concurrence in Danforth: “There can be little doubt that the State furthers a constitutionally permissible end by encouraging an unmarried pregnant minor to seek the help and advice of her parents in making the very important decision whether or not to bear a child.” Id., at 91. Parents have an interest in controlling the education and upbringing of their children but that interest is “a counterpart of the responsibilities they have assumed.” Lehr v. Robertson, 463 U. S. 248, 257 (1983); see also Parham, 442 U. S., at 602 (citing 1 W. Blackstone, Commentaries *447; 2 J. Kent, Commentaries on American Law *190); Pierce v. Society of Sisters, 268 U. S. 510, 535 (1925). The fact of biological parentage generally offers a person only “an opportunity ... to develop a relationship with his offspring.” Lehr, 463 U. S., at 262; see also Caban v. Mohammed, 441 U. S. 380, 397 (1979) (Stewart, J., dissenting). But the demonstration of commitment to the child through the assumption of personal, financial, or custodial responsibility may give the natural parent a stake in the relationship with the child rising to the level of a" }, { "docid": "22561197", "title": "", "text": "adequate counsel and support from the attending physician at an abortion clinic, where abortions for pregnant minors frequently take place.’ ” Id., at 640-641 (footnotes omitted), quoting Danforth, 428 U. S., at 91 (concurring opinion). Accord, 443 U. S., at 657 (dissenting opinion). In addition, “constitutional interpretation has consistently recognized that the parents’ claim to authority in their own household to direct the rearing of their children is basic in the structure of our society.” Ginsberg v. New York, 390 U. S. 629, 639 (1968). In Quilloin v. Walcott, 434 U. S. 246 (1978), the Court expanded on this theme: “We have recognized on numerous occasions that the relationship between parent and child is constitutionally protected. See, e. g., Wisconsin v. Yoder, 406 U. S. 205, 231-233 (1972); Stanley v. Illinois, [405 U. S. 645 (1972)]; Meyer v. Nebraska, 262 U. S. 390, 399-401 (1923). Tt is cardinal with us that the custody, care and nurture of the child reside first in the parents, whose primary function and freedom include preparation for obligations the state can neither supply nor hinder.’ ” Id., at 255, quoting Prince v. Massachusetts, 321 U. S. 158, 166 (1944). See also Parham v. J. R., 442 U. S. 584, 602 (1979); Pierce v. Society of Sisters, 268 U. S. 510, 535 (1925). We have recognized that parents have an important “guiding role” to play in the upbringing of their children, Bellotti II, supra, at 633-639, which presumptively includes counseling them on important decisions. B The Utah statute gives neither parents nor judges a veto power over the minor’s abortion decision. As in Bellotti I, “we are concerned with a statute directed toward minors, as to whom there are unquestionably greater risks of inability to give an informed consent.” 428 U. S., at 147. As applied to immature and dependent minors, the statute plainly serves the important considerations of family integrity and protecting adolescents which we identified in Bellotti II. In addition, as applied to that class, the statute serves a significant state interest by providing an opportunity for parents to supply essential medical and other" }, { "docid": "23346867", "title": "", "text": "attest to this. That some parents ‘may at times be acting against the best interests of their children’ . . . creates a basis for caution, but is hardly a reason to discard wholesale those pages of human experience that teach that parents generally do act in the child’s best interests.” The only cases in which a majority of the Court has deviated from this principle are those in which a State sought to condition a minor’s access to abortion services upon receipt of her parent’s consent to do so. In Planned Parenthood of Central Mo. v. Danforth, 428 U. S. 52 (1976), the Court invalidated a Missouri law requiring that a physician obtain the consent of one parent before performing an abortion. The Court’s reasoning was unmistakable: “[T]he State does not have the constitutional authority to give a third party an absolute, and possibly arbitrary, veto over the decision of the physician and his patient to terminate the patient’s pregnancy, regardless of the reason for withholding the consent.” Id., at 74. The Court today, ignoring this statement, relies heavily upon isolated passages from Danforth, see ante, at 452-453, and other cases involving parental consent laws, see, e. g., ante, at 453 (citing Bellotti II). Justice Marshall, on the other hand, expressly equates laws requiring parental consent with laws requiring parental notification, see ante, at 471-472 (Marshall, J., concurring in part, concurring in judgment in part, and dissenting in part). The difference between notice and consent was apparent to us before and is apparent now. Unlike parental consent laws, a law requiring parental notice does not give any third party the legal right to make the minor’s decision for her, or to prevent her from obtaining an abortion should she choose to have one performed. We have acknowledged this distinction as “fundamental,” and as one “substantially modify[ing] the federal constitutional challenge.” Bellotti v. Baird (Bellotti I), 428 U. S. 132, 145, 148 (1976); see also Matheson, supra, at 411, n. 17. The law before us does not place an absolute obstacle before any minor seeking to obtain an abortion, and" }, { "docid": "23346842", "title": "", "text": "served by the law. The first is the State’s interest in the welfare of pregnant minors. The second is the State’s interest in acknowledging and promoting the role of parents in the care and upbringing of their children. Justice Stevens, writing for two Members of the Court, acknowledges the legitimacy of the first interest, but decides that the second interest is somehow illegitimate, at least as to whichever parent a minor chooses not to notify. I cannot agree that the Constitution prevents a State from keeping both parents informed of the medical condition or medical treatment of their child under the terms and conditions of this statute. The welfare of the child has always been the central concern of laws with regard to minors. The law does not give to children many rights given to adults, and provides, in general, that children can exercise the rights they do have only through and with parental consent. Parham v. J. R., 442 U. S. 584, 621 (1979) (Stewart, J., concurring in judgment). Legislatures historically have acted on the basis of the qualitative differences in maturity between children and adults, see Schall v. Martin, 467 U. S. 253, 265-267 (1984); Thomp son v. Oklahoma, 487 U. S. 815, 853-854 (1988) (O’Connor, J., concurring in judgment) (collecting cases); Stanford v. Kentucky, 492 U. S. 361, 384 (1989) (Brennan, J., dissenting), and not without reason. Age is a rough but fair approximation of maturity and judgment, and a State has an interest in seeing that a child, when confronted with serious decisions such as whether or not to abort a pregnancy, has the assistance of her parents in making the choice. If anything is settled by our previous cases dealing with parental notification and consent laws, it is this point. See Bellotti II, 443 U. S., at 640-641 (opinion of Powell, J.); Matheson, 450 U. S., at 409-411; id., at 422-423 (Stevens, J., concurring in judgment). Protection of the right of each parent to participate in the upbringing of her or his own children is a further discrete interest that the State recognizes by the" }, { "docid": "23346866", "title": "", "text": "for Planned Parenthood Federation of America, Inc., et al., as Amici Curiae in Matheson 16-31. The Court there held that the parental notification law was valid, at least as to immature minors, for the simple reason that a law is not invalid if it fails to further the governmental interest in every instance. This point formed the cornerstone of Justice Stevens’ concurring opinion in Matheson, see 450 U. S., at 423-424, and it finds its most explicit statement in the Court’s opinion in Parham v. J. R., 442 U. S., at 602-603: “The law’s concept of the family rests on a presumption that parents possess what a child lacks in maturity, experience, and capacity for judgment required for making life’s difficult decisions. More importantly, historically, it has recognized that natural bonds of affection lead parents to act in the best interests of their children. . . . “As with so many other legal presumptions, experience and reality may rebut what the law accepts as a starting point; the incidence of child neglect and abuse cases attest to this. That some parents ‘may at times be acting against the best interests of their children’ . . . creates a basis for caution, but is hardly a reason to discard wholesale those pages of human experience that teach that parents generally do act in the child’s best interests.” The only cases in which a majority of the Court has deviated from this principle are those in which a State sought to condition a minor’s access to abortion services upon receipt of her parent’s consent to do so. In Planned Parenthood of Central Mo. v. Danforth, 428 U. S. 52 (1976), the Court invalidated a Missouri law requiring that a physician obtain the consent of one parent before performing an abortion. The Court’s reasoning was unmistakable: “[T]he State does not have the constitutional authority to give a third party an absolute, and possibly arbitrary, veto over the decision of the physician and his patient to terminate the patient’s pregnancy, regardless of the reason for withholding the consent.” Id., at 74. The Court today," }, { "docid": "23346748", "title": "", "text": "a burdensome court appearance actively interferes with the parent-child communication voluntarily initiated by the child, communication assertedly at the heart of the State’s purpose in requiring notification of both parents. In these cases, requiring notification of both parents affirmatively discourages parent-child communication.” Id., at 777-778. V Three separate but related interests — the interest in the welfare of the pregnant minor, the interest of the parents, and the interest of the family unit — are relevant to our consideration of the constitutionality of the 48-hour waiting period and the two-parent notification requirement. The State has a strong and legitimate interest in the welfare of its young citizens, whose immaturity, inexperience, and lack of judgment may sometimes impair their ability to exercise their rights wisely. See Bellotti II, 443 U. S., at 634-639 (opinion of Powell, J.); Prince v. Massachusetts, 321 U. S. 158, 166-167 (1944). That interest, which justifies state-imposed requirements that a minor obtain his or her parent’s consent before undergoing an operation, marrying, or entering military service, see Parham v. J. R., 442 U. S. 584, 603-604 (1979); Planned Parenthood of Central Mo. v. Danforth, 428 U. S., at 95 (White, J., concurring in part and dissenting in part); id., at 102-103 (Stevens, J., concurring in part and dissenting in part), extends also to the minor’s decision to terminate her pregnancy. Although the Court has held that parents may not exercise “an absolute, and possibly arbitrary, veto” over that decision, Danforth, 428 U. S., at 74, it has never challenged a State’s reasonable judgment that the decision should be made after notification to and consultation with a parent. See Ohio v. Akron Center for Reproductive Health, post, at 510-511; Akron v. Akron Center for Reproductive Health, Inc., 462 U. S. 416, 428, n. 10, 439 (1983); H. L. v. Matheson, 450 U. S., at 409-410; Bellotti II, 443 U. S., at 640-641 (opinion of Powell, J.); Danforth, 428 U. S., at 75. As Justice Stewart, joined by Justice Powell, pointed out in his concurrence in Danforth: “There can be little doubt that the State furthers a constitutionally permissible" }, { "docid": "23346783", "title": "", "text": "the question of the constitutionality or sev-erability of the mandatory 48-hour waiting period. A concurring judge agreed with the panel that a requirement that a pregnant minor seeking an abortion notify a noncustodial parent could not withstand constitutional scrutiny and was not saved by a court bypass procedure. Id., at 72a. 853 F. 2d, at 1460, quoting from Justice Powell’s opinion in Bellotti v. Baird, 443 U. S. 622, 640-641 (1979) (Bellotti II). The court also suggested that the statute furthered the “state interest in providing an opportunity for parents to supply essential medical and other information to a physician,” 853 F. 2d, at 1461, but the State has not argued here that that interest provides an additional basis for upholding the statute. 'The court also rejected the argument that the statute violated the Equal Protection Clause by singling out abortion as the only pregnancy-related medical procedure requiring notification. Id.. at 1466. The equal protection challenge is not renewed here. See n. 14, supra. The District Court found: “During the period for which statistics have been compiled, 3,573 bypass petitions were filed in Minnesota courts. Six petitions were withdrawn before decision. Nine petitions were denied and 3,558 were granted.” Finding No. 55, 648 F. Supp., at 765. Planned Parenthood of Central Mo. v. Danforth, 428 U. S. 52, 72-75 (1976); Bellotti v. Baird, 428 U. S. 132 (1976) (Bellotti I); Bellotti II, 443 U. S. 622 (1979); H. L. v. Matheson, 450 U. S. 398 (1981); Akron v. Akron Center for Reproductive Health, Inc., 462 U. S. 416, 439-442 (1983); and Planned Parenthood Assn, of Kansas City, Mo., Inc. v. Ashcroft, 462 U. S. 476, 490-493 (1983); id., at 505 (O’Connor, J., concurring in judgment in part and dissenting in part). The Utah statute reviewed in Matheson required the physician to “[n]otify, if possible, the parents or guardian of the woman upon whom the abortion is to be performed.” Utah Code Ann. § 76-7-304(2) (1990). Unlike the Minnesota statute under review today, the Utah statute did not define the term “parents.” The statute is ambiguous as to whether the term" }, { "docid": "22561233", "title": "", "text": "in the child’s best interests” relied upon by the Court in Parham v. J. R., 442 U. S. 584, 602-603 (1979). It is also consistent with Justice Brennan’s opinion in Parham, which I joined. Id., at 625-639. As the Court noted in Parham, the presumption that parents act in the best interests of their children may be rebutted by “experience and reality.” Id., at 602-603. In my opinion, nothing in the fact that a minor child has become pregnant, and therefore may be confronted with the abortion decision, undercuts the general validity of the presumption. However, when parents decide to surrender custody of their child to a mental hospital and thereby destroy the ongoing family relationship, that very decision raises an inference that parental authority is not being exercised in the child’s best interests. See id., at 631-632 (Brennan, J., dissenting in part). Accordingly, while the abortion decision and the commitment decision are of comparable gravity, reliance upon the’ “pages of human experience” is, in my judgment, more appropriate in the former case than in the latter. The Court’s unwillingness to decide whether the Utah statute may constitutionally be applied to the entire class certified by the state courts presumably rests on the assumption that requiring notice to the parents of a mature or emancipated minor might prevent such a minor from obtaining an abortion. See ante, at 406. Almost by definition, however, a woman intellectually and emotionally capable of making important decisions without parental assistance also should be capable of ignoring any parental disapproval. Furthermore, if every minor with the wisdom of an adult has a constitutional right to be treated as an adult, a uniform minimum voting age is surely suspect. Instead of simply enforcing general rules promulgated by the legislature, perhaps the judiciary should grant\" hearings to all young persons desirous of establishing their status as mature, emancipated minors instead of confining that privilege to unmarried pregnant young women. Justice Marshall, with whom Justice Brennan and Justice Blackmun join, dissenting. The decision of the Court is narrow. It finds shortcomings in appellant’s complaint and therefore denies relief." }, { "docid": "23346838", "title": "", "text": "no hint that the distinctions are constitutionally relevant, much less any indication how a constitutional argument about them ought to be resolved. The random and unpredictable results of our consequently unchanneled individual views make it increasingly evident, Term after Term, that the tools for this job are not to be found in the lawyer’s — and hence not in the judge’s — workbox. I continue to dissent from this enterprise of devising an Abortion Code, and from the illusion that we have authority to do so. Justice Kennedy, with whom The Chief Justice, Justice White, and Justice Sc alia join, concurring in the judgment in part and dissenting in part. “‘There can be little doubt that the State furthers a constitutionally permissible end by encouraging an unmarried pregnant minor to seek the help and advice of her parents in making the very important decision whether or not to bear a child. That is a grave decision, and a girl of tender years, under emotional stress, may be ill-equipped to make it without mature advice and emotional support.’” Bellotti v. Baird (Bellotti II), 443 U. S. 622, 640-641 (1979) (opinion of Powell, J.) (quoting Planned Parenthood of Central Mo. v. Danforth, 428 U. S. 52, 91 (1976) (Stewart, J., concurring)); see also H. L. v. Matheson, 450 U. S. 398, 409-411 (1981); id., at 422-423 (Stevens, J., concurring in judgment); Danforth, supra, at 94-95 (White, J., concurring in part and dissenting in part); id., at 102-103 (Stevens, J., concurring in part and dissenting in part). Today, the Court holds that a statute requiring a minor to notify both parents that she plans to have an abortion is not a permissible means of furthering the interest described with such specificity in Bellotti II. This conclusion, which no doubt will come as a surprise to most parents, is incompatible with our constitutional tradition and any acceptable notion of judicial review of legislative enactments. I dissent from the portion of the Court’s judgment affirming the Court of Appeals’ conclusion that the Minnesota two-parent notice statute is unconstitutional. The Minnesota statute also provides, however, that" }, { "docid": "23346841", "title": "", "text": "144.343(2)-(3) (1988). Notification is not required if the abortion is necessary to prevent the minor’s death; or if both parents have consented to the abortion; or if the minor declares that she is the victim of sexual abuse, neglect, or physical abuse. § 144.343(4). Failure to comply with these requirements is a misdemeanor, and the statute authorizes a civil action against the noncomplying physician by the minor’s parents. § 144.343(5). The statute also provides that, if a court enjoins the notice requirement of subdivision 2, parental notice under the subdivision shall still be required, unless the minor obtains a court order dispensing with it. Under the statute, the court is required to authorize the physician to perform the abortion without parental notice if the court determines that the minor is “mature and capable of giving informed consent to the proposed abortion” or that “the performance of an abortion upon her without notification of her parents, guardian, or conservator would be in her best interests.” § 144.343(6). r — I h-H The State identifies two interests served by the law. The first is the State’s interest in the welfare of pregnant minors. The second is the State’s interest in acknowledging and promoting the role of parents in the care and upbringing of their children. Justice Stevens, writing for two Members of the Court, acknowledges the legitimacy of the first interest, but decides that the second interest is somehow illegitimate, at least as to whichever parent a minor chooses not to notify. I cannot agree that the Constitution prevents a State from keeping both parents informed of the medical condition or medical treatment of their child under the terms and conditions of this statute. The welfare of the child has always been the central concern of laws with regard to minors. The law does not give to children many rights given to adults, and provides, in general, that children can exercise the rights they do have only through and with parental consent. Parham v. J. R., 442 U. S. 584, 621 (1979) (Stewart, J., concurring in judgment). Legislatures historically have acted on" }, { "docid": "22979691", "title": "", "text": "2d 1380, 1389 (1986); In re Bibb, 70 Ohio App. 2d 117, 120, 435 N. E. 2d 96, 99 (1980). Justice Blackmun, with whom Justice Brennan and Justice Marshall join, dissenting. I — I The constitutional right to “control the quintessential^ intimate, personal, and life-directing decision whether to carry a fetus to term,” Webster v. Reproductive Health Services, 492 U. S. 490, 538 (1989) (opinion concurring in part and dissenting in part), does “not mature and come into being magically only when one attains the state-defined age of majority. Minors, as well as adults, are protected by the Constitution and possess constitutional rights.” Planned Parenthood of Central Mo. v. Danforth, 428 U. S. 52, 74 (1976); Hodgson v. Minnesota, ante, at 435 (“[T]he constitutional protection against unjustified state intrusion into the process of deciding whether or not to bear a child extends to pregnant minors as well as adult women”). Although the Court “has recognized that the State has somewhat broader authority to regulate the activities of children than of adults,” in doing so, the State nevertheless must demonstrate that there is a “significant state interest in conditioning an abortion . . . that is not present in the case of an adult.” Danforth, 428 U. S., at 74-75 (emphasis added). “Any independent interest the parent may have in the termination of the minor daughter’s pregnancy is no more weighty than the right of privacy of the competent minor mature enough to have become pregnant.” Id., at 75. “The abortion decision differs in important ways from other decisions that may be made during minority. The need to preserve the constitutional right and the unique nature of the abortion decision, especially when made by a minor, require a State to act with particular sensitivity when it legislates to foster parental involvement in this matter.” Bellotti v. Baird, 443 U. S. 622, 642 (1979) (opinion of Powell, J.) (emphasis added) (Bellotti II). “[Pjarticular sensitivity” is mandated because “there are few situations in which denying a minor the right to make an important decision will have consequences so grave and indelible.” Ibid. It" }, { "docid": "23346795", "title": "", "text": "coupled with parental responsibilities, post, at 483, and that “a State [may] legislate on the premise that parents, as a general rule, are interested in their children’s welfare and will act in accord with it,” post, at 485. That, of course, is precisely our point. What the State may not do is legislate on the generalized assumptions that a parent in an intact family will not act in his or her child's best interests and will fail to involve the other parent in the child’s upbringing when that involvement is appropriate. See, e. g., Brief for American Psychological Association et al. as Amici Curiae 6, n. 8 (state law typically allows a minor parent — whatever her age — to consent to the health care of her child); Brief for the American College of Obstetricians and Gynecologists et al. as Amici Curiae 25 (“In areas that do not deal with sexuality or substance abuse, states require, at most, a single parent’s consent before performing medical procedures on a minor”). Justice O’Connor, concurring in part and concurring in the judgment in part. I I join all but Parts III and VIII of Justice Stevens’ opinion. While I agree with some of the central points made in Part III, I cannot join the broader discussion. I agree that the Court has characterized “[a] woman’s decision to conceive or to bear a child [as] a component of her liberty that is protected by the Due Process Clause of the Fourteenth Amendment to the Constitution.” Ante, at 434. See, e. g., Carey v. Population Services International, 431 U. S. 678, 685, 687 (1977); Griswold v. Connecticut, 381 U. S. 479, 502-503 (1965) (White, J., concurring in judgment). This Court extended that liberty interest to minors in Bellotti v. Baird, 443 U. S. 622, 642 (1979) (Bellotti II), and Planned Parenthood of Central Mo. v. Danforth, 428 U. S. 52, 74 (1976), albeit with some important limitations: “[P]arental notice and consent are qualifications that typically may be imposed by the State on a minor’s right to make important decisions. As immature minors often lack the" }, { "docid": "23346839", "title": "", "text": "emotional support.’” Bellotti v. Baird (Bellotti II), 443 U. S. 622, 640-641 (1979) (opinion of Powell, J.) (quoting Planned Parenthood of Central Mo. v. Danforth, 428 U. S. 52, 91 (1976) (Stewart, J., concurring)); see also H. L. v. Matheson, 450 U. S. 398, 409-411 (1981); id., at 422-423 (Stevens, J., concurring in judgment); Danforth, supra, at 94-95 (White, J., concurring in part and dissenting in part); id., at 102-103 (Stevens, J., concurring in part and dissenting in part). Today, the Court holds that a statute requiring a minor to notify both parents that she plans to have an abortion is not a permissible means of furthering the interest described with such specificity in Bellotti II. This conclusion, which no doubt will come as a surprise to most parents, is incompatible with our constitutional tradition and any acceptable notion of judicial review of legislative enactments. I dissent from the portion of the Court’s judgment affirming the Court of Appeals’ conclusion that the Minnesota two-parent notice statute is unconstitutional. The Minnesota statute also provides, however, that if the two-parent notice requirement is invalidated, the same notice requirement is effective unless the pregnant minor obtains a court order permitting the abortion to proceed. Minn. Stat. § 144.343(6) (1988). The Court of Appeals sustained this portion of the statute, in effect a two-parent notice requirement with a judicial bypass. Five Members of the Court, the four who join this opinion and Justice O’Connor, agree with the Court of Appeals’ decision on this aspect of the statute. As announced by Justice Stevens, who dissents from this part of the Court’s decision, the Court of Appeals’ judgment on this portion of the statute is therefore affirmed. H-l The provisions of the statute before us are straightforward. In essence, the statute provides that before a physician in Minnesota may perform an abortion on an uneman-cipated minor, the physician or the physician’s agent must notify both of the minor’s parents, if each one can be located through reasonable effort, either personally or by certified mail at least 48 hours before the abortion is performed. Minn. Stat. §§" }, { "docid": "23346797", "title": "", "text": "ability to make fully informed choices that take account of both immediate and long-range consequences, a State reasonably may determine that parental consultation often is desirable and in the best interest of the minor.” Bellotti II, supra, at 640-641 (opinion of Powell, J.); see also H. L. v. Matheson, 450 U. S. 398, 423 (1981) (Stevens, J., concurring in judgment); cf. Thompson v. Oklahoma, 487 U. S. 815, 835 (1988) (“Inexperience, less education, and less intelligence make the teenager less able to evaluate the consequences of his or her conduct while at the same time he or she is much more apt to be motivated by mere emotion or peer pressure than is an adult”); Stanford v. Kentucky, 492 U. S. 361, 395 (1989) (Brennan, J., dissenting) (“[Mjinors are treated differently from adults in our laws, which reflects the simple truth derived from communal experience, that juveniles as a class have not the level of maturation and responsibility that we presume in adults and consider desirable for full participation in the rights and duties of modern life”). It has been my understanding in this area that “[i]f the particular regulation does not ‘unduly burde[n]’ the fundamental right, . . . then our evaluation of that regulation is limited to our determination that the regulation rationally relates to a legitimate state purpose.” Akron v. Akron Center for Reproductive Health, Inc., 462 U. S. 416, 453 (1983) (O’Connor, J., dissenting); see also Webster v. Reproductive Health Services, 492 U. S. 490, 530 (1989) (O’Connor, J., concurring in part and concurring in judgment). It is with that understanding that I agree with Justice Stevens’ statement that the “statute cannot be sustained if the obstacles it imposes are not reasonably related to legitimate state interests. Cf. Turner v. Safley, 482 U. S., at 97; Carey v. Population Services International, 431 U. S., at 704 (opinion of Powell, J.); Doe v. Bolton, 410 U. S. 179, 194-195, 199 (1973).” Ante, at 436. I agree with Justice Stevens that Minnesota has offered no sufficient justification for its interference with the family’s decisionmaking processes created by subdivision" }, { "docid": "22124009", "title": "", "text": "States). In addition, the Court repeatedly has recognized that, in view of the unique status of children under the law, the States have a “significant” in terest in certain abortion regulations aimed at protecting children “that is not present in the case of an adult.” Planned Parenthood of Central Missouri v. Danforth, 428 U. S., at 75. See Carey v. Population Services International, 431 U. S. 678, 693, n. 15 (1977) (plurality opinion). The right of privacy includes “independence in making certain kinds of important decisions,” Whalen v. Roe, 429 U. S. 589, 599-600 (1977), but this Court has recognized that many minors are less capable than adults of making such important decisions. See Bellotti v. Baird, 443 U. S., at 633-635 (Bellotti II) (plurality opinion); Danforth, supra, at 102 (Stevens, J., concurring in part and dissenting in part). Accordingly, we have held that the States have a legitimate interest in encouraging parental involvement in their minor children’s decision to have an abortion. See H. L. v. Matheson, 450 U. S. 398 (1981) (parental notice); Bellotti II, supra, at 639, 648 (plurality opinion) (parental consent). A majority of the Court, however, has indicated that these state and parental interests must give way to the constitutional right of a mature minor or of an immature minor whose best interests are contrary to parental involvement. See, e. g., Matheson, 450 U. S., at 420 (Powell, J., concurring); id., at 450-451 (Marshall, J., dissenting). The plurality in Bellotti II concluded that a State choosing to encourage parental involvement must provide an alternative procedure through which a minor may demonstrate that she is mature enough to make her own decision or that the abortion is in her best interest. See Bellotti II, supra, at 643-644. Roe identified the end of the first trimester as the compelling point because until that time — according to the medical literature available in 1973 — “mortality in abortion may be less than mortality in normal childbirth.” 410 U. S., at 163. There is substantial evidence that developments in the past decade, particularly the development of a much safer" }, { "docid": "23346796", "title": "", "text": "concurring in the judgment in part. I I join all but Parts III and VIII of Justice Stevens’ opinion. While I agree with some of the central points made in Part III, I cannot join the broader discussion. I agree that the Court has characterized “[a] woman’s decision to conceive or to bear a child [as] a component of her liberty that is protected by the Due Process Clause of the Fourteenth Amendment to the Constitution.” Ante, at 434. See, e. g., Carey v. Population Services International, 431 U. S. 678, 685, 687 (1977); Griswold v. Connecticut, 381 U. S. 479, 502-503 (1965) (White, J., concurring in judgment). This Court extended that liberty interest to minors in Bellotti v. Baird, 443 U. S. 622, 642 (1979) (Bellotti II), and Planned Parenthood of Central Mo. v. Danforth, 428 U. S. 52, 74 (1976), albeit with some important limitations: “[P]arental notice and consent are qualifications that typically may be imposed by the State on a minor’s right to make important decisions. As immature minors often lack the ability to make fully informed choices that take account of both immediate and long-range consequences, a State reasonably may determine that parental consultation often is desirable and in the best interest of the minor.” Bellotti II, supra, at 640-641 (opinion of Powell, J.); see also H. L. v. Matheson, 450 U. S. 398, 423 (1981) (Stevens, J., concurring in judgment); cf. Thompson v. Oklahoma, 487 U. S. 815, 835 (1988) (“Inexperience, less education, and less intelligence make the teenager less able to evaluate the consequences of his or her conduct while at the same time he or she is much more apt to be motivated by mere emotion or peer pressure than is an adult”); Stanford v. Kentucky, 492 U. S. 361, 395 (1989) (Brennan, J., dissenting) (“[Mjinors are treated differently from adults in our laws, which reflects the simple truth derived from communal experience, that juveniles as a class have not the level of maturation and responsibility that we presume in adults and consider desirable for full participation in the rights and duties of" } ]

[ { "docid": "20113059", "title": "", "text": "road sign inventory indicated that “slippery when wet” signs were located in two places on the half-mile stretch of road bracketing the curve where the accident occurred, and the Assistant Chief of Maintenance of the park stated that in 1990, a slippery road sign was posted in each direction on the same stretch of road, although there is no indication of how close such signs were to the curve where the accident occurred. In the District Court, the government moved for summary judgment, arguing that its action (or inaction) with respect to the road was discretionary and therefore exempt from suit under the FTCA. J.A. 15. The District Court agreed, ruling that it had no jurisdiction to hear the case. Cope v. Scott, No. 90cvllll, mem. op. at 3-6 (D.D.C. June 26, 1992), reprinted in J.A. 535-38. Cope settled with Scott and now appeals the District Court’s immunity ruling. II. The FTCA authorizes district courts to hear suits against the United States for money damages ... for injury or loss of property, or personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred. 28 U.S.C. § 1346(b). This broad waiver of sovereign immunity is limited, however, by the exceptions in 28 U.S.C. § 2680(a): The provisions of this chapter and section 1346(b) of this title shall not apply to— (a) Any claim based upon an act or omission of an employee of the Government, exercising due care, in the execution of a statute or regulation, whether or not such statute or regulation be valid, or based upon the exercise or performance or, the failure to exercise or perform a discretionary function or duty on the part of a federal agency or an employee of the Government, whether or not the discretion be abused. 28 U.S.C. § 2680(a) (emphasis added). The second" } ]

[ { "docid": "11014653", "title": "", "text": "the bar of sovereign immunity is absolute and the plaintiff cannot redraft his claim to avoid the exception to the FTCA. Id. The FTCA provides a limited waiver of the federal government’s sovereign immunity when its employees are negligent within the scope of their employment. Under the FTCA, the government can only be sued “under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred.” 28 U.S.C. § 1346(b). Thus, the FTCA does not apply to conduct that is uniquely governmental, that is, incapable of performance by a private individual. The majority, in discussing the distinction between private acts and governmental conduct at pages 496-97 of their opinion, have failed to fully describe the incident that the plaintiff claims results in a cause of action under the Federal Tort Claims Act. That incident is the disclosure of the name of a government informant in an attempt to obtain other informants in foreign countries to act for the government in intelligence gathering against an international drug cartel. The majority have avoided trying to describe any case that would make it a tort by a private person. Furthermore, the FTCA is limited by a number of exceptions pursuant to which the government is not subject to suit, even if a private employer could be liable under the same circumstances. These exceptions include the discretionary function exception, which bars a claim “based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a federal agency or an employee of the Government, whether or not the discretion involved be abused.” 28 U.S.C. § 2680(a). In order to determine whether the FBI’s conduct falls within the discretionary function exception, the courts must apply a two-part test established in Berkovitz v. United States, 486 U.S. 531, 536, 108 S.Ct. 1954, 1958-59, 100 L.Ed.2d 531 (1988). See Kennewick Irrigation District v. United States, 880 F.2d 1018, 1025 (9th Cir.1989). First, the question must be asked whether the" }, { "docid": "16421963", "title": "", "text": "6(c)). Plaintiffs right to recover was premised on the Federal Tort Claims Act (FTCA), 28 U.S.C. §§ 1346(b), 2671 et seq. The defendant moved to dismiss for lack of subject matter jurisdiction on the ground that the DFE barred recovery for the alleged conduct, even if government negligence could be established. The district court granted the defendant’s motion and dismissed the case by Memorandum Opinion and Order dated July 31,1998. Plaintiff appealed the dismissal to this court. The matter was submitted to this panel on June 11, 1999. By order dated July 22, 1999, we appointed counsel to represent the plaintiff and ordered additional briefing. DISCUSSION Under traditional principles of sovereign immunity, the United States is immune from suit except to the extent the government has waived its immunity. In 1946, Congress adopted the FTCA which, subject to numerous exceptions, waives the sovereign immunity of the federal government for claims based on the negligence of its employees. See 28 U.S.C. §§ 1346(b), 2671 et seq. In relevant part, the FTCA, 28 U.S.C. § 1346(b)(1), authorizes suits against the government to recover damages for injury or loss of property, or personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred. A significant limitation on the waiver of immunity provided by the Act is the exception known as the DFE, 28 U.S.C. § 2680(a), which provides that Congress’s authorization to sue the United States for damages shall not apply to ... [a]ny claim ... based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of ... an employee of the Government, whether or not the discretion involved be abused. Over the last two decades, the Supreme Court has handed down a series of decisions clarifying the scope of the DFE. The Court’s" }, { "docid": "6716545", "title": "", "text": "immunity of the United States in cases involving negligence by government employees. The FTCA provides for suits against the United States for damages “for injury or loss of property, or personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred.” 28 U.S.C. § 1346(b). This waiver of immunity is limited, however, by what is referred to as the “discretionary function exception.” The discretionary function exception relieves the United States of liability for “[a]ny claim ... based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a federal agency or an employee of the Government, whether or not the discretion involved be abused.” 28 U.S.C. § 2680(a). At issue in most cases in which the discretionary function exception is invoked is the scope of this exception. In 1988, the Supreme Court attempted to clarify the scope of the discretionary function exception in Berkovitz v. United States, 486 U.S. 531, 108 S.Ct.1954, 100 L.Ed.2d 531 (1988). The Berkovitz Court articulated a two-step procedure to guide courts in analyzing the exception’s scope. First, a court must consider whether the challenged conduct “is a matter of choice for the acting employee” or whether it is specifically prescribed by a federal statute, regulation, or policy. Id. at 536, 108 S.Ct. at 1958. “[I]f the employee’s conduct cannot appropriately be the product of judgment or choice, then there is no discretion in the conduct for the discretionary function exception to protect.” Id. Second, if the employee’s conduct is the product of judgment or choice, “a court must determine whether that judgment is of the kind that the discretionary function exception was designed to shield.” Id. The discretionary function exception was designed “to ‘prevent judicial “second-guessing” of legislative and administrative decisions grounded in social, economic, and" }, { "docid": "158676", "title": "", "text": "with the United States. 28 U.S.C. § 2671 (emphasis added). Thus, the FTCA adopts the common-law distinction between the liability of an employer for the negligent acts of its employees and for the negligent acts of those with whom it contracts. Logue v. United States, 412 U.S. 521, 526, 93 S.Ct. 2215, 2218-19, 37 L.Ed.2d 121 (1973). In order for the government to be liable under the FTCA, it must be shown that the acts or omissions complained of were taken by an employee of the government. The defendant asserts that, to the extent the plaintiff bases its action on the 1986 Photographic and Historical Report, it is immune from suit under the independent contractor provision. However, the defendant’s invocation of the independent contractor provision is inappropriate in this ease because the plaintiff’s complaint does not challenge the actions of the independent contractor. Rather, the plaintiff claims that the Army was negligent in failing to take appropriate action after learning from its independent contractor that there were “possible burial sites, shell and bomb pits, trenches and possible test areas.” This claim is not barred by the independent contractor provision. iii. The Discretionary Function Provision Of The FTCA Bars The Plaintiffs Claims Based On The Defendant’s Allegedly Wrongful Burial of Munitions During 1917-1920, its Allegedly Negligent Investigation in 1986; And its Failure To Remove The Munitions Prior To 1993. The Discretionary Function Provision Does Not Bar Claims Based On the Defendant’s Failure To Mark Or Warn That There Were Buried Munitions. The FTCA excepts from its provisions [a]ny claim based upon an act or omission of an employee of the Government, exercising due care, in the execution of a statute or regulation, whether or not such statute or regulation be valid, or based upon the exercise or performance or the failure to exercise or perform a discretionary junction or duty on the part of a federal agency or an employee of the Government whether or not the discretion involved be abused. 28 U.S.C. § 2680(a) (emphasis added). This exception to the Court’s jurisdiction under the FTCA is known as the “discretionary" }, { "docid": "22265251", "title": "", "text": "and 1982 breaks. In the subsequent damages phase of the trial, the magistrate awarded damages of $1,225,805.08 to Kennewick, $147,019.99 to National Railway, and $31,905.00 to Burlington Northern for damages stemming from the 1979 break. In addition, the magistrate awarded damages of $200,288.00 to Kennewick for the 1982 break. For the costs of canal repair work, Kennewick was awarded an additional $123,265.23. II The United States first argues that its actions in designing and constructing the Kennewick main canal cannot give rise to liability under the FTCA because they fall within the “discretionary function” exception. We review independently the district court’s determination of subject matter jurisdiction under the discretionary function exception. Arizona Maintenance Co. v. United States, 864 F.2d 1497, 1499 (9th Cir.1989) (Arizona Maintenance); Mitchell v. United States, 787 F.2d 466, 468 (9th Cir.1986) (Mitchell), cert. denied, 484 U.S. 856, 108 S.Ct. 163, 98 L.Ed.2d 118 (1987). The FTCA authorizes civil suits against the United States for money damages ... for injury or loss of property, or personal injury ... caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred. 28 U.S.C. § 1346(b). The FTCA contains several exceptions, however, to this broad waiver of sovereign immunity. Berkovitz v. United States, 486 U.S. 531, 108 S.Ct. 1954, 1958, 100 L.Ed.2d 531 (1988) (Berkovitz). The discretionary function exception excludes from the purview of the FTCA “[a]ny claim ... based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a federal agency or an employee of the Government, whether or not the discretion involved be abused.” 28 U.S.C. § 2680(a). This exception “ ‘marks the boundary between Congress’ willingness to impose tort liability upon the United States and its desire to protect certain governmental activities from exposure to suit by private individuals.’ ” Berkovitz," }, { "docid": "22265252", "title": "", "text": "or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred. 28 U.S.C. § 1346(b). The FTCA contains several exceptions, however, to this broad waiver of sovereign immunity. Berkovitz v. United States, 486 U.S. 531, 108 S.Ct. 1954, 1958, 100 L.Ed.2d 531 (1988) (Berkovitz). The discretionary function exception excludes from the purview of the FTCA “[a]ny claim ... based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a federal agency or an employee of the Government, whether or not the discretion involved be abused.” 28 U.S.C. § 2680(a). This exception “ ‘marks the boundary between Congress’ willingness to impose tort liability upon the United States and its desire to protect certain governmental activities from exposure to suit by private individuals.’ ” Berkovitz, 108 S.Ct. at 1958, quoting United States v. S.A. Empresa de Viacao Aerea Rio Grandense (Varig Airlines), 467 U.S. 797, 808, 104 S.Ct. 2755, 2762, 81 L.Ed.2d 660 (1984) (Varig). Grounded in separation of powers concerns, the discretionary function exception reflects Congress’s “wish[] to pre vent judicial ‘second-guessing’ of legislative and administrative decisions grounded in social, economic, and political policy through the medium of an action in tort.” Varig, 467 U.S. at 814, 104 S.Ct. at 2765; see also Begay v. United States, 768 F.2d 1059, 1064 (9th Cir.1985) (Begay). Three important decisions by the Supreme Court have developed the contours of the discretionary function exception: Dalehite v. United States, 346 U.S. 15, 73 S.Ct. 956, 97 L.Ed. 1427 (1953) {Dalehite), Varig, and Berkovitz. Dalehite, the Court's first major decision in this area, involved numerous claims of negligence arising out of a catastrophic explosion of fertilizer containing ammonium nitrate in Texas City, Texas. The fertilizer was manufactured by the United States as part of its post-war effort to increase the food supply in areas under" }, { "docid": "21082324", "title": "", "text": "their claims that the Park Service’s design of the Road required warning signs and a lower speed limit at the accident site. We therefore turn to consider whether the district court erred in finding that the discretionary function exception to the FTCA bars these claims. 1. Discretionary function exception “A party may bring an action against the United States only to the extent that the government waives its sovereign immunity.” Valdez v. United States, 56 F.3d 1177, 1179 (9th Cir.1995). The FTCA waives the government’s sovereign immunity for tort claims arising out of the negligent conduct of government employees acting within the scope of their employment. Id. Thus, the government can be sued “under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred.” 28 U.S.C. § 1346(b). The FTCA’s waiver of immunity is limited, however, by the discretionary function exception, which bars claims “based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a federal agency or an employee of the Government, whether or not the discretion involved be abused.” 28 U.S.C. § 2680(a). This exception “restores the government’s immunity in situations where its employees are carrying out governmental or ‘regulatory’ duties,” Faber v. United States, 56 F.3d 1122, 1124 (9th Cir.1995), and it “marks the boundary between Congress’ willingness to impose tort liability on the United States and the desire to protect certain decisionmaking from judicial second-guessing.” Conrad v. United States, 447 F.3d 760, 764 (9th Cir.2006) (citing Berkovitz v. United States, 486 U.S. 531, 536-37, 108 S.Ct. 1954, 100 L.Ed.2d 531 (1988)). To determine whether the challenged conduct falls within the discretionary function exception, we employ a two-step analysis. First, we determine “whether the challenged actions involve ‘an element of judgment or choice.’ ” Valdez, 56 F.3d at 1179 (quoting United States v. Gaubert, 499 U.S. 315, 322, 111 S.Ct. 1267, 113 L.Ed.2d 335 (1991)). Our inquiry looks to “the nature of the conduct, rather than" }, { "docid": "12044154", "title": "", "text": "immunity is inherent in our constitutional structure and ... renders the United States [and] its departments ... immune from suit except as the United States has consented to be sued.”). Because “[sjovereign immunity is jurisdictional in nature,” F.D.I.C. v. Meyer, 510 U.S. 471, 475, 114 S.Ct. 996, 127 L.Ed.2d 308 (1994), Congress’s “waiver of [it] must be unequivocally expressed in statutory text and will not be implied,” Lane v. Pena, 518 U.S. 187, 192, 116 S.Ct. 2092, 135 L.Ed.2d 486 (1996) (internal citation omitted); see also Petterway v. Veterans Admin. Hosp., 495 F.2d 1223, 1225 n. 3 (5th Cir.1974) (“It is well settled ... that a waiver of sovereign immunity must be specific and explicit and cannot be implied by construction of an ambiguous statute.”). Plaintiffs have alleged claims under the FTCA for failure to provide due care in the provision of emergency aid pursuant to the NRP. The FTCA authorizes suits against the United States for damages arising from: injury or loss of property, or personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred. 28 U.S.C. § 1346(b)(1). Thus, the FTCA waives sovereign immunity and permits suits against the United States sounding in state tort for money damages. In re Supreme Beef Processors, Inc., 468 F.3d 248, 252 (5th Cir.2006). As long as state tort law creates the relevant duty, the FTCA permits suit for violations of federal statutes and regulations. See Johnson v. Sawyer, 47 F.3d 716, 728 (5th Cir.1995) (en banc) (“If the requisite relationship and duty exist, then the statutory or regulatory violation may constitute or be evidence of negligence in the performance of that state law duty.”). The FTCA, however, excepts discretionary functions and duties from this waiver of sovereign immunity. See 28 U.S.C. § 2680(a). The FTCA’s “discretionary function exception” provides that the waiver" }, { "docid": "12682258", "title": "", "text": "to warn of the dangers associated with snow and ice under Wyoming law. In addition, the court determined the NPS’s management of the Lower Trail (where the accident occurred) was reasonable, and thus within the applicable standard of care. The court also found the Childers’ own negligence in ignoring warnings and permitting the children to run ahead of the adults, and David’s climbing in an obviously dangerous situation bars recovery. Finally, the court added that because NPS regulations allowed David to enter the Park free of charge, the Wyoming Recreational Use Statute, Wyo. Stat. § 34-19-105 (1977) which bars claims by visitors who enter on land without charge, also prevents recovery. Title 28 U.S.C. § 2680(a) — “The Discretionary Exception” The Childers argue the district court erred in finding the United States immune from suit because the NPS’s treatment of winter trails fell within the discretionary function exception to the FTCA. The United States argues NPS’s actions clearly fell within this exception, and therefore this action should be dismissed for lack of subject matter jurisdiction. The FTCA provides a general waiver of the federal government’s sovereign immunity when its employees are negligent within the scope of their employment, under circumstances in which a private person “would be hable to the claimant in accordance with the law of the place where the act or omission occurred.” 28 U.S.C. § 1346(b). This waiver of immunity is limited by the discretionary function exception, which states that the FTCA waiver is not applicable to “[a]ny claim ... based upon the exercise or perfor-manee or the failure to exercise or perform a discretionary function or duty on the part of a federal agency or an employee of the Government, whether or not the discretion involved be abused.” 28 U.S.C. § 2680(a). If a federal statute, regulation, or policy specifically prescribes a course of conduct, the discretionary function exception will not apply. Berkovitz v. United States, 486 U.S. 531, 536, 108 S.Ct. 1954, 1958-59, 100 L.Ed.2d 531 (1988). If choice or judgment are allowed, however, the exception protects the ability of the employee to act according" }, { "docid": "158670", "title": "", "text": "at 2513. “Only disputes of facts that might affect the outcome of the suit ... will properly preclude the entry of summary judgment.” Id. at 248, 106 S.Ct. at 2510. I. THE COURT HAS SUBJECT MATTER JURISDICTION OYER THE PLAINTIFF’S CLAIMS ARISING FROM THE DEFENDANT’S FAILURE TO WARN OF THE BURIED MUNITIONS. A. The plaintifPs claims are not barred by the FTCA’s “effective date” or “independent contractor” provisions; The plaintiff’s claims arising from the defendant’s failure to warn of buried munitions are not barred by the discretionary function provision. As a sovereign, the United States is immune from suit except if it has consented to be sued. United States v. Dalm, 494 U.S. 596, 608, 110 S.Ct. 1361, 1368, 108 L.Ed.2d 548 (1990). The FTCA waives sovereign immunity for civil suits against the United States for money damages ... for injury or loss of property, or personal injury ... caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his [or her] office or employment, under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred. 28 U.S.C. § 1346(b). The FTCA contains several exceptions to this waiver of sovereign immunity. Berkovitz v. United States, 486 U.S. 531, 535, 108 S.Ct. 1954, 1958, 100 L.Ed.2d 531 (1988). If a plaintiffs claims are excepted from the FTCA’s waiver of sovereign immunity, the Court lacks subject matter jurisdiction over those claims. See Cope v. Scott, 45 F.3d 445, 448 (D.C.Cir.1995). Exceptions to the waiver of sovereign immunity are established by the FTCA’s effective date, independent contractor, and discretionary function provisions, each of which the defendant cites as a bar to the present suit. The Court concludes that the effective date and independent contractor provisions do not bar suit here. The discretionary function provision bars suit with respect to the defendant’s burial of munitions, investigation, and failure to remove the munitions; however, it does not bar suit with respect to the defendant’s failure" }, { "docid": "12052457", "title": "", "text": "construction of an ambiguous statute.”). Plaintiff argues that Congress waived sovereign immunity for its present claims in three statutes: the FTCA, the APA, and the Stafford Act. Plaintiff alleges a claim under the FTCA for wrongful denial of funding under the Stafford Act. The FTCA authorizes suits against the United States for damages arising from: injury or loss of property, or personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred. 28 U.S.C. § 1346(b)(1). Thus, the FTCA waives sovereign immunity and permits suits against the United States sounding in state tort for money damages. In re Supreme Beef Processors, Inc., 468 F.3d 248, 252 (5th Cir.2006). As long as state tort law creates the relevant duty, the FTCA permits suit for violations of federal statutes and regulations. See Johnson v. Sawyer, 47 F.3d 716, 728 (5th Cir.1995) (en banc) (“[T]he violation of a federal statute or regulation does not give rise to FTCA liability unless the relationship between the offending federal employee or agency and the injured party is such that the former, if a private person or entity, would owe a duty under state law to the latter in a nonfederal context. If the requisite relationship and duty exist, then the statutory or regulatory violation may constitute or be evidence of negligence in the performance of that state law duty.”). The FTCA, however, excepts discretionary functions and duties from this waiver of sovereign immunity. See 28 U.S.C. § 2680(a). This “discretionary function exception” provides that the waiver of sovereign immunity in § 1346(b) does not apply to: Any claim ... based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a federal agency or an employee of the Government, whether or not the discretion involved be abused." }, { "docid": "16447383", "title": "", "text": "generally waives the federal government’s sovereign immunity for certain torts committed by government employees. The Act allows suits against the United States for “personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, under circumstances where the United States, if a private person, would be liable to the claimant.” 28 U.S.C. § 1346(b)(1). Thus, actions of the BIA’s employees can expose the United States to tort liability for money damages. See 28 U.S.C. §§ 1346(b), 2671. The FTCA’s waiver of sovereign immunity is limited, however, by several exceptions, one of which removes the effects of some governmental decisions from the waiver in order to protect government policy making. See Dykstra v. United States Bureau of Prisons, 140 F.3d 791, 795 (8th Cir.1998); see also 28 U.S.C. § 2680. Under this exception, the United States may not be sued under the FTCA for “[a]ny claim ... based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a federal agency or an employee of the Government, whether or not the discretion involved be abused.” 28 U.S.C. 2680(a). In order to take advantage of the exception, the government must first establish that the employee’s action “involve[d] an element of judgment or choice.” Berkovitz by Berkovitz v. United States, 486 U.S. 531, 536, 108 S.Ct. 1954, 100 L.Ed.2d 531 (1988). If a statute, regulation, or specific policy dictates the employee’s actions, he or she cannot be said to be exercising discretion, and the exception to the waiver of sovereign immunity does not apply. Id.; Appley Bros. v. Unit ed States, 164 F.3d 1164, 1170 (8th Cir.1999); C.R.S. by D.B.S. v. United States, 11 F.3d 791, 795-96 (8th Cir.1993). Mr. Demery concedes that there are no specific or clear BIA policy statements regarding aerated lakes or the necessity or adequacy of warning signs to be located near them. Therefore, decisions regarding the maintenance of the aeration system, whether warnings of the open water would" }, { "docid": "7854159", "title": "", "text": "grounded in policy. See id. The exception was intended to protect only such specific policy-based judgment. The present case involves no second-guessing of protected policy-making. A parallel problem is the majority’s mis-characterization of Gail Irving’s position. Irving does not contend “that all [OSHA] inspections ought to be painstakingly comprehensive.” Maj. Op. at 168. Her claim, properly construed, is that once inspectors have been ordered by their supervisor to perform a wall-to-wall inspection, they must do so with due care. Irving argues that if the inspectors had followed their superiors’ orders, she would not have had her scalp torn from her head. Thus, she contends that the negligent inspections were not protected by the discretionary function exception because the inspectors had “no rightful option but to adhere to the directive” of their superior officer. See Berkovitz, 486 U.S. at 536, 108 S.Ct. 1954. Because in my view the district court properly concluded that the exception does not bar Irving’s claim, I respectfully dissent. I The FTCA, except for certain enumerated exceptions, “waives the Government’s immunity from suit in sweeping language.” Smith v. United States, 507 U.S. 197, 205 n. 1, 113 S.Ct. 1178, 122 L.Ed.2d 548 (1993) (quoting United States v. Yellow Cab Co., 340 U.S. 543, 547, 71 S.Ct. 399, 95 L.Ed. 523 (1951)). The FTCA authorizes suits against the United States for damages for ... personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, under circumstances where the United States, if a private person, would be liable to the claimant under the law of the place where the act or omission occurred. 28 U.S.C. § 1346(b). The FTCA is a “broad waiver of sovereign immunity,” which “generally authorizes suits against the United States for damages” that fit within its description. Berkovitz, 486 U.S. at 535, 108 S.Ct. 1954. This waiver applies unless the government is protected by one of several specifically enumerated exceptions to the FTCA. Id.; see 28 U.S.C. § 2680. The majority opinion relies upon the discretionary" }, { "docid": "2766760", "title": "", "text": "given case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). “Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment.” Id. The governing law in this case, the FTCA, provides a limited waiver of the federal government’s sovereign immunity. The FTCA allows civil claims against the United States for injuries caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred. 28 U.S.C. § 1346(b). However, the FTCA preserves the government’s immunity against claims based on its performance of discretionary functions: The provisions of this chapter and section 1346(b) of this title shall not apply to— (a) Any claim ... based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a federal agency or an employee of the Government, whether or not the discretion involved be abused. 28 U.S.C. § 2680(a). The discretionary function exception “marks the boundary between Congress’ willingness to impose tort liability upon the United States and its desire to protect certain governmental activities from exposure to suit by private individuals.” United States v. S.A. Empresa de Viacao Aerea Rio Grándense (Varig Airlines), 467 U.S. 797, 808, 104 S.Ct. 2755, 2762, 81 L.Ed.2d 660 (1984). Where the governmental conduct at issue falls within the discretionary function exception, the district court lacks subject matter jurisdiction to hear the suit. Tippett, 108 F.3d at 1196. Whether the exception applies “presents a threshold jurisdictional determination which we review de novo,” Domme v. United States, 61 F.3d 787, 789 (10th Cir.1995), using a two-part test announced in Berkovitz v. United States, 486 U.S. 531, 108 S.Ct. 1954, 100 L.Ed.2d 531 (1988). First, we determine whether the governmental conduct at issue “is a" }, { "docid": "3679519", "title": "", "text": "injury or loss of property, or personal injury or death caused by negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred. 28 U.S.C. § 1346(b). Being a waiver of sovereign immunity, the FTCA is strictly construed, and all ambiguities are resolved in favor of the United States. See Radin v. United States, 699 F.2d 681, 685 (4th Cir.1983). Federal Courts, however, lack subject matter jurisdiction to review actions falling within any one of the exceptions to the FTCA. See United States v. Orleans, 425 U.S, 807, 813-14, 96 S.Ct. 1971, 48 L.Ed.2d 390 (1976); Thigpen v. United States, 800 F.2d 393, 394 (4th Cir.1986) (stating that the FTCA, “like all waivers of sovereign immunity, must be strictly construed in favor of the sovereign”) (citations omitted). The United States argues that this Court lacks subject matter jurisdiction over this suit because plaintiffs claims are barred by two exceptions to the FTCA: 1) the discretionary function exception; and 2) the independent contractor exception. III. The Discretionary Function Exception The liability of the United States under the FTCA is limited by the discretionary function exception. This exception provides that the United States shall not be liable for: [a]ny claim based upon an act or omission of an employee of the Government, exercising due care, in the execution of a statute or regulation, whether or not such statute or regulation be valid, or based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a federal agency or an employee of the Government, whether or not the discretion involved be abused. 28 U.S.C. § 2680(a). The exception provides that agents and employees of the United States will not be held liable for their challenged conduct if performance of their duties necessarily involves making decisions that are grounded in public policy." }, { "docid": "11897697", "title": "", "text": "73 S.Ct. 956, 97 L.Ed. 1427 (1953). The FTCA waives the government’s sovereign immunity for suits against the United States for money damages ... for injury or loss of property, or personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred. 28 U.S.C. § 1346(b)(1). This authorization of suit is subject to several exceptions. Relevant to our case is the so-called discretionary function exception, which “marks the boundary between Congress’ willingness to impose tort liability upon the United States and its desire to protect certain governmental activities from exposure to suit by private individuals.” United States v. Varig Airlines, 467 U.S. 797, 808, 104 S.Ct. 2755, 81 L.Ed.2d 660 (1984). The United States is immune from suit for any claim “based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a federal agency or an employee of the Government, whether or not the discretion involved be abused.” 28 U.S.C. § 2680(a). The Supreme Court has provided a two-part test to determine “whether the discretionary function exception bars a suit against the Government.” Berkovitz v. United States, 486 U.S. 531, 536, 108 S.Ct. 1954, 100 L.Ed.2d 531 (1988). First, we ask whether a “federal statute, regulation, or policy specifically prescribes a course of action for an employee to follow.” Id. If so, “the employee has no rightful option but to adhere to the directive,” id., and “[flailure to abide by such [a] directive! ] opens the United States to suit under the FTCA,” Loughlin, 393 F.3d at 163. After all, if there is no element of judgment or choice involved in the employee’s conduct, there is “no discretion ... for the discretionary function exception to protect.” Berkovitz, 486 U.S. at 536, 108 S.Ct. 1954. Second, because the Supreme Court has" }, { "docid": "158671", "title": "", "text": "employment, under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred. 28 U.S.C. § 1346(b). The FTCA contains several exceptions to this waiver of sovereign immunity. Berkovitz v. United States, 486 U.S. 531, 535, 108 S.Ct. 1954, 1958, 100 L.Ed.2d 531 (1988). If a plaintiffs claims are excepted from the FTCA’s waiver of sovereign immunity, the Court lacks subject matter jurisdiction over those claims. See Cope v. Scott, 45 F.3d 445, 448 (D.C.Cir.1995). Exceptions to the waiver of sovereign immunity are established by the FTCA’s effective date, independent contractor, and discretionary function provisions, each of which the defendant cites as a bar to the present suit. The Court concludes that the effective date and independent contractor provisions do not bar suit here. The discretionary function provision bars suit with respect to the defendant’s burial of munitions, investigation, and failure to remove the munitions; however, it does not bar suit with respect to the defendant’s failure to warn of the buried munitions. i. The FTCA’s “Effective Date” Provision Does Not Bar Claims Arising From The Defendant’s Conduct Prior To January 1, 1945 Because The Plaintiffs Claims Did Not Accrue Until After That Date; The FTCA Establishes Jurisdiction On The Basis Of When A Claim Accrues, Rather Than When The Tortious Conduct Occurs. By its effective date provision, the FTCA confers jurisdiction in district court for civil actions for money damages against the United States on claims ... accruing on and after January 1, 1945 ... in accordance with the law of the place where the act or omission occurred. 28 U.S.C. § 1346(b). It is the defendant’s position that the FTCA does not apply to claims arising out of acts or omissions that occurred before 1945, even if the injuries resulting from those acts or omissions occurred after 1945. According to the defendant, any claims arising from the Army’s burial of munitions during the 1917-1920 time period are barred by the FTCA’s effective date provision. The Court begins with the presumption" }, { "docid": "20317372", "title": "", "text": "admiralty jurisdiction of the federal courts, 28 U.S.C. § 1333, the Suits in Admiralty Act, 46 U.S.C. §§ 741-752, the Public Vessels Act, 46 U.S.C. § 781-790, and the Extension of Admiralty Jurisdiction Act, 46 U.S.C. § 740. The Court will separately discuss each of the nine counts in Third-Party Complaint A. A. Count I Count I of Third-Party Complaint A seeks noncontractual indemnification and contribution from the United States, as a seller of asbestos to certain of the defendants and to BIW, based upon the government’s alleged negligent failure to provide warnings regarding the hazards of asbestos exposure. Count I must be dismissed for lack of subject matter jurisdiction. The doctrine of sovereign immunity prevents this Court from exercising jurisdiction over a claim against the United States unless the United States has consented to suit on the claim. Honda v. Clark, 386 U.S. 484, 501, 87 S.Ct. 1188, 1197, 18 L.Ed.2d 244 (1967). Defendants urge that waiver of the United States immunity from suit on this claim can be found in the FTCA. The FTCA subjects the United States to liability for money damages ... for ... personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred. 28 U.S.C. § 1346(b); see also 28 U.S.C. § 2674. The United States does not deny either that it sold asbestos or that it failed to warn regarding the hazards of asbestos exposure. It contends, however, that Count I alleges conduct for which it cannot be liable by reason of 28 U.S.C. § 2680(a), the discretionary function exception to the government’s liability under the FTCA. Section 2680(a) provides in relevant part that the provisions of the FTCA shall not apply to (a) Any claim ... based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty" }, { "docid": "158669", "title": "", "text": "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). Summary judgment is appropriate when “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(c); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 2510-11, 91 L.Ed.2d 202 (1986); Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986). An issue must be both genuine and material to preclude the entry of summary judgment. Anderson, 477 U.S. at 247-48, 106 S.Ct. at 2509-10. An issue is genuine if there is sufficient evidence to support a rational finding either way. In making this determination, the non-movant’s evidence “is to be believed, and all justifiable inferences are to be drawn in [their] favor.” Id. at 255, 106 S.Ct. at 2513. “Only disputes of facts that might affect the outcome of the suit ... will properly preclude the entry of summary judgment.” Id. at 248, 106 S.Ct. at 2510. I. THE COURT HAS SUBJECT MATTER JURISDICTION OYER THE PLAINTIFF’S CLAIMS ARISING FROM THE DEFENDANT’S FAILURE TO WARN OF THE BURIED MUNITIONS. A. The plaintifPs claims are not barred by the FTCA’s “effective date” or “independent contractor” provisions; The plaintiff’s claims arising from the defendant’s failure to warn of buried munitions are not barred by the discretionary function provision. As a sovereign, the United States is immune from suit except if it has consented to be sued. United States v. Dalm, 494 U.S. 596, 608, 110 S.Ct. 1361, 1368, 108 L.Ed.2d 548 (1990). The FTCA waives sovereign immunity for civil suits against the United States for money damages ... for injury or loss of property, or personal injury ... caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his [or her] office or" }, { "docid": "18731767", "title": "", "text": "the decision whether or not to depict the aerial cable on the Sectional Chart was a “discretionary” act falling within the discretionary function exception of the FTCA. 28 U.S.C. § 2680(a). The United States asserted that the second claim for relief was barred because the United States had not erected, maintained, or owned the cable over its land and therefore had no legal duty under Colorado law to remove it or to warn of its existence. The district court granted summary judgment essentially adopting the arguments of the United States. Plaintiffs appeal the district court’s grant of summary judgment on both claims. I. Claims for money damages against the United States are barred under the doctrine of sovereign immunity except where the Congress has consented to such claims. See generally, Dalehite v. United States, 346 U.S. 15, 73 S.Ct. 956, 97 L.Ed. 1427 (1953). Under section 1346(b) of the FTCA, Congress consented to suits against the United States for money damages “caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred.” 28 U.S.C. § 1346(b). The Government’s liability under section 1346(b) is limited, however, by section 2680 which enumerates exceptions to the waiver of sovereign immunity under the FTCA. For instance, the doctrine of sovereign immunity continues to bar suits against the Government for certain discretionary acts of its employees. Specifically, under section 2680(a) the Government is immune from claims brought under 1346(b) “based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of the federal agency or an employee of the Government, whether or not the discretion involved be abused. ” 28 U.S.C. § 2680(a) (emphasis added). In support of its motion for summary judgment, the United States argued that NOAA employees exercised a discretionary function under section 2680(a) in excluding the Buckskin" } ]

[ { "docid": "22414756", "title": "", "text": "or after death.” It was held that they were not. But those gifts were not of the class now involved, gifts in contemplation of death, made before the passage of the .Act, which are expressly named by § 402 (c) as subject to its provisions. This Court has not passed directly on the constitutionality of the federal taxation of gifts made in contemplation of death. But taxation of transfers at death has been upheld, Knowlton v. Moore, 178 U. S. 41, as has, more recently, the taxation of gifts inter vivos, Bromley v. McCaughn, 280 U. S. 124; and we hold, as this Court has several times intimated, that the inclusion of this type of gifts in a single class with decedents’ estates to secure equality of taxation, and prevent evasion of estate taxes, is a permissible classification of an appropriate subject of taxation. See Nichols v. Coolidge, 274 U. S. 531, 542; Tyler v. United States, 281 U. S. 497, 505; Corliss v. Bowers, 281 U. S. 376, 378; Taft v. Bowers, 278 U. S. 470, 482; cf. Schlesinger v. Wisconsin, 270 U. S. 230, 239. The objection to the. tax chiefly urged in brief and argument, is that the taxing statute, as applied, is a denial of due process of law because retroactive. It is said that the statute is invalid not alone because it reaches a gift made before its enactment, but because it measures the tax by rates not in force when the gift was made, applied to the value of the property not when given, but at the uncertain later time of the death of the donor. This Court has held the taxation of gifts made, and completely vested beyond recall, before the passage of any statute taxing them, to be so palpably arbitrary and un reasonable as to infringe the -due process clause. Nichols v. Coolidge, supra; Untermyer v. Anderson, 276 U. S. 440; Coolidge v. Long, 282 U. S. 582. In Nichols v. Coolidge it was held that § 402 of the 1918 Act could not constitutionally be applied to a gift inter" } ]

[ { "docid": "17239446", "title": "", "text": "of course imperative that the tax be imposed on the transfer of the property in order to avoid the constitutional prohibition against unapportioned direct taxes. From this, it seems to us, it follows that the valuation of the estate should be made at the time of the transfer. The time of transfer is the time of death. Treas.Reg. 20.2031-1 (b). In Knowlton v. Moore, 1900, 178 U.S. 41, 56, 20 S.Ct. 747, 44 L.Ed. 969 the Supreme Court said, “tax laws of this nature in all countries rest in their essence upon the principle that death is the generating source from which the particular taxing-power takes its being and that it is the power to transmit, or the transmission from the dead to the living, on which such taxes are more immediately rested.” See Shedd’s Estate v. Commissioner, 9 Cir., 1956, 237 F.2d 345, 350, cert. denied, 352 U.S. 1024, 77 S.Ct. 590, 1 L.Ed.2d 596. Brief as is the instant of death, the court must pinpoint its valuation at this instant—the moment of truth, when the ownership of the decedent ends and the ownership of the successors begins. It is a fallacy, therefore, to argue value before—or—after death on the notion that valuation must be determined by the value either of the interest that ceases or of the interest that begins. Instead, the valuation is determined by the interest that passes, and the value of the interest before or after death is pertinent only as it serves to indicate the value at death. In the usual case death brings no change in the value of property. It is only in the few cases where death alters value, as well as ownership, that it is necessary to determine whether the value at the time of death reflects the change caused by death, for example, loss of services of a valuable partner to a small business. An examination of several instances where the value of a decedent’s property differs after death from its value during his life indicates that whether the subsequent value is increased or reduced, the valuation at death" }, { "docid": "22317759", "title": "", "text": "form of death duty, since it bears no-relation\" whatever to death. The “ generating source ” of such a gift is to be found in the facts of life and not in the circumstance of death. And the death afterward of the donor in no way changes the situation; that is to say, the death does not result in a shifting, or in the completion of a shifting, to the donfee of any economic benefit of property, which is the subject of a death tax, Chase Nat. Bank v. United States, 278 U. S. 327, 338; Reinecke v. Northern Trust Co., 278 U. S. 339, 346; Saltonstall v. Saltonstall, 276 U. S. 260, 271; nor does the death in such case bring into being, or ripen for the donee or anyone else, so far as the gift is concerned, any property right or interest which can be the subject of any form of death tax. Compare Tyler v. United States, 281 U. S. 497, 503. Complete ownership of the gift, together with all its incidents, has passed during the life of both donor and donee, and no interest of any kind remains to pass to one or cease in the other in consequence of the death which happens' afterward. The phrase “ in contemplation of or intended to take effect ... at or after his death,” found in the provisions of § 302 (c) of the act of 1926 and prior acts, as applied to fully executed gifts inter vivos, puts them in the same category for purposes of taxation with gifts causa mortis. In this light, the meaning and purpose of the provision were considered, in a recent decision of this court dealing with the Revenue Act of 1918. United States v. Wells, 283 U. S. 102, 116-117, 118: “The dominant purpose is to reach substitutes for-testamentary dispositions and thus to prevent the evasion of the estate tax. Nichols v. Coolidge, 274 U. S. 531, 542; Milliken v. United States, ante, p. 15. As the transfer may otherwise have all the indicia of a valid gift inter vivos, the" }, { "docid": "17239445", "title": "", "text": "unless you have the particulars which they embrace in mind”. As other courts have pointed out in referring to Edwards v. Slocum, the Supreme Court described the estate tax as one on “the interest which ceases by reason of the death” simply to distinguish it from a succession tax, which is calculated and graduated on the individual portion of the estate each heir or legatee receives rather than on the aggregate property passing from the decedent. Edwards v. Slocum did not involve the valuation of property for estate taxes. The statute applicable here is the general provision, Section 2033 of the Internal Revenue Code of 1954, 26 U.S.C.A. § 2033. This provides that “the gross estate shall include the value of all property * * * to the extent of the interest therein of the decedent at the time of his death.” The Regulations reiterate the truism that the tax is “an excise tax on the transfer of property at death and is not a tax on the property transferred.” Treas.Reg. 20.2033-1 (a). It is of course imperative that the tax be imposed on the transfer of the property in order to avoid the constitutional prohibition against unapportioned direct taxes. From this, it seems to us, it follows that the valuation of the estate should be made at the time of the transfer. The time of transfer is the time of death. Treas.Reg. 20.2031-1 (b). In Knowlton v. Moore, 1900, 178 U.S. 41, 56, 20 S.Ct. 747, 44 L.Ed. 969 the Supreme Court said, “tax laws of this nature in all countries rest in their essence upon the principle that death is the generating source from which the particular taxing-power takes its being and that it is the power to transmit, or the transmission from the dead to the living, on which such taxes are more immediately rested.” See Shedd’s Estate v. Commissioner, 9 Cir., 1956, 237 F.2d 345, 350, cert. denied, 352 U.S. 1024, 77 S.Ct. 590, 1 L.Ed.2d 596. Brief as is the instant of death, the court must pinpoint its valuation at this instant—the moment of truth," }, { "docid": "11954105", "title": "", "text": "v. McCaughn (C. C. A.) 34 F.(2d) 600, 602; Rosenberger v. McCaughn (C. C. A.) 25 F.(2d) 699, 700; Id., 278 U. S. 604, 49 S. Ct. 10, 73 L. Ed. 532. In Pennsylvania and in some other American jurisdictions, the rule is just the opposite. Such being the diversity of rules, we are not concerned with a question whether one is right and the other wrong, but with an altogether different question, whether a federal taxing act is to be put into effect in one jurisdiction and not in another according to the different ways in whieh the subject of the tax is looked upon. We do not believe the Congress intended, by the quoted provision of the act, that the estate tax in respect to the exercise of a general power of appointment should be imposed and collected at the will of the states or upon the accident of the citizenship of the taxpayer. Rather do we think it intended the tax should be laid, not on property and therefore not to be bound by a state rule of property, but on an event arising upon the death of the donee, that is, the exercise of a power of appointment effective on his death. The estate tax being a death tax, rests “upon the principle that death is the ‘generating source’ from which the authority to impose such taxes takes its being and ‘it is the power to transmit or the transmission or receipt of property by death which is the subject levied upon by all death duties.’ Knowlton v. Moore, 178 U. S. 41, 56, 57, 20 S. Ct. 747, 754, 44 L. Ed. 969.” Tyler v. United States, 281 U. S. 497, 502, 503, 50 S. Ct. 356, 358, 74 L. Ed. 991, 69 A. L. R. 758. “The question here, then, is, not whether there has been, in the strict sense of that word, a ‘transfer’ [or a ‘passing’] of the property by the death of the decedent, or a receipt of it by right of succession [or by a contingent right under the donor’s" }, { "docid": "3544715", "title": "", "text": "death. There was no gift here inter vivos. The decedent possessed, until his death, the full right to change the beneficiary. The tax rests on this fact. “The thing taxed is the transmission of property from the dead to the living.” Heiner v. Donnan, 285 U. S. 322, 52 S. Ct. 358, 359, 76 L. Ed. 772. “Tax laws of this nature in all countries rest in their essence upon the principle that death is the generating source from which the particular taxing power takes its being and that it is the power to transmit, or the transmission from the dead to the living, on which such taxes are more immediately rested. * * * It is the power to transmit or the transmission or receipt of property by death which is the subject levied upon by all death duties. * * * In other words, the public contribution which death duties exact is predicated on the passing of property as the result of death.” Knowlton v. Moore, 178 U. S. 41, 20 S. Ct. 747, 753, 44 L. Ed. 969; Heiner v. Donnan. supra. All of the cases in which these death duties have been examined, some involving life insurance, some trusts, Reinecke v. Northern Trust Co., 278 U. S. 339, 49 S. Ct. 123, 73 L. Ed. 410, 66 A. L. R. 397; Porter v. Commr., 288 U. S. 436, 438, 53 S. Ct. 451, 77 L. Ed. 880; some dower, Scott v. Commr. (C. C. A.) 69 F.(2d) 444, 92 A. L. R. 531; some joint tenancy, Gwinn v. Commr., 287 U. S. 224, 53 S. Ct. 157, 77 L. Ed. 270; and some tenancy by the entirety, have, whether denying or affirming the validity of the tax, hewed to the same line. Where death finally dissolves an interest in, stills the power of disposition as to, of is the final act of transmission of property, and the statute embraces the property, death duties have been sustained, without regard to when the uncompleted gift was initiated. Where the property is excluded by the terms of the statute," }, { "docid": "22681358", "title": "", "text": "decisions of the courts of Maryland and Pennsylvania follow the common law and are in accord in respect of the character and incidents of tenancy by the entirety. In legal contemplation the tenants constitute a unit; neither can dispose of any part of the estate without the consent of the other; and the whole continues in the survivor. In Maryland, such a tenancy may exist in personal property as well as in real estate. These decisions establish a state rule of property, by which, of course, this court is bound. Warburton v. White, 176 U. S. 484, 496. 1. The contention that, by including in the gross estate the value of property held by husband and wife as tenants by the entirety, the tax pro tanto becomes a direct tax — that is a tax on property — and therefore invalid without apportionment, proceeds upon the ground that no right in such property is transferred by death, but the survivor retains only what he already had. Section 201 imposes the tax “upon the transfer of the net estate ”; and if that section stood alone, the inclusion of such property in the gross estate of the decedent probably could not be justified by the terms of the statute. But § 202 definitely includes the property and brings it within the reach of the words imposing the tax; so that a basis for the constitutional challenge is present. Prior decisions of this court do not solve the problem thus presented, though what was said in Chase National Bank v. United States, 278 U. S. 327, 337-339; Reinecke v. Northern Trust Co., 278 U. S. 339, 348; and Saltonstall v. Saltonstall, 276 U. S. 260, 271, constitutes helpful aid in that direction. Death duties rest upon the principle that death is the “ generating source ” from which the authority to impose such taxes takes its being, and “ it is the power to transmit or the transmission or receipt of property by death which is the subject levied upon by all death duties.” Knowlton v. Moore, 178 U. S. 41, 56," }, { "docid": "22045695", "title": "", "text": "the tax is § 301 (a); and by that provision the tax is laid “ upon the transfer of the net estate of every decedent dying after the enactment of this act.” The event which gives rise to the tax is the death of the decedent, with the resulting transfer of his estate either by will or the law relating to intestacy. When, therefore, § 302 (c) includes within the purview of § 301 (a) a transfer inter vivos “ intended to take effect in possession or enjoyment at or after his death,” it does so upon the theory that such a transfer in effect is testamentary — that is to say, a substitute for either a disposition by will or a passing in virtue of intestacy. “ But such a transfer, not so made, embodies a transaction begun and completed wholly by and between the living, taxable as a gift (Bromley v. McCaughn, 280 U. S. 124), but obviously not subject to any form of death duty, since it bears no relation whatever to death. The ‘ generating source ’ of such a gift is to be found in the facts of life and not in the circumstance of death. And the death afterward of the donor in no way changes the situation; that is to say, the death does not result in a shifting, or in the completion of a shifting, to the donee of any economic benefit of property, which is the subject of a death tax, Chase Nat. Bank v. United States, 278 U. S. 327, 338; Reinecke v. Northern Trust Co., 278 U. S. 339, 346; Saltonstall v. Saltonstall, 276 U. S. 260, 271; nor does the death in such case bring into being, or ripen for the donee or anyone else, so far as the gift is concerned, any property right or interest which can be the subject of any form of death tax. Compare Tyler v. United States, 281 U. S. 497, 503. Complete ownership of the gift, together with all its incidents, has passed during the life of both donor ,and donee," }, { "docid": "22317758", "title": "", "text": "not include pure gifts inter vivos. The tax rests, in essence, “ upon the principle that death is the generating source from which the particular taxing power takes its being and that it is. the power to transmit, or the transmission from the dead to the living, on which such taxes áre more immediately rested. ... it is the power to transmit or the transmission or receipt-of property by death which is the subject levied upon by all death duties.” Knowlton v. Moore, 178 U. S. 41, 56, 57. The value of property transferred without consideration and in contemplation of death is included in the value of the gross estate of the decedent for the purposes of a death tax, because the transfer is considered to be testamentary in effect. Milliken v. United States, 283 U. S. 15, 23. But such a transfer, not so made, embodies a transaction begun and completed wholly by and between the living, taxable- as a gift (Bromley v. McCaughn, 280 U. S. 124), but obviously not subject to any form of death duty, since it bears no-relation\" whatever to death. The “ generating source ” of such a gift is to be found in the facts of life and not in the circumstance of death. And the death afterward of the donor in no way changes the situation; that is to say, the death does not result in a shifting, or in the completion of a shifting, to the donfee of any economic benefit of property, which is the subject of a death tax, Chase Nat. Bank v. United States, 278 U. S. 327, 338; Reinecke v. Northern Trust Co., 278 U. S. 339, 346; Saltonstall v. Saltonstall, 276 U. S. 260, 271; nor does the death in such case bring into being, or ripen for the donee or anyone else, so far as the gift is concerned, any property right or interest which can be the subject of any form of death tax. Compare Tyler v. United States, 281 U. S. 497, 503. Complete ownership of the gift, together with all its incidents," }, { "docid": "11033888", "title": "", "text": "enjoyment thereof is subject at the date of his death to any change through the exercise of a power to alter, amend, revoke, or terminate, or where any such power is relinquished in contemplation of decedent’s death, must be included in the value of the gross estate of the decedent for estate taxation purposes. But because Mary Tetzlaff, the wife, was still living at the date of his death, decedent had no power, from whatever source acquired, to alter, amend, revoke or terminate the enjoyment of the property and income transferred by this trust, and the Tax Court in conformity to the express terms of the trust agreement and of subdivision (d) of the Act so held. The real subject of taxation of this nature has been acutely familiar to the courts since its exercise. It is thus admirably and succinctly stated by Mr. Justice Stone in Chase National Bank v. United States, 278 U.S. 327, 338, 49 S.Ct. 126, 129, 73 L.Ed. 405, 63 A.L.R. 388: “Termination of the power of control at the time of death inures to the benefit of him who owns the property subject to the power and thus brings about, at death, the completion of that shifting of the economic benefits of property which is the real subject of the tax, just as effectively as would its exercise.” Compare Klein v. United States, 283 U. S. 231, 234, 51 S.Ct. 398, 75 L.Ed. 996. So here, no power of control m decedent existing at the date of decedent’s death, there were no economic benefits to shift and support the tax. It is uniformity recognized that “the power of taxation is a fundamental and imperious necessity of all government, not to be restricted by mere legal fictions.” Tyler v. United States, 281 U.S. 497, 503, 50 S.Ct. 356, 359, 74 L.Ed. 991, 69 A.L.R. 758. In that case Mr. Justice Sutherland referring to the opinion of Mr. Justice White in Knowlton v. Moore, 178 U.S. 41, 57, 20 S.Ct. 747, 44 L.Ed. 969, says: “The question here, then, is, not whether there has been, in" }, { "docid": "10406756", "title": "", "text": "but also the cases by the Supreme Court antecedent to the Halloclc case and many of our decisions subsequent thereto. We should make a no less careful review before announcing adherence to the views expressed in our opinion in the Lloyd case. In Knowlton v. Moore, 178 U. S. 41 (1900), the Supreme Court, speaking through Mr. Justice White, after reviewing the history and form of “death duties,” said: Although different inodes of assessing such duties prevail, and although they have different accidental names * * * nevertheless tax laws of this nature in all countries rest in their essence upon the principle that death is the generating source from which the particular power takes its being, and that it is the power to transmit, or the transmission from the dead to the living, on which such taxes are more immediately rested. * » * confusion of thought may arise unless it is always remembered that, fundamentally considered, it is the power to transmit or the transmission or receipt of property by death which is the subject levied upon by all death duties.- Section 202 (b) of the Revenue Act of 1916 provided for inclusion in the gross estate of any interest in property of which the decedent had at any time made a transfer, or created a trust, in contemplation of or intended to take effect in possession or enjoyment at or after death. Substantially the same provision has been continued in the law and is the portion of 302 (c) of the Revenue Act of 1926, as amended, with which we are concerned here. Shukert v. Allen, 273 U. S. 545, decided in 1927, arose under the Revenue. Act of 1918. The decedent therein, when he was 57 years of age, created a trust for the benefit of his children. The income was to accumulate for 30 years before distribution. The only question was whether the trust was intended to take effect at or after the decedent’s death. In deciding that it was not, the Supreme Court said“The transfer was immediate and out and out, leaving no interest" }, { "docid": "15656349", "title": "", "text": "inclusion of amounts in excess of this sum.” The foregoing statement malees it dear that Congress incorporated this provision in the statute for the sole purpose of requiring'the proceeds of all insurance, with the exception of the exemption specified, taken out by the decedent on his own life to be included in his taxable estate, although the insured or his executor has no direct control over insurance payable to a specific beneficiary so long as that beneficiary lives. A consideration of the nature of the tax further demonstrates the applicability of the statute to all insurance taken out by the decedent on his own life, qualified only by the exemption allowed, and also removes any doubt that may exist as tó the validity of the provision in question. The estate tax is imposed upon the privilege to transmit or the transmission or receipt of property by death and rests upon the principle that death is the generating source of valuable property rights not theretofore possessed or enjoyed by the recipient. Knowlton v. Moore, 178 U. S. 41, 57, 20 S. Ct. 747, 44 L. Ed. 969; Chase National Bank v. United States, 278 U. S. 327, 49 S. Ct. 126, 73 L. Ed. 405, 63 A. L. R. 388. The question in every case is not whether there has been a transfer, in the strict sense of the term, of property by death, but whether death has brought into being or ripened for the recipient of the donor’s bounty valuable property rights not theretofore fully enjoyed. Tyler et al. v. United States, 281 U. S. 497, 50 S. Ct. 356, 74 L. Ed. 991, 69 A. L. R. 758. In the last-mentioned case the court said at pages 502 and 503 of 281 U. S., 50 S. Ct. 356, 358: “A tax laid upon the happening of an event, as distinguished from its tangible fruits, is an indirect tax which Congress, in respect of some events not necessary now to be described more definitely, undoubtedly may impose. If the event is death and the result which is made the occasion" }, { "docid": "22045694", "title": "", "text": "shall during the life of his said daughter have no further individual or beneficial interest therein.” The grant was final and absolute in terms, and beyond the power of the grantor to revoke or alter. At the death of the grantor, neither of the contingencies upon which the trust estate would revert to the grantor had taken place. The commissioner assessed a deficiency tax against the estate upon the view that the grantor, having reserved the right to a revestment in him of the trust property, title to which he had conveyed, upon the happening of either of the contingencies mentioned, the transfer to the trustee was one “intended to take effect in possession or enjoyment at or after his death ” within the meaning of § 302 (c), Revenue Act of 1924, c. 234, 43 Stat. 253, 304. The Board of Tax Appeals decided against the commissioner’s view, 28 B. T. A. 107, and its holding was upheld by the court below. 75 F. (2d) 416. The substantive provision of the act which imposes the tax is § 301 (a); and by that provision the tax is laid “ upon the transfer of the net estate of every decedent dying after the enactment of this act.” The event which gives rise to the tax is the death of the decedent, with the resulting transfer of his estate either by will or the law relating to intestacy. When, therefore, § 302 (c) includes within the purview of § 301 (a) a transfer inter vivos “ intended to take effect in possession or enjoyment at or after his death,” it does so upon the theory that such a transfer in effect is testamentary — that is to say, a substitute for either a disposition by will or a passing in virtue of intestacy. “ But such a transfer, not so made, embodies a transaction begun and completed wholly by and between the living, taxable as a gift (Bromley v. McCaughn, 280 U. S. 124), but obviously not subject to any form of death duty, since it bears no relation whatever to" }, { "docid": "16466825", "title": "", "text": "Machinen' Act of 1921 (Pub. Raws N. C. 1921, c. 38). It is also true that, in his final settlement, the executor is entitled to deduct the amount of tax so paid by him as his other expenses lawfully incurred in the administration of the estate. These propositions are all abundantly sustained by the authorities cited by plaintiff’s counsel and_ decided cases in this and other states. It is held by the Supreme Court of this state that expenses incident to the administration of the estate of a deceased person are not debts or claims against the decedent, but are the personal liabilities of the executor, which are allowed him as disbursement for the expenses of administration of the estate. In Knowlton v. Moore, 178 U. S. 44, 48, 20 Sup. Ct. 747, 753 (44 L. Ed. 969), Mr. Justice White reviews the history of “death duties,” and “estate taxes” in this'and'other countries. He thus concludes the discussion of the subject: “Although different modes of assessing such duties prevail, and although they Rave different accidental names, such as probate duties, stamp duties, taxes on the transactio'n, or the act of passing of ah estate or a succession, legacy taxes, estate taxes, or privilege taxes, nevertheless tax laws of this nature in all countries rest in their essence upon the principle that death is the generating source from which the particular taxing power takes its being, and that it is the power to transmit, or the transmission from the dead to the living, on which such taxes are more immediately rested.” In United States v. Perkins, 163 U. S. 625, 16 Sup. Ct. 1073, ‘41 L. Ed. 287, it is said: “If it be true that the right of testamentary disposition is purely statutory, the state has a right to require a contribution to the public treasury before the bequest shall take effect. Thus the tax is not upon the property, in the ordinary sense of the term, but upon the right to dispose of it, and it is not until it has yielded its contribution to the state that it" }, { "docid": "3544714", "title": "", "text": "not be greatly discussed. We shall content ourselves with pointing out wherein they fail. And first, of the claim that none of the proceeds may be counted in the gross estate. This claim, founded on the erroneous idea that the tax is on the proceeds themselves, expands into three contentions: (1) That since under Louisiana laws policies taken out by the husband on his own life, naming the wife as beneficiary, are her separate property, their proceeds form no part of his estate. (2) It is not a proper construction of the taxing act to give it retroactive application to policies taken out, as these were, prior to the Revenue Act of 1918 (40 Stat. 1057), the first to tax such amounts receivable. (3) If so construed, the act meets, and falls under, constitutional objections. We cannot at all agree. The tax is not upon the proceeds of the policies; it is not upon the interest to which the beneficiary succeeded at death, but upon the right of disposition and control the insured had at death. There was no gift here inter vivos. The decedent possessed, until his death, the full right to change the beneficiary. The tax rests on this fact. “The thing taxed is the transmission of property from the dead to the living.” Heiner v. Donnan, 285 U. S. 322, 52 S. Ct. 358, 359, 76 L. Ed. 772. “Tax laws of this nature in all countries rest in their essence upon the principle that death is the generating source from which the particular taxing power takes its being and that it is the power to transmit, or the transmission from the dead to the living, on which such taxes are more immediately rested. * * * It is the power to transmit or the transmission or receipt of property by death which is the subject levied upon by all death duties. * * * In other words, the public contribution which death duties exact is predicated on the passing of property as the result of death.” Knowlton v. Moore, 178 U. S. 41, 20 S. Ct." }, { "docid": "22045696", "title": "", "text": "death. The ‘ generating source ’ of such a gift is to be found in the facts of life and not in the circumstance of death. And the death afterward of the donor in no way changes the situation; that is to say, the death does not result in a shifting, or in the completion of a shifting, to the donee of any economic benefit of property, which is the subject of a death tax, Chase Nat. Bank v. United States, 278 U. S. 327, 338; Reinecke v. Northern Trust Co., 278 U. S. 339, 346; Saltonstall v. Saltonstall, 276 U. S. 260, 271; nor does the death in such case bring into being, or ripen for the donee or anyone else, so far as the gift is concerned, any property right or interest which can be the subject of any form of death tax. Compare Tyler v. United States, 281 U. S. 497, 503. Complete ownership of the gift, together with all its incidents, has passed during the life of both donor ,and donee, and no interest of any kind remains to pass to one or cease ha the other in consequence of the death which happens afterward.” (Ital. added.) Heiner v. Donnan, 285 U. S. 312, 322-323. The property brought into the estate by subdivision 302 (c) for the purpose of the tax is, as said by this court in Reinecke v. Northern Trust Co., 278 U. S. 339, 348, “. . . either property transferred in contemplation of death or property passing out of the control, possession or enjoyment of the decedent at his death. ... In the light of the general purpose of the statute and the language of [§ 301 (a)] explicitly imposing the tax on net estates of decedents, we think it at least doubtful whether the trusts or interests in a trust intended to be reached by the phrase in [§ 302 (c)] 'to take effect in possession or enjoyment at or after his death/ include any others than those passing from the possession, enjoyment or control of the donor at his death" }, { "docid": "11033889", "title": "", "text": "time of death inures to the benefit of him who owns the property subject to the power and thus brings about, at death, the completion of that shifting of the economic benefits of property which is the real subject of the tax, just as effectively as would its exercise.” Compare Klein v. United States, 283 U. S. 231, 234, 51 S.Ct. 398, 75 L.Ed. 996. So here, no power of control m decedent existing at the date of decedent’s death, there were no economic benefits to shift and support the tax. It is uniformity recognized that “the power of taxation is a fundamental and imperious necessity of all government, not to be restricted by mere legal fictions.” Tyler v. United States, 281 U.S. 497, 503, 50 S.Ct. 356, 359, 74 L.Ed. 991, 69 A.L.R. 758. In that case Mr. Justice Sutherland referring to the opinion of Mr. Justice White in Knowlton v. Moore, 178 U.S. 41, 57, 20 S.Ct. 747, 44 L.Ed. 969, says: “The question here, then, is, not whether there has been, in the strict sense of that word, a ‘transfer’ of the property by the death of the decedent, or a receipt of it by right of succession, but whether the death has brought into being or ripened for the survivor, property rights of such character as to make appropriate the imposition of a tax upon that result (which Congress may call a transfer tax, a death duty or anything else it sees fit), to be measured, in whole or in part, by the value of such rights.” In the case before us the death of the decedent neither brought into being nor ripened for the survivors property rights of such character as to make appropriate the imposition of a tax upon that result. In its opinion the Tax Court stated that respondent (petitioner here) attempted to raise a new issue in his brief after submission, asserting that the property transferred to decedent’s wife on or about November 1, 1935, was used to discharge decedent’s obligations to support his family under the provisions of the Minnesota law." }, { "docid": "10406759", "title": "", "text": "the tax, was complete as soon as the trust was created, and the statute indicates no purpose to tax completed gifts made by the donor in his lifetime, not in contemplation of death, where he has retained no control, possession, or enjoyment of the property transferred. May v. Heiner, 281 U. S. 238, involved the transfer of property in trust to pay the income to decedent’s husband for life, then to herself for life, with remainder over to her children, their distributees or appointees. The Court held that the transfer was not made in contemplation of or intended to take effect in possession or enjoyment at or after death and that it was not testamentary in character. It was complete when made and no interest in the property held under the trust deed passed from the dead to the living. The opinion quotes with approval from Reinecke v. Northern Trust Co., supra. “In its plan and scope the tax is one imposed on transfers at death or made in contemplation of death and is measured by the value at death of the interest which is transferred.” Chase National Bank v. United States, 278 U. S. 327, also decided in 1929, involved policies of insurance in which the decedent had reserved the right to change the beneficiaries. The Court held that the retention by the decedent of control over the benefits, with power to direct their future enjoyments until his death, “brings about, at death, the completion of that shifting of the economic benefits of property which is the real subject of the tax.” In other words, death operated as an effective transfer by cutting the strings with which the decedent might pull back the proceeds of the policies and bestow them on another. Thus the value of the polices at the time of death was properly includible in his gross estate. In Tyler v. United States, 281 U. S. 497, decided in 1930, the Supreme Court considered the question whether property owned by a husband and wife as tenants by the entirety should be included in the gross estate of" }, { "docid": "11315880", "title": "", "text": "cited.] ***** \"The two contracts must be considered together. To say they are distinct transactions is to ignore actuality, for it is conceded on all sides and was found as a fact by the Board of Tax Appeals that the ‘insurance’ policy would not have been issued without the annuity contract. * * * “Considered together, the contracts wholly fail to spell out any element of insurance risk. * * *” The Supreme Court then held the proceeds were taxable under § 302(c), “as a transfer to take effect in possession or enjoyment at or after death.” Accordingly, so far as the first question is concerned, the decision of the Board of Tax Appeals is reversed. See, also, Keller’s Estate v. Commissioner, 312 U.S. 543, 61 S.Ct. 651, 85 L.Ed. 1032, affirming 3 Cir., 113 F.2d 833. On the second question, the Commissioner argues, “The value at the decedent’s death of the joint and survivor annuity contracts should be included in the gross estate of the decedent.” He urges “that these simultaneous transactions constituted in the aggregate a substitute for a testamentary disposition, * * *” within the purview of § 302(c). The Federal Estate Tax is levied upon the privilege of transmission of property at death. Saltonstall v. Saltonstall, 276 U.S. 260, 270, 48 S.Ct. 225, 72 L.Ed. 565. It is “death duties,” as distinguished from a legacy or succession tax. It does not tax the interest to which the legatees and devisees succeed on death, but the interest which ceased by reason of death; what is imposed is an excise upon the transfer of an estate upon death of the owner. Nichols v. Coolidge, 274 U.S. 531, 537, 47 S.Ct. 710, 71 L.Ed. 1184, 52 A.L.R. 1081; Young Men’s Christian Ass’n v. Davis, 264 U.S. 47, 50, 44 S.Ct. 291, 68 L.Ed. 558; Edwards v. Slocum, 264 U.S. 61, 62, 44 S.Ct. 293, 68 L.Ed. 564; Knowl-ton v. Moore, 178 U.S. 41, 47, 49, 20 S.Ct. 747, 44 L.Ed. 969. The Supreme Court, in Reinecke v. Northern Trust Co., 278 U.S. 339, 347, 49 S.Ct. 123, 125, 73" }, { "docid": "22317757", "title": "", "text": "first question be in the negative, is the second sentence of section 302 (c) of the revenue act of 1926 void because repugnant to sections 1111, 1113 (a), 1117, and .1122 (c) of the same act?” A negative answer to the first question, if made, must rest either upon the ground that Congress has the constitutional power to deny to the representatives of the estate of a decedent the right to show by competent evidence that a gift made within two years prior to the death of the decedent was in fact not made in contemplation of death; or upon the theory that, although the tax in question is imposed as a death transfer tax, it nevertheless may be sustained as a gift tax. First Section 301 of the Revenue Act of 1926 imposes-a tax “ upon the transfer of the net estate of every decedent,” etc. There can be no doubt as to the meaning of this language. The thing taxed is the .transmission of property from the dead to the living. It does not include pure gifts inter vivos. The tax rests, in essence, “ upon the principle that death is the generating source from which the particular taxing power takes its being and that it is. the power to transmit, or the transmission from the dead to the living, on which such taxes áre more immediately rested. ... it is the power to transmit or the transmission or receipt-of property by death which is the subject levied upon by all death duties.” Knowlton v. Moore, 178 U. S. 41, 56, 57. The value of property transferred without consideration and in contemplation of death is included in the value of the gross estate of the decedent for the purposes of a death tax, because the transfer is considered to be testamentary in effect. Milliken v. United States, 283 U. S. 15, 23. But such a transfer, not so made, embodies a transaction begun and completed wholly by and between the living, taxable- as a gift (Bromley v. McCaughn, 280 U. S. 124), but obviously not subject to any" }, { "docid": "11954106", "title": "", "text": "bound by a state rule of property, but on an event arising upon the death of the donee, that is, the exercise of a power of appointment effective on his death. The estate tax being a death tax, rests “upon the principle that death is the ‘generating source’ from which the authority to impose such taxes takes its being and ‘it is the power to transmit or the transmission or receipt of property by death which is the subject levied upon by all death duties.’ Knowlton v. Moore, 178 U. S. 41, 56, 57, 20 S. Ct. 747, 754, 44 L. Ed. 969.” Tyler v. United States, 281 U. S. 497, 502, 503, 50 S. Ct. 356, 358, 74 L. Ed. 991, 69 A. L. R. 758. “The question here, then, is, not whether there has been, in the strict sense of that word, a ‘transfer’ [or a ‘passing’] of the property by the death of the decedent, or a receipt of it by right of succession [or by a contingent right under the donor’s will], but whether the death has brought into being or ripened for the survivor, property rights of such character as to make appropriate the imposition of a tax upon that result (which Congress may call a transfer tax, a death duty or anything else it sees fit), to be measured, in whole or in part, hy the value of such rights.” Tyler v. United States, 281 U. S. 497, 502, 503, 50 S. Ct. 356, 359, 74 L. Ed. 991, 69 A. L. R. 758; U. S. v. Provident Trust Co. (C. C. A.) 35 F.(2d) 339; Lang v. Commissioner, supra. Recognizing this as the essence of such tax legislation as that-here in question, the Supreme Court on another subparagraph of a like section of another revenue act openly disregarded the Maryland and Pennsylvania state rules of property in respect to tenancy by the entirety as not controlling on a question of taxation and sustained the federal tax as imposed not upon property but upon the transmission occasioned by death of one of the spouses." } ]

[ { "docid": "23383632", "title": "", "text": "the expenses and costs associated with a return to court. In response, Mr. Howell filed a pro se objection describing his travel difficulties — leaving a job placement workshop early and requiring his father to miss work to drive him 1200 miles round-trip for the court appearance. The district court denied plaintiffs postjudgment motion. On appeal, this court reviews that ruling for abuse of discretion. Adams v. Reliance Standard Life Ins. Co., 225 F.3d 1179, 1186 n. 5 (10th Cir.2000). “ ‘The abuse of discretion standard includes review to determine that the discretion was not guided by erroneous legal conclusions.’” United States v. Johnston, 146 F.3d 785, 792 (10th Cir.1998) (quoting Koon v. United States, 518 U.S. 81, 100, 116 S.Ct. 2035, 135 L.Ed.2d 392 (1996)). The Federal Rules of Civil Procedure provide that a postjudgment motion may “aris[e] under either Rule 59(e) (motion to alter or amend the judgment) or Rule 60(b) (relief from judgment for mistake or other reason). The[se] two rules serve different purposes and produce different consequences, both substantive and procedural.” Sanders v. Clemco Indus., 862 F.2d 161, 168 (8th Cir.1988) (citation and footnote omitted). Here, plaintiffs motion asked the court to reopen the judgment based on counsel’s mistake, inadvertence, or excusable neglect: the reasons expressed in Rule 60(b)(1). It asked for an opportunity to present her damages case in the first instance, not the “reconsideration of matters properly encompassed in a decision on the merits” contemplated by Rule 59(e). Ostemeck v. Ernst & Whinney, 489 U.S. 169, 174, 109 S.Ct. 987, 103 L.Ed.2d 146 (1989) (internal quotation marks omitted). Notwithstanding the clear import of plaintiffs motion, the district court construed it as a motion to alter or amend the judgment pursuant to Rule 59(e). And a Rule 59(e) motion is normally granted “only to correct manifest errors of law or to present newly discovered evidence.” Adams, 225 F.3d at 1186 n. 5 (internal quotation marks omitted). Consequently, the court reviewed the circumstances, determined that plaintiff had “not demonstrated that a manifest error of law ha[d] occurred,” so' there was no “cause for vacating the ..." } ]

[ { "docid": "17393656", "title": "", "text": "with this question (indeed, the plaintiff there had not filed any post-judgment motion). To apply Rost to the materially different configuration of this case would undercut the procedural protections erected by the Civil Rules to safeguard the finality of judgments. See, e.g., Fed.R.Civ.P. 59(e), 60(b). That ends this aspect of the case. We hold that a passing request for contingent leave to file an amended complaint, made in an opposition to a motion to dismiss, is insufficient, in and of itself, to bring a post-judgment motion for reconsideration within the orbit of Rule 15(a). Put another way, such a request is without effect where, as here, no appeal is taken from the granting of the underlying motion to dismiss. Consequently, the plaintiffs’ contin gent request, embodied in a single sentence at the tail end of their lengthy and heated opposition to the defendants’ motions to dismiss, did not transmogrify their post-judgment motion for reconsideration into a Rule 15(a) motion. Accordingly, the denial of that motion must be evaluated under the more stringent requirements that apply to motions for relief from judgment. Only if the plaintiffs have satisfied those requirements will we have occasion to decide whether the district court abused its discretion in denying leave to amend under Rule 15(a). In their motion for reconsideration, the plaintiffs mention two such rules: Rule 59(e) and Rule 60(b). The former rule provided at the relevant time, see swpra note 1, that a “motion to alter or amend a judgment must be filed no later than 10 days after the entry of the judgment.” Fed.R.Civ.P. 59(e). This time limit is mandatory. See Fed.R.Civ.P. 6(b) (prohibiting any extension of time under Rule 59(e)). An untimely motion under Rule 59(e) is a nullity. Morris v. Unum Life Ins. Co., 430 F.3d 500, 502 (1st Cir.2005). The plaintiffs filed their first motion for reconsideration on December 4, 2008. Viewed as a Rule 59(e) motion, that motion was timely; that is, the motion was filed within ten business days after the district court’s entry of judgment. But that motion is not before us: the district court denied" }, { "docid": "22296748", "title": "", "text": "9, 2004. In that motion, Cano “respectfully requested] the Court under Rule 59(e) to reconsider and alter or amend the order on March 26, 2004 denying her Rule 60 motion.” She argued that: (1) the district court denied her due process rights by failing to grant her an evi-dentiary hearing and to make factual findings on the evidence she had submitted; (2) a three-judge court was required to hear her claim; (3) prospective application of Roe and Doe was unjust because of the substantial legal and substantive changes in the law since then; and (4) the district court subverted the purpose of Rule 60(b) by denying her motion “summarily.” The district court denied the Rule 59(e) motion on February 23, 2005. Cano filed her notice of appeal to this Court on March 23, 2005, which seeks review of the district court’s denials of both the Rule 60(b) and Rule 59(e) motions. Appellees argue that we do not have jurisdiction because, inter alia, Cano failed to file a timely notice of appeal of the denial of her Rule 60(b) motion. We have jurisdiction because Cano’s Rule 59(e) motion requesting that the district court reconsider the denial of her Rule 60(b) motion for relief was timely since it was filed within ten days of that denial, thus tolling the time to file the notice of appeal to this Court. See Williams v. Bolger, 633 F.2d 410, 413 (5th Cir.1980) (explaining that a timely filed Rule 59(e) motion requesting reconsideration of the denial of a Rule 60(b) motion tolls the time for appealing); see also Fed.R.Civ.P. 59(e) (“Any motion to alter or amend a judgment shall be filed no later than 10 days after entry of the judgment”). This circumstance is distinguishable from the cases cited by appellees where the same party filed successive Rule 59 motions more than ten days after final judgment. In those cases, the time to file a notice of appeal did not toll a second time. See, e.g., Wansor v. George Hantscho Co., Inc., 570 F.2d 1202, 1206 (5th Cir.1978) (noting that a “motion to reconsider an order" }, { "docid": "401897", "title": "", "text": "from judgment for mistake or other reason). See Spinar v. South Dakota Bd. of Regents, 796 F.2d 1060, 1062 (8th Cir.1986). The two rules serve different purposes and produce different consequences, both substantive and procedural. See A.D. Weiss Lithograph Co. v. Illinois Adhesive Prods. Co., 705 F.2d 249, 249-50 (7th Cir.1983) (per curiam). When the moving party fails to specify the rule under which it makes a postjudgment motion, that party leaves the characterization of the motion to the court’s somewhat unenlightened guess, subject to the hazards of the unsuccessful moving party losing the opportunity to present the merits underlying the motion to an appellate court because of delay. Sanders, 862 F.2d at 168 (footnotes omitted). Plaintiffs’ failure to identify the authority for their motion to reconsider has left them with precisely the dangers identified by the court in Sanders. The court’s “somewhat unenlightened guess” here is that the motion, filed within ten days after the judgment, was intended to be made pursuant to FedR.Civ.P. 59(e); Sanders, 862 F.2d at 168-69 (distinguishing between of a motion filed within ten days of the judgment, deemed to be made pursuant to Rule 59(e), and one made later, deemed to be made pursuant to Rule 60(b)). Plaintiffs have done nothing to discount defendants’ construction of the motion as having been made pursuant to that rule, and, indeed, referred to the motion in oral argument as having been made pursuant to FedR.Civ.P. 59(e). Although the court will first consider the standards for a motion made pursuant to Rule 59(e) first, as the most likely authority upon which plaintiffs’ motion to reconsider is based, the court will also consider the standards applicable to a motion made pursuant to Rule 60(b). a. Rule 59(e) motion to alter or amend Federal Rule of Civil Procedure 59(e) provides as follows: (e) Motion to Alter or Amend a Judgment. A motion to alter or amend the judgment shall be served not later than 10 days after entry of the judgment. FedR.Civ.P. 59(e). Thus, Fed.R.Civ.P. 59(e) empowers a district court to alter or amend original judgments. FedR.Civ.P. 59(e). “Although the" }, { "docid": "12538126", "title": "", "text": "for dismissal with prejudice under Federal Rule of Civil Procedure 37(b)(2)(C). On May 4, 1987, the district court granted the motion and dismissed the case. Approximately seven months later, on December 28, 1987, Townsend filed a “motion to reconsider” which the court denied on January 26, 1988, on the ground that it was untimely. Three days later, Townsend appealed the order denying his motion for reconsideration. It is not clear whether the district court treated Townsend’s motion as one to alter or amend judgment under Federal Rule of Civil Procedure 59(e) or as a motion for postjudgment relief under Federal Rule of Civil Procedure 60(b). In either case, we conclude that the district court properly dismissed Townsend’s motion as untimely. Under Rule 59(e), Townsend had ten days from the May 4, 1987, dismissal order to file a motion to alter the judgment. This he failed to do, and therefore, the district court was without jurisdiction to consider such a motion. See Spinar v. South Dakota Bd. of Regents, 796 F.2d 1060, 1062 (8th Cir.1986). Under Rule 60(b), relief may be granted for, inter alia, “mistake, inadvertence, surprise, or excusable neglect” or “any other reason justifying relief from the operation of the judgment.” See Fed.R. Civ.P. 60(b)(1) and (6). However, when the alleged error could have been corrected by appeal, this court requires that the Rule 60(b) motion be made within the thirty-day time period for filing a notice of appeal, so as to prevent its use as a substitute for timely appeal on the underlying merits. See Fox v. Brewer, 620 F.2d 177, 180 (8th Cir.1980); Hoffman v. Celebrezze, 405 F.2d 833, 836 (8th Cir.1969). Townsend’s “motion to reconsider” was not made within thirty days of the district court’s original dismissal of his complaint, and his appeal raises virtually the same issue that would have been posed had he timely appealed that dismissal: Whether his medical situation constituted good cause or excusable neglect such that the district court’s refusal to grant relief from the dismissal was an abuse of discretion. Accordingly, we affirm the order of the district court dismissing" }, { "docid": "12538125", "title": "", "text": "PER CURIAM. Orlando Townsend appeals pro se from the order of the District Court for the District of Nebraska dismissing as untimely his motion for reconsideration of an order dismissing his complaint for failure to comply with discovery. For reversal, Townsend argues that the district court abused its discretion in dismissing the motion, because his psychologist advised him to avoid circumstances that would cause “excessive mental duress” including “the grueling nature that deposition taking may entail.” For the following reasons, we affirm. Townsend, a black male, began working for the Terminal Packaging Company (Terminal Packaging) in August 1983, and was discharged in February 1985 for repeated tardiness. On April 21, 1986, he filed suit in federal court for employment discrimination under 42 U.S.C. § 1981 against Terminal Packaging and one of its employees, Pat Ryan. During the course of discovery, Townsend failed to appear for depositions on three occasions, including one occasion when the magistrate had ordered him to appear. After he also failed to attend a scheduled pretrial conference, Terminal Packaging and Ryan moved for dismissal with prejudice under Federal Rule of Civil Procedure 37(b)(2)(C). On May 4, 1987, the district court granted the motion and dismissed the case. Approximately seven months later, on December 28, 1987, Townsend filed a “motion to reconsider” which the court denied on January 26, 1988, on the ground that it was untimely. Three days later, Townsend appealed the order denying his motion for reconsideration. It is not clear whether the district court treated Townsend’s motion as one to alter or amend judgment under Federal Rule of Civil Procedure 59(e) or as a motion for postjudgment relief under Federal Rule of Civil Procedure 60(b). In either case, we conclude that the district court properly dismissed Townsend’s motion as untimely. Under Rule 59(e), Townsend had ten days from the May 4, 1987, dismissal order to file a motion to alter the judgment. This he failed to do, and therefore, the district court was without jurisdiction to consider such a motion. See Spinar v. South Dakota Bd. of Regents, 796 F.2d 1060, 1062 (8th Cir.1986). Under" }, { "docid": "14234217", "title": "", "text": "for reconsideration’ that is not described by any particular rule of federal civil procedure,” it has also identified the usual bases upon which such motions are construed to have been made in Sanders v. Clemco Indus., 862 F.2d 161 (8th Cir.1988): Federal courts have construed this type of motion as arising under either Rule 59(e) (motion to alter or amend the judgment) or Rule 60(b) (relief from judgment for mistake or other reason). See Spinar v. South Dakota Bd. of Regents, 796 F.2d 1060, 1062 (8th Cir.1986). The two rules • serve different purposes and produce different consequences, both substantive and procedural. See A.D. Weiss Lithograph Co. v. Illinois Adhesive Prods. Co., 705 F.2d 249, 249-50 (7th Cir.1983) (per cu-riam). When the moving party fails to specify the rule under which it makes a ■ postjudgment motion, that party leaves the characterization of the motion to the court’s somewhat unenlightened guess, subject to the hazards of the unsuccessful moving party losing the opportunity to present the merits underlying the motion to an appellate court because of delay. Sanders, 862 F.2d at 168 (footnotes omitted). Because plaintiffs “motion to reconsider” suffers from precisely this deficiency of identification of the rule upon which it is based, and indeed fails to identify the standards by which such motions, if they exist, are to be judged, the court will briefly discuss the standards applicable to each kind of motion, either pursuant to Rule 59(e) or 60(b), and apply both, at least initially. Federal Rule of Civil Procedure 59(e) provides as follows: (e) Motion to Alter or Amend a Judgment. A motion to alter or amend the judgment shall be .served not later than 10 days after entry of the judgment. Fed.R.Civ.P. 59(e). Thus, FedR.Civ.P. 59(e) empowers a district court to alter or amend original judgments. FedR.Civ.P. 59(e). “Although the words ‘alter or amend’ imply something less than ‘set aside,’ a court may use Rule 59(e) to set aside the entire judgment.” Sanders v. Clemco Indus., 862 F.2d 161, 168 n. 13 (8th Cir.1988) (citing AD. Weiss Lithograph Co. v. Illinois Adhesive Prods. Co., 705" }, { "docid": "22557791", "title": "", "text": "“alone is a controlling factor against granting relief.” Fox, 620 F.2d at 180; see United States v. Whitford, 758 F.2d 329, 331 (8th Cir.1985); Cline, 518 F.2d at 778-79. Second, because Sanders’ motion asserted only a previously ruled upon legal matter that he could have raised on a timely appeal, the district court was not required to grant relief under Rule 60(b) as a substitute for Sanders’ exercising his right to appeal the alleged error. See Spinar, 796 F.2d at 1062-63. Accordingly, the district court properly denied the motion for reconsideration, considering that motion as made under Rule 60(b)(1). C. Summary of Proper Procedure for Postjudgment Motions and Appeals As a reminder to lawyers who practice in the federal courts, we review the essential procedures for preserving full appellate rights when filing motions challenging judgments rendered in civil bench trials, other than motions specifically enumerated in Rule 60(b). 1. Aggrieved parties in bench trials should not file motions labeled “motion for reconsideration” in federal district court. The Federal Rules of Civil Procedure do not provide for such a motion. Instead, the motion should be properly designated under the rule authorizing the motion, such as Rule 52 or 59. 2. Such a postjudgment motion must be made within ten days to toll the time limitations for taking the appeal and to provide the trial court with jurisdiction to decide the motion. 3. The time for appeal (thirty days in the ordinary case; sixty days when the United States, its officer or agency is a party) thereafter runs from the entry of the judge’s order on the motion. A notice of appeal from the judgment will permit the appellant to present on appeal all preserved claims of error, pretrial, trial and posttrial. We add these caveats: (a) A notice of appeal preceding a timely filed postjudgment motion under Rule 50(b), 52(b) or 59 is premature. Fed.R.App.P. 4(a)(4). The party must file a new notice of appeal. A good suggestion for parties seeking to appeal is to wait at least ten days after entry of judgment before filing a notice of appeal. (b)" }, { "docid": "23530611", "title": "", "text": "plaintiff’s claims, and Ms. Hatfield now appeals. II Before addressing the merits of plaintiff’s claims, we must first resolve a jurisdictional issue. Defendants contend that plaintiffs notice of appeal from the district court’s order granting summary judgment was untimely and that, consequently, this court only has jurisdiction to review the district court’s August 27, 1993 order denying plaintiffs “motion for reconsideration.” On August 18, 1993 — eleven business days after the district court entered its summary judgment order — plaintiff filed a document entitled “Motion for Reconsideration of Order Granting Summary Judgment or in the Alternative a Notice of Appeal” (the “combined document”). On August 27, the district court denied plaintiff’s motion. Plaintiff then filed a separate notice of appeal on September 24. The Federal Rules of Appellate Procedure require litigants in civil cases to file a notice of appeal “with the clerk of the district court within 30 days after the date of entry of the judgment or order appealed from.” Fed. RApp.P. 4(a)(1). Plaintiff’s September 24 filing was therefore untimely as a notice of appeal from the district court’s summary judgment order; it was timely only as a notice of appeal from the district court’s denial of plaintiff’s “motion to reconsider.” If, however, the August 18 combined document constituted a valid notice of appeal from the summary judgment order, it was timely, and this court would have jurisdiction to review the merits of plaintiffs appeal. The Federal Rules of Civil Procedure recognize no “motion for reconsideration.” Van Skiver v. United States, 952 F.2d 1241, 1243 (10th Cir.1991), cert. denied, — U.S. -, 113 S.Ct. 89, 121 L.Ed.2d 51 (1992). Instead, this court construes such a filing in one of two ways. If the motion is filed within ten days of the district court’s entry of judgment, the motion is treated as a motion to alter or amend the judgment under Fed. R.Civ.P. 59(e). Id. Alternatively, if the motion is filed more than ten days after the entry of judgment, it is considered a motion seeking relief from the judgment under Fed. R.Civ.P. 60(b). Id. This distinction can be" }, { "docid": "23514638", "title": "", "text": "U.S.C. § 1331 and we have appellate jurisdiction under 28 U.S.C. § 1291. A.. Procedural Issues Before turning to the merits, we must address three procedural issues. First, Tyco argues that, because Wiest filed his Motion for Reconsideration twenty days after the District Court entered its dismissal Order, the Motion was untimely under E.D. Pa. L.R. 7.1(g), which establishes a fourteen day period to file motions for reconsideration. As a result, Tyco asserts that we lack jurisdiction over Wiest’s appeal from the District Court’s denial of reconsideration. We see no jurisdictional bar due to Wiest’s failure to move for reconsideration within the time constraints established by a local rule of court. We have recognized that, in the context of a Federal Rule of Civil Procedure 59(e) motion to alter or amend a judgment, the prescribed time limits are claims-processing rules, rather than jurisdictional rules. Lizardo v. United States, 619 F.3d 273, 276-77 (3d Cir.2010). If the time limit contained within Rule 59(e) is not jurisdictional, we cannot see how the time limit contained within Local Rule 7.1(g) is jurisdictional. In any event, we need not address the consequences of an untimely motion for reconsideration under a local rule because we construe Wiest’s motion as one under Rule 59(e). See, e.g., Fed. Kemper Ins. Co. v. Rauscher, 807 F.2d 345, 348 (3d Cir.1986) (“For purposes of Rule 4(a) of the Federal Rules of Appellate Procedure, we view a motion characterized only as a motion for reconsideration as the functional equivalent of a Rule 59(e) motion to alter or amend a judgment.”) (internal quotation marks omitted); see also Green v. Drug Enforcement Admin., 606 F.3d 1296, 1299 (11th Cir.2010) (noting the prevalence of courts construing motions for reconsideration as Rule 59(e) motions); Auto Servs. Co. v. KPMG, LLP, 537 F.3d 853, 856 (8th Cir.2008) (“A ‘motion for reconsideration’ is not described in the Federal Rules of Civil Procedure, but such a motion is typically construed as either a Rule 59(e) motion to alter or amend the judgment or as a Rule 60(b) motion for relief from judgment.”). Because Wiest filed his Motion" }, { "docid": "11390966", "title": "", "text": "more than ten days after the entry of judgment has no effect upon appeal time, which runs from the entry of the original order denying ... an alteration or amendment of the judgment.”). Because plaintiffs’ second motion for reconsideration was served two months after entry of the judgment dismissing the complaint, it was untimely under Rule 59(e), and did not toll the appeal period for that judgment. See Jusino v. Zayas, 875 F.2d 986, 989 (1st Cir.1989). B. Postjudgment Motions for Reconsideration Where, as here, a complaint is dismissed without leave to amend, the plaintiff can appeal the judgment, or alternatively, seek leave to amend under Rule 15(a) after having the judgment reopened under either Rule 59 or 60. Unless postjudgment relief is granted, the district court lacks power to grant a motion to amend the complaint under Rule 15(a). See Public Citizen v. Liggett Group, Inc., 858 F.2d 775, 781 (1st Cir.1988), cert. denied, 488 U.S. 1030, 109 S.Ct. 838, 102 L.Ed.2d 970 (1989); see also 3 Moore supra ¶ 15.10 at 15-107 (“[A]fter a judgment of dismissal plaintiff must move under Rules 59(e) or 60(b) to reopen the judgment.”); 6 Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure § 1489 at 692-93 (1990) (“[O]nce judgment is entered the filing of an amendment cannot be allowed until the judgment is set aside or vacated under Rule 59 or Rule 60.”). On February 1, 1993, within ten days of the entry of judgment, plaintiffs served a motion for reconsideration and/or to alter or amend the judgment pursuant to Rule 59(e), together with a motion to amend the complaint accompanied by a proposed amended complaint. On February 12, plaintiffs filed a document entitled “Supplemental Arguments to our Motion for Reconsideration.” These supplemental arguments were an expansion of several arguments made by plaintiffs in the Rule 59(e) motion. On February 26, federal defendants filed a response to plaintiffs’ supplemental arguments. Finally, on March 3, the district court denied plaintiffs’ motion for reconsideration, effectively denying their motion for leave to amend the complaint. The court declined to address plaintiffs’ supplemental" }, { "docid": "15198387", "title": "", "text": "11. The court concluded that, even if the device had been defective, Ms. Deimer’s failure to attempt to use the cord wrap precluded any possible causation between the alleged defect and her injuries. After the district court’s ruling, Ms. Deimer filed a motion for reconsideration. In support of the motion, she contended, by affidavit executed after the district court’s rendition of summary judgment, that she did not search for any cord-securing device because she was aware that this particular machine had no such device. She claimed to know of this absence because she had worked with the machine on other occasions and had discussed the matter with colleagues. According to Ms. Deimer, all she meant to convey in her deposition was that she had never conducted a formal search for a cord wrap device. The district court treated this motion to reconsider as a motion to alter or amend the judgment under Federal Rule of Civil Procedure 59(e). This motion had not been filed, however, within the ten-day time limit required by that Rule. The court noted that it was without the power to extend the ten-day period for the filing of a Rule 59(e) motion. Acknowledging that, under certain circumstances, relief might still be available under Rule 60(b), the district court nevertheless declined to act favorably on her motion. It noted, among other considerations, that Ms. Deimer had been given sufficient opportunity to present her own interpretation of her deposition testimony in response to Sub-Zero’s motion for summary judgment. Before this court, Ms. Deimer contends that, because the district court had ruled in her favor in an earlier motion for .summary judgment by SubZero, the matter was foreclosed from further consideration in the subsequent motion and she was under no obligation to readdress the issue. Upon examination of the record, we cannot accept Ms. Deimer’s contention. SubZero’s second motion for summary judgment again presented the issue of whether Ms. Deimer had examined the machine for a cord wrap prior to the accident. It was therefore very clear to the parties that the district court was being invited to revisit" }, { "docid": "22557786", "title": "", "text": "and proper appeal. B. Denial of Motion for Reconsideration This case illustrates the dangers of filing a self-styled “motion for reconsideration” that is not described by any particular rule of federal civil procedure. Federal courts have construed this type of motion as arising under either Rule 59(e) (motion to alter or amend the judgment) or Rule 60(b) (relief from judgment for mistake or other reason). See Spinar v. South Dakota Bd. of Regents, 796 F.2d 1060, 1062 (8th Cir.1986). The two rules serve different purposes and produce different consequences, both substantive and procedural. See A.D. Weiss Lithograph Co. v. Illinois Adhesive Prods. Co., 705 F.2d 249, 249-50 (7th Cir.1983) (per curiam). When the moving party fails to specify the rule under which it makes a postjudgment motion, that party leaves the characterization of the motion to the court’s somewhat unenlightened guess, subject to the hazards of the unsuccessful moving party losing the opportunity to present the merits underlying the motion to an appellate court because of delay. For example, if the appellate court characterizes the motion as one under Rule 59(e) “to alter or amend the judgment,” that motion tolls the running of the thirty days to appeal the judgment, and the clock starts anew at the entry of the order disposing of the motion — requiring a notice of appeal following entry of the order. Fed.R.App.P. 4(a)(4). But if the motion is untimely made, beyond the ten-day period, the district court loses jurisdiction over that motion and any ruling upon it becomes a nullity. Spinar, 796 F.2d at 1062. Moreover, when thirty days has run from the initial judgment, the time for ap peal in the ordinary (not relating to the United States) civil action has elapsed. By contrast, when a motion for reconsideration made after ten days is deemed a motion for relief from the judgment under Rule 60(b), the ten-day rule does not govern that motion. To prevent its use as a substitute for a timely appeal on the underlying merits, a Rule 60(b) motion must be made within thirty days of the judgment if the alleged" }, { "docid": "22557776", "title": "", "text": "BRIGHT, Senior Circuit Judge. This case vividly illustrates that failure to follow federal rules of civil and appellate procedure can result in the loss of valuable rights of review. In this product liability action, Terry Wayne Sanders, plaintiff, appeals from the district court’s orders granting summary judgment for Clemco Industries (Clemco) and Ingersoll-Rand Company (Ingersoll), defendants, and denying Sanders’ motion to reconsider and set aside the summary judgment order. Sanders filed this appeal within thirty days after the district court denied his motion for reconsideration, but more than thirty days after entry of the order for summary judgment. Because Sanders made his motion for reconsideration more than ten days after the order for summary judgment, which the parties viewed as the final judgment in the case, that motion did not toll the deadline for filing a notice of appeal of the summary judgment, and his appeal of that order is untimely. Therefore, Sanders may appeal only the denial of his motion for reconsideration. As we demonstrate in our discussion below, we may construe this motion for reconsideration in either of two ways: (1) as a motion to alter or amend the judgment under Rule 59(e) of the Federal Rules of Civil Procedure; or (2) as a motion for relief from a judgment under Rule 60(b). If the motion arose under Rule 59(e), however, that motion was untimely and thus did not toll the running of the time for appeal under Rule 4(a)(4) of the Federal Rules of Appellate Procedure. Because Sanders brought this appeal more than thirty days after entry of judgment, we would dismiss such an appeal for want of jurisdiction. To preserve Sanders’ appeal, we will construe the motion as one under Rule 60(b). Because the district court did not abuse its discretion in denying the motion for reconsideration as a motion for relief under Rule 60(b), we affirm. I. BACKGROUND On September 30, 1978, Sanders sustained injury while using an air respirator manufactured by Clemco and a compressor built by Ingersoll. He filed a product liability action against the manufacturers in the circuit court in the City" }, { "docid": "401896", "title": "", "text": "have granted leave to amend as a matter of course. Sec ond, it seeks alteration or amendment of the ruling, because plaintiffs assert that the court improperly rejected unidentified precedent of the Eighth Circuit Court of Appeals in determining that the Adventure Cattle contracts are not securities within the meaning of the Securities Acts of 1933 and 1934. The court’s analysis begins with the standards applicable to, and, indeed, with the identification of the authority for, the plaintiffs’ motion to reconsider. 1. Applicable standards Plaintiffs’ motion fails to identify the authority for a motion to reconsider. The Eighth Circuit Court of Appeals commented on the “dangers of filing a self-styled ‘motion for reconsideration’ that is not described by any particular rule of federal civil procedure,” and identified the usual bases upon which such motions are construed to have been made, in Sanders v. Clemco Indus., 862 F.2d 161 (8th Cir.1988): Federal courts have construed this type of motion as arising under either Rule 59(e) (motion to alter or amend the judgment) or Rule 60(b) (relief from judgment for mistake or other reason). See Spinar v. South Dakota Bd. of Regents, 796 F.2d 1060, 1062 (8th Cir.1986). The two rules serve different purposes and produce different consequences, both substantive and procedural. See A.D. Weiss Lithograph Co. v. Illinois Adhesive Prods. Co., 705 F.2d 249, 249-50 (7th Cir.1983) (per curiam). When the moving party fails to specify the rule under which it makes a postjudgment motion, that party leaves the characterization of the motion to the court’s somewhat unenlightened guess, subject to the hazards of the unsuccessful moving party losing the opportunity to present the merits underlying the motion to an appellate court because of delay. Sanders, 862 F.2d at 168 (footnotes omitted). Plaintiffs’ failure to identify the authority for their motion to reconsider has left them with precisely the dangers identified by the court in Sanders. The court’s “somewhat unenlightened guess” here is that the motion, filed within ten days after the judgment, was intended to be made pursuant to FedR.Civ.P. 59(e); Sanders, 862 F.2d at 168-69 (distinguishing between of a" }, { "docid": "22246426", "title": "", "text": "and legal holidays excluded. If a party has timely filed a motion for alteration or amendment of the judgment under Rule 59(e), or for relief under certain other Civil Rules, “the time to file an appeal runs ... from the entry of the order disposing of the last such remaining motion.” Fed. R.App. P. 4(a)(4)(A). Civil Rule 60(b) provides that the district court may relieve a party from a final judgment for any of a number of enumerated reasons such as misrepresentation, mistake, excusable neglect, or newly discovered evidence, or for “any other reason justifying relief from the operation of the judgment,” Fed.R.Civ.P. 60(b)(6). That Rule, unlike Rule 59(e), does not impose a 10-day deadline, but rather provides, inter alia, that such a “motion shall be made within a reasonable time.” Fed.R.Civ.P. 60(b). Rule 60(b) also states that “[a] motion under this subdivision (b) does not affect the finality of a judgment or suspend its operation.” Id. Rule 60, however, has not been substantially revised in more than a half-century, and as to certain Rule 60(b) motions filed within 10 days of the entry of judgment, the last quoted statement is no longer accurate. Regardless of the label the movant places on her postjudgment motion, we have found it appropriate to examine the timing and substance of the motion in order to determine whether it should be deemed to extend the time for appeal. We have long held that a postjudgment motion made within 10 days after entry of judgment, if it involves reconsideration of matters properly encompassed in a decision on the merits, is to be deemed a motion to alter or amend the judgment pursuant to Rule 59(e), thereby extending the time of the parties to appeal. See, e.g., McCowan v. Sears, Roebuck & Co., 908 F.2d 1099, 1103-04 (2d Cir.), cert. denied, 498 U.S. 897, 111 S.Ct. 250, 112 L.Ed.2d 209 (1990); Lyell Theatre Corp. v. Loews Corp., 682 F.2d 37, 40-41 (2d Cir.1982). We have so held even if the motion “cited no particular procedural rule,” Northwestern National Insurance Co. v. Alberts, 937 F.2d 77, 81" }, { "docid": "12086981", "title": "", "text": "finds that the Defendants are entitled under 28 U.S.C. § 1961 to an award of such interest at the rate of 5.57% per annum until paid in full. Having lost again, Kosnoski again appeals. II. Federal Rule of Civil Procedure 59(e) provides that “[a] motion to alter or amend the judgment shall be served not later than 10 days after entry of the judgment.” Federal Rule of Civil Procedure 60(a) provides in part: Clerical mistakes in judgments, orders or other parts of the record and errors therein arising from oversight or omission may be corrected by the court at any time of its own initiative or on the motion of any party and after such notice, if any, as the court orders. (Emphasis supplied.) Kosnoski bases his appeal on the argument that Howley’s motion to fix interest, which in effect was a motion for a more definite statement as to the amount of judgment, should be considered a motion to alter or amend the judgment, rather than a motion relating to errors arising from oversight or omission. The question of whether various sorts of postjudgment motions fall within Rule 59(e) has been well explored in a series of Supreme Court cases. In White v. New Hampshire Dep’t of Employment Sec., 455 U.S. 445, 102 S.Ct. 1162, 71 L.Ed.2d 325 (1982), the Court ruled that a postjudgment motion for attorneys’ fees under 42 U.S.C. § 1988 was not a Rule 59(e) motion. The Court stated that a postjudgment motion will be considered a Rule 59(e) motion where it involves “reconsideration of matters properly encompassed in a decision on the merits.” Id. at 451, 102 S.Ct. at 1166. Because a § 1988 attorneys’ fees motion did not fit that description and raised legal issues “collateral to the main cause of action,” id., and the award of attorneys’ fees was separate from the underlying award of damages, it was not governed by Rule 59(e). In Buchanan v. Stanships, Inc., 485 U.S. 265, 108 S.Ct. 1130, 99 L.Ed.2d 289 (1988), the Court, applying the reasoning laid out in White, held that a motion for" }, { "docid": "22246427", "title": "", "text": "60(b) motions filed within 10 days of the entry of judgment, the last quoted statement is no longer accurate. Regardless of the label the movant places on her postjudgment motion, we have found it appropriate to examine the timing and substance of the motion in order to determine whether it should be deemed to extend the time for appeal. We have long held that a postjudgment motion made within 10 days after entry of judgment, if it involves reconsideration of matters properly encompassed in a decision on the merits, is to be deemed a motion to alter or amend the judgment pursuant to Rule 59(e), thereby extending the time of the parties to appeal. See, e.g., McCowan v. Sears, Roebuck & Co., 908 F.2d 1099, 1103-04 (2d Cir.), cert. denied, 498 U.S. 897, 111 S.Ct. 250, 112 L.Ed.2d 209 (1990); Lyell Theatre Corp. v. Loews Corp., 682 F.2d 37, 40-41 (2d Cir.1982). We have so held even if the motion “cited no particular procedural rule,” Northwestern National Insurance Co. v. Alberts, 937 F.2d 77, 81 (2d Cir.1991), or cited only Rule 60(b), see Rados v. Celotex Corp., 809 F.2d 170, 171 (2d Cir.1986), or was uniformly treated in the district court as a Rule 60(b) motion, see Lyell Theatre Corp. v. Loews Corp., 682 F.2d at 40 (“plaintiffs did not refer to Rule 59 in their papers; appellees treated the application as a Rule 60(b) motion in their opposition papers without comment from plaintiffs; plaintiffs argued excusable neglect, a Rule 60 basis; and [the district judge] referred to Rule 60(b) in his denial of reconsideration”). Consistent with this treatment, FRAP Rule 4(a)(4) was amended in 1993 to add some Civil Rule 60(b) motions to the category of motions that automatically extend the time for appeal. As currently worded, FRAP Rule 4(a)(4) includes in that category a motion “for relief under Rule 60 if the motion is filed no later than 10 days (computed using Federal Rule of Civil Procedure 6(a)) after the judgment is entered,” Fed. R.App. P. 4(a)(4)(A)(vi). The Advisory Committee comment on the 1993 amendment states that [t]his" }, { "docid": "7320838", "title": "", "text": "court lacked jurisdiction over DHS, we hold that they are not a “prevailing party” and therefore should not receive attorneys’ fees based on the DHS appeal. II. Application of Federal and Local Time Bars Plaintiffs argue alternatively that the district court’s attorneys’ fee reduction based upon a motion for reconsideration is barred because the motion was untimely under Federal Rule of Civil Procedure 59(e) and Local Rule of the District of Connecticut 9(e). These rules provide that a judgment cannot be altered, amended, or reconsidered after ten days following the entry of judgment. Since DMR’s Motion for Reconsideration was filed on August 19, 1994, more than ten days after the July 22, 1994 decision to award attorneys’ fees to plaintiffs, ARCC argues that the court was prevented from reconsidering the award. We disagree. A. Federal Rules of Civil Procedure We address the proper application of each rule separately. First we note that the motion for reconsideration did not refer to a specific Federal Rule of Civil Procedure. Nothing in the lower court’s opinion indicates that it viewed the motion as arising under Rule 59(e). Where there is no indication which Federal Rule of Civil Procedure applies, “the courts have considered [a] motion [for modification of judgment to be] either a Rule 59(e) motion to alter or amend a judgment, or a Rule 60(b) motion for relief from a judgment or order.” In re Burnley, 988 F.2d 1, 2 (4th Cir.1992). While Rule 59(e) covers a broad range of motions, including motions for reconsideration, 11 Charles A. Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure § 2810.1, at 122-23 (2d ed. 1995), we construe the motion before us as within the purview of Rule 60(b) for two reasons. First, Rule 60(b)(5) addresses exactly the circumstances before us: it allows for relief from “a final judgment, order, or proceeding” on the basis that “a prior judgment upon which it is based has been reversed or otherwise vacated.” Therefore, the motion would have been correctly granted under Rule 60(b)(5). Moreover, because the motion would have been untimely under Rule" }, { "docid": "16496869", "title": "", "text": "Paso, Texas, and in Kansas City, Missouri.” On December 8, 1988, the district court granted Saudi’s motion and entered a final judgment dismissing Forsythe’s case. The court found that Saudi was a “foreign state” and that none of the exceptions to immunity enumerated in the FSIA applied. Alternatively, the court concluded that forum non conveniens required that the suit be prosecuted in Saudi Arabia. Forsythe promptly filed a “Motion for New Trial,” which the district court denied. He now appeals the order denying his motion for new trial. Our first task is to identify the character of Forsythe’s postjudgment motion. This determination will then define our role in reviewing the district court’s denial of the motion. Forsythe styled his postjudgment motion a “Motion for New Trial,” without designating one of the Federal Rules of Civil Procedure. Both Fed.R.Civ.P. 59(e) and Fed.R.Civ.P. 60(b) may offer a party the relief that Forsythe sought: a change in the court’s judgment. The rules differ in two important respects, however. First, a Rule 59(e) motion must be served no later than ten days after entry of the judgment. Rule 60(b) motions may be filed during a much longer period of time — up to one year after judgment for certain stated grounds, and “within a reasonable time” for all remaining grounds. Second, a Rule 59(e) motion to alter or amend a judgment tolls the time period for filing a notice of appeal from the judgment; a Rule 60(b) motion does not. Fed.R.App.P. 4(a)(4). Our en banc decision in Harcon Barge Co. v. D & G Boat Rentals, Inc. established a bright-line test for characterizing a motion that questions the substantive correctness of a judgment. A motion served within ten days after judgment, which in effect requests the district court to alter or amend the judgment, will be treated as a Rule 59(e) motion. Harcon Barge, 784 F.2d 665, 667-69 (5th Cir.), cert. denied, 479 U.S. 930, 107 S.Ct. 398, 93 L.Ed.2d 351 (1986). The district court entered its order and final judgment on December 8, 1988. Forsythe served his motion within the ten-day time limit" }, { "docid": "22246424", "title": "", "text": "suspend its operation,’ ” and because “Rule 4(a)(4) [of the Federal Rules of Appellate Procedure] also expressly excludes motions for attorneys’ fees under FRCP 54, which is what plaintiffs motion really was in significant part, from the class of motions that toll the filing time unless the District Court enters an order under FRCP 58 extending the time for appeal.” (UNUM brief on appeal at 12-13.) These contentions lack merit in light of this Court’s precedents requiring treatment of parts of Jones’s postjudgment motion, despite its label, as requests pursuant to Fed.R.Civ.P. 59(e), and in light of the current version of the Federal Rules of Appellate Procedure (“FRAP” Rules). Ordinarily, in a private civil ease, an aggrieved party is given 30 days from the date of entry of the final judgment in which to file her appeal. See 28 U.S.C. § 1291 (1994); Fed. R.App. P. 4(a)(1). However, the Federal Rules of Civil Procedure (“Civil” Rules) allow a party to move “to alter or amend a judgment,” Fed.R.Civ.P. 59(e); and, as we have recently discussed, if a party makes a timely Rule 59(e) motion, the judgment loses its finality, and the appeal deadline is extended: The timely filing of a postjudgment motion pursuant to Fed. R. Civ. P .... 59 automatically “affect[s] the finality of the judgment,” Fed.R.CivP. 59 Advisory Committee Notes (1995), because such a motion seeks to alter the judgment or reverse decisions embodied in it. See, e.g., Browder v. Director, Department of Corrections, 434 U.S. 257, 267, 98 S.Ct. 556, 54 L.Ed.2d 521' (1978) (“A timely petition for rehearing tolls the running of the [appeal] period because it operates to suspend the finality of the ... court’s judgment, pending the court’s further determination whether the judgment should be modified so as to alter its adjudication of the rights of the parties.” (internal quotation marks omitted)) .... Weyant v. Okst, 198 F.3d 311, 314-315 (2d Cir.1999) (emphasis in Browder). To be timely under Rule 59(e), a motion must be filed within 10 days after entry of judgment, computed, in accordance with Fed. R.Civ.P. 6(a), with intermediate Saturdays, Sundays," } ]

[ { "docid": "16133032", "title": "", "text": "Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). “A claim has facial plausibility when the [pleaded] factual content [] allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, — U.S. —, 129 S.Ct. 1937, 1940, 173 L.Ed.2d 868 (2009); see also Gee v. Pacheco, 627 F.3d 1178, 1182-83 (10th Cir.2010). As applied here, to state a claim for the deprivation of property without due process, Jordan-Arapahoe must allege facts plausibly suggesting (1) Arapahoe County deprived it of a protected property interest, and (2) such deprivation was arbitrary. Hyde Park Co. v. Santa Fe City Council, 226 F.3d 1207, 1210 (10th Cir.2000). Property rights are protected by the due process clause of the Fourteenth Amendment, which provides, “[N]or shall any State deprive any person of life, liberty, or property, without due process of law.” U.S. Const. amend. XIV, § 1. Property rights we recognize under the Fourteenth Amendment “are created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law — rules or understandings that secure certain benefits and that support claims of entitlement to those benefits.” Bd. of Regents v. Roth, 408 U.S. 564, 577, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972); see also Federal Lands Legal Consortium ex rel. Robart Estate v. United States, 195 F.3d 1190, 1196 (10th Cir.1999). And, the “identification of those benefits and the ‘legitimate claim of entitlement’ to them is determined not by the Constitution, but largely by state law.” Eason v. Bd. of Cnty. Comm’rs, 70 P.3d 600, 604-05 (Colo.App.2003) (citing Hillside Cmty. Church v. Olson, 58 P.3d 1021, 1025 (Colo.2002)). We thus must turn to state law in understanding the scope of property rights in land ownership. This is not always a simple task. The modern understanding of the bundle of sticks of land ownership is overlain with myriad competing land use, zoning, and environmental regulations. A landowner faces numerous restrictions on the full use and alienability of land depending on the interplay of local, state, and" } ]

[ { "docid": "15292730", "title": "", "text": "overtime compensation pursuant to the FLSA, which defendants argue does not meet this element. Mr. Hinsdale responds that FLSA actions are equivalent to Title VII actions, because “both arise from remedial federal legislation designed to protect employees.” On the facts of this case, we are unwilling to expand the coverage of “litigation vindicating civil rights” to include Grace Hinsdale’s FLSA lawsuit. We therefore affirm, on a different ground, the district court’s decision to grant summary judgment for defendants on Mr. Hinsdale’s freedom of association claim. 2. Procedural Due Process Mr. Hinsdale appeals the district court’s grant of summary judgment to defendants on his Fourteenth Amendment procedural due process claim regarding the manner in which he was terminated. “The Four teenth Amendment’s procedural protection of property is a safeguard of the security of interests that a person has already acquired in specific benefits.” Board of Regents of State Colls. v. Roth, 408 U.S. 564, 576, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972). “In determining whether an individual has been deprived of his [Fourteenth Amendment] right to procedural due process, courts must engage in a two-step inquiry: (1) did the individual possess a protected interest such that the due process protections were applicable; and if so, then (2) was the individual afforded an appropriate level of process.” Farthing v. City of Shauwnee, 39 F.3d 1131, 1135 (10th Cir.1994). The district court assumed Mr. Hinsdale had a protected property interest in continued employment, and held Mr. Hinsdale was “afforded adequate federal procedural due process.” Mr. Hinsdale argues he had a protected property interest in continued employment, and the district court erred in holding he received adequate due process when he was terminated. We conclude Mr. Hinsdale did not have a constitutionally protected property interest in continued employment as Court Administrator, and, on this basis, affirm. See Sandoval, 29 F.3d at 542 n. 6. “Property interests, of course, are not created by the Constitution. Rather they are created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law-rules or understandings that secure certain benefits" }, { "docid": "5885971", "title": "", "text": "same procedure also denies them their Fourth Amendment right to be free from unreasonable searches and seizures (Count Four). a. Facial Challenge The Due Process clause of the Fourteenth Amendment protects against governmental deprivations of “life, liberty, or property” without due process of law. U.S. Const. amend. XIV; see Baker v. McCollan, 443 U.S. 137, 145, 99 S.Ct. 2689, 61 L.Ed.2d 433 (1979). In determining whether an individual has been deprived of his right to procedural due process, courts must engage in a two-step inquiry: (1) did the individual possess a protected liberty or property interest such that the due process protections were applicable; and if so, then (2) was the individual afforded an appropriate level of process. Farthing v. City of Shawnee, Kan., 39 F.3d 1131, 1135 (10th Cir.1994) (citing Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 541, 105 S.Ct. 1487, 84 L.Ed.2d 494 (1985)). The threshold issue is whether plaintiffs have asserted a protected property or liberty interest. See Graham v. City of Okla. City, 859 F.2d 142, 144 (10th Cir.1988) (per curiam). The Constitution does not create or define the contours of “liberty” or “property,” the “broad and majestic terms” enshrined in the Fourteenth Amendment. Bd. of Regents of State Colleges v. Roth, 408 U.S. 564, 571, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972). Rather, these interests “are created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law.” Id. at 577, 92 S.Ct. 2701; see Paul v. Davis, 424 U.S. 693, 710, 96 S.Ct. 1155, 47 L.Ed.2d 405 (1976) (liberty and property interests attain constitutional status if initially recognized and protected by state law); Stidham v. Peace Officer Standards & Training, 265 F.3d 1144, 1149 (10th Cir.2001). The City argues that the landlord plaintiffs have not alleged a deprivation of property interests. It does not argue that landlord plaintiffs have failed to allege the denial of a protected liberty interest, and indeed, the landlord plaintiffs allege that they have a liberty interest in protection from confiscation of property through excessive fines. The landlord plaintiffs" }, { "docid": "2232161", "title": "", "text": "Const, amend. XIV, § 1. [Procedural due process ensures that a state will not deprive a person of life, liberty or property unless fair procedures are used in making that decision; substantive due process, on the other hand, guarantees that the state will not deprive a person of those rights for an arbitrary reason regardless of how fair the procedures are that are used in making the decision. Archuleta v. Colorado Dep’t of Insts., Div. of Youth Servs., 936 F.2d 483, 490 (10th Cir.1991). To determine whether a plaintiff was denied procedural due process, we engage in a two-step inquiry: (1) Did the individual possess a protected interest to which due process protection was applicable? (2) Was the individual afforded an appropriate level of process? See Watson v. University of Utah Med. Ctr., 75 F.3d 569, 577 (10th Cir.1996). To properly allege a violation of his procedural due process rights, Plaintiff must first demonstrate that he had a protected property or liberty interest in his status as a lieutenant. The standard for the existence of a property right in employment is whether the plaintiff has a legitimate expectation of continued employment. See Board of Regents v. Roth, 408 U.S. 564, 577, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972); Carnes v. Parker, 922 F.2d 1506, 1512 n. 2 (10th Cir.1991). “The existence of a property interest is defined by existing rules or understandings that stem from an independent source such as state law—rules or understandings that secure certain benefits and [] support claims of entitlement to those benefits.” Driggins v. City of Oklahoma City, 954 F.2d 1511, 1513 (10th Cir.) (internal quotations omitted), cert. denied, 506 U.S. 843, 113 S.Ct. 129, 121 L.Ed.2d 84 (1992); see Bishop v. Wood, 426 U.S. 341, 344, 96 S.Ct. 2074, 48 L.Ed.2d 684 (1976) (holding that the existence of a legitimate property right in employment is determined by reference to state law). This court has held that if state statutes or regulations place substantive restrictions on a government actor’s ability to make personnel decisions, then the employee has a protected property interest. See Campbell v." }, { "docid": "20907912", "title": "", "text": "requires a state to employ fair procedures when depriving a person of a protected interest; and (ii) substantive due process, which guarantees that a state cannot deprive a person of a protected interest for certain reasons. See Reid v. Pautler, 36 F.Supp.3d 1067, 1136, 2014 WL 3845042, at *50 (D.N.M.2014) (Browning, J.)(citing Cnty. of Sacramento v. Lewis, 523 U.S. 833, 845-46, 118 S.Ct. 1708, 140 L.Ed.2d 1043 (1998)). “Under either form of protection, however, a person must have a protected interest in either life, liberty, or property.” Chavez-Rodriguez v. City of Santa Fe, No. CIV 07-0633, 2008 WL 5992271, at *6 (D.N.M. Oct. 9, 2008) (Browning, J.). The Tenth Circuit prescribes a two-step inquiry in determining whether an individual’s procedural due-process rights were violated: (i) “Did the individual possess a protected property interest to which due process protection was applicable?”; and (ii) “Was the individual afforded an appropriate level of process?” Camuglia v. City of Albuquerque, 448 F.3d 1214, 1219 (10th Cir.2006) (quoting Clark v. City of Draper, 168 F.3d 1185, 1189 (10th Cir.1999) (internal quotation marks omitted)). “The Constitution does not create or define the contours of ‘liberty’ or ‘property,’ the ‘broad and majestic terms’ enshrined in the Fourteenth Amendment.” Farthing v. City of Shawnee, Kan., 39 F.3d 1131, 1135 (10th Cir.1994) (quoting Bd. of Regents of State Colls. v. Roth, 408 U.S. 564, 571, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972)). “To have a property interest in a benefit, a person clearly must have more than an abstract need or desire for it. He must have more than a unilateral expectation of it. He must, instead, have a legitimate claim of entitlement to it.” Bd. of Regents of State Colls. v. Roth, 408 U.S. at 577, 92 S.Ct. 2701. “Such an interest arises not from the Due Process Clause of the Constitution itself, but is created by independent sources such as a state or federal statute, a municipal charter or ordinance, or an implied or express contract.” Teigen v. Renfrow, 511 F.3d 1072, 1079 (10th Cir.2007). See Paul v. Davis, 424 U.S. 693, 710, 96 S.Ct. 1155, 47" }, { "docid": "10929752", "title": "", "text": "from depriving a person of a property interest without due process of law. All procedural due process claims submit to a two-part inquiry: “(1) did the individual possess a protected interest such that the due process protections were applicable; and if so, then (2) was the individual afforded an appropriate level of process.” Farthing v. City of Shawnee, Kan., 39 F.3d 1131, 1135 (10th Cir.1994). Property interests “are created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law.” Board of Regents of State Colleges v. Roth, 408 U.S. 564, 577, 33 L.Ed.2d 548, 92 S.Ct. 2701 [2709] (1972). In a public employment setting, “the touchstone is whether, under state law, the employee has ‘a legitimate claim of entitlement’ in continued employment, as opposed to a ‘unilateral expecta tion’ or ‘an abstract need or desire’ for it.” Farthing, 39 F.3d at 1135 (quoting Roth, 408 U.S. at 577 [92 S.Ct. at 2709]). The defendants contend that the facts and circumstances here show that plaintiff did not have a contract of employment, either express or implied, with the Hospital. Plaintiff contends that he did have an implied contract based upon representations contained in the Hospital’s Guide to Employment and oral assurances made to him by various supervisors that his employment was secure as long as he observed the policies and procedures of the Hospital. In his response to the motion for summary judgment, plaintiff adds several other factors to support his contention that an implied contract existed. He points to his length of employment, his excellent employment record, and the prior history of the defendants in giving terminated employees due process hearings. In reply, the defendants argue that these matters cannot be considered because they were not included in the pretrial order. The pretrial order supersedes the pleadings and controls the subsequent course of litigation. Fed.R.Civ.P. 16(e); Hullman v. Board of Trustees of Pratt Community College, 950 F.2d 665, 667 (10th Cir.1991). The court has discretion to exclude evidence on issues not raised in the pretrial order. Id. After a careful" }, { "docid": "19270941", "title": "", "text": "a State seeks to terminate a protected interest, it must afford notice and opportunity for hearing appropriate to the nature of the case before the termination becomes effective. Bd. of Regents of State Colls. v. Roth, 408 U.S. 564, 570 n. 7, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972) (citations, quotations, alterations omitted). “The formality and procedural requisites for the hearing can vary, depending upon the importance of the interests involved and the nature of the subsequent .proceedings.” Id. at 570 n. 8, 92 S.Ct. 2701 (quotation omitted). A. Whether the individual Defendants are entitled to qualified immunity on Kirkland’s claim that Defendants deprived him of a property interest without due process when the District failed to abide by the November resignation agreement. On November 13, 2002, Superintendent Randy Zila and Assistant Superintendent Tom Garcia met with Kirkland, informed him that the Board had lost confidence in Kirkland’s ability to provide the Board with accurate budget information, and requested Kirkland’s resignation. Kirkland agreed to resign in exchange for the District’s continuing to pay him his salary and benefits through the duration of his one-year employment contract, which ended June 30, 2003. The Board, however, rejected Kirkland’s resignation and the resignation agreement. Kirkland alleges that by rejecting this resignation' agreement, the individual Defendants deprived him of a property interest in that agreement without due process. We conclude that Kirkland did not have a protected property interest in the resignation agreement. “Property interests are not created by the Constitution, but rather by independent sources such as state law.” Brown, 399 F.3d at 1254 (citing Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 538, 105 S.Ct. 1487, 84 L.Ed.2d 494 (1985)); see also Roth, 408 U.S. at 577, 92 S.Ct. 2701. “Thus, constitutionally protected property interests are created and defined by statute, ordinance, contract, implied contract and rules and understandings developed .by state officials.” Hulen v. Yates, 322 F.3d 1229, 1240 (10th Cir.2003) (per curiam) (citing, e.g., Roth and Loudermill). Kirkland asserts he had a property interest in the resignation agreement because it was an enforceable contract under Colorado law. But pursuant" }, { "docid": "10861631", "title": "", "text": "See Fittshur v. Village of Menomonee Falls, 31 F.3d 1401, 1405 (7th Cir.1994). Regarding the first step, St. John bears the burden of establishing that he has a protected property interest in his continued employment. See Larsen v. City of Beloit, No. 97-1831, 1997 WL 754606, *4 (7th Cir. Dec. 5, 1997). Whether St. John possessed a substantive property interest in his job is a question of state law. See Moulton v. Vigo County, 150 F.3d 801, 804 (7th Cir.1998). Such property interests “are not created by the Constitution,” but rather “are created and their dimensions ... defined by existing rules or understandings that stem from an independent source such as state law.” Board of Regents of State Colleges v. Roth, 408 U.S. 564, 577, 92 S.Ct. 2701, 2709, 33 L.Ed.2d 548 (1972). A protected property interest in employment can arise from such sources as a state statute, municipal ordinance, an express or implied contract, legally binding rules or regulations, or the “unwritten common law” of employment— those “rules or understandings that secure certain benefits and that support claims of entitlement to those benefits.” Moulton, 150 F.3d at 804 (quoting Lawshe v. Simpson, 16 F.3d 1475, 1480 (7th Cir.1994)); Roth, 408 U.S. at 577, 92 S.Ct. 2701. 1. The Employee Manual as a Contract Creating a Property Right St. John claims that the employee manual, which the Town adopted by ordinance, created an employment contract with the Town that it breached by firing him without providing him due process. He contends that he possessed a right to and expectation of continued employment. Therefore, on our way to resolving the procedural due process claim, we must determine if the employment manual did indeed create such a right. See Shannon v. Bepko, 684 F.Supp. 1465, 1478-79 (S.D.Ind.1988) (finding that either express or implied contracts may create a protected property interest). Historically, Indiana has recognized two basic forms of employment: (1) employment for a definite or ascertainable term, and (2) employment at-will. See Orr v. Westminster Village N., Inc., 689 N.E.2d 712, 717 (Ind.1997). An employee with an employment contract with a definite" }, { "docid": "10861630", "title": "", "text": "Chicago, 870 F.2d 400, 404 (7th Cir.1989). B. Procedural Due Process Claim and State Law Breach of Contract Claim St. John asserts that the defendants deprived him of his Fourteenth Amendment procedural due process rights, in violation of 42 U.S.C. § 1983, when they eliminated his position as operator of the Ellettsville sewer plant. He claims that the Town’s personnel policy created a property interest in his continued employment such that the Town could not eliminate it without providing him due process of law. It is well-settled that a court confronting a federal procedural due process question must make two separate inquiries. See Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 541, 105 S.Ct. 1487, 1492-93, 84 L.Ed.2d 494 (1985). Initially, we must determine if St. John established that he had a property interest in his job of the sort that the Constitution protects. See Border v. City of Crystal Lake, 75 F.3d 270, 273 (7th Cir.1996). If so, the question becomes what process is due before he can be deprived of that interest. See Fittshur v. Village of Menomonee Falls, 31 F.3d 1401, 1405 (7th Cir.1994). Regarding the first step, St. John bears the burden of establishing that he has a protected property interest in his continued employment. See Larsen v. City of Beloit, No. 97-1831, 1997 WL 754606, *4 (7th Cir. Dec. 5, 1997). Whether St. John possessed a substantive property interest in his job is a question of state law. See Moulton v. Vigo County, 150 F.3d 801, 804 (7th Cir.1998). Such property interests “are not created by the Constitution,” but rather “are created and their dimensions ... defined by existing rules or understandings that stem from an independent source such as state law.” Board of Regents of State Colleges v. Roth, 408 U.S. 564, 577, 92 S.Ct. 2701, 2709, 33 L.Ed.2d 548 (1972). A protected property interest in employment can arise from such sources as a state statute, municipal ordinance, an express or implied contract, legally binding rules or regulations, or the “unwritten common law” of employment— those “rules or understandings that secure certain benefits" }, { "docid": "15895708", "title": "", "text": "an involuntary transfer for protected speech is prohibited. Rutan v. Republican Party of Ill., 497 U.S. 62, 75, 110 S.Ct. 2729, 111 L.Ed.2d 52 (1990) (“We therefore determine that promotions, transfers, and recalls after layoffs based on political affiliation or support are an impermissible infringement on the First Amendment rights of public employees.”); Schuler v. City of Boulder, 189 F.3d 1304, 1310 (10th Cir.1999) (involuntary transfer even with same title and responsibilities was actionable); Dill, 155 F.3d at 1204-05 (transfer from detective position to patrol officer); Morfin v. Albuquerque Pub. Schs., 906 F.2d 1434, 1437 (10th Cir.1990) (transfer to another school). Finally, we do not resolve Defendants’ claims that Dr. Hulen cannot show any personal participation by these Defendants in the alleged retaliatory transfer because of his motivation. This is an issue of evidentiary sufficiency, over which we lack jurisdiction in a qualified immunity interlocutory appeal. Aplt. Br. tab A, at 23-24, 28 (discussing evidence of personal participation requiring a trial); Johnson, 515 U.S. at 317, 115 S.Ct. 2151. 2. Fourteenth Amendment Claim Turning to Dr. Hulen’s Fourteenth Amendment claim, Dr. Hulen alleges that he was deprived of a recognized property interest (an appointment in the Accounting Department) without due process. Property interests “are created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law.” Bd. of Regents of State Colleges v. Roth, 408 U.S. 564, 577, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972). Thus, constitutionally protected property interests are created and defined by statute, ordinance, contract, implied contract and rules and understandings developed by state officials. See Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 538, 105 S.Ct. 1487, 84 L.Ed.2d 494 (1985); Perry v. Sindermann, 408 U.S. 593, 601-03, 92 S.Ct. 2694, 33 L.Ed.2d 570 (1972); Roth, 408 U.S. at 577-78, 92 S.Ct. 2701; Anglemyer v. Hamilton County Hosp., 58 F.3d 533, 536 (10th Cir.1995). The general rule is that “no protected property interest is implicated when an employer reassigns or transfers an employee absent a specific statutory provision or contract term to the contrary.” Anglemeyer, 58" }, { "docid": "10929751", "title": "", "text": "Board about his termination. George asked Joy at that time if the Hospital was required to provide plaintiff with a hearing. Joy told George that a post-termination hearing before the Hospital Board was not required. On January 22, 1992, the Board of Trustees was advised that plaintiff had requested a hearing to contest or discuss his termination. After consulting with George, the Board of Trustees voted to deny plaintiffs hearing request. At the time the Board voted to deny plaintiff a hearing, they had no knowledge that plaintiff had made reports or inquiries to the State Fire Marshal. DUE PROCESS CLAIM Plaintiff claims that he had a property interest in his position as maintenance supervisor and was denied due process when his employment was terminated. Plaintiff argues that his property interest arose from his implied contract of employment with the Hospital. Recently, in Snyder v. City of Topeka, 884 F.Supp. 1504, 1512 (D.Kan.1995), Judge Crow summarized the law on procedural due process in the public employment arena as follows: The Fourteenth Amendment prohibits a state from depriving a person of a property interest without due process of law. All procedural due process claims submit to a two-part inquiry: “(1) did the individual possess a protected interest such that the due process protections were applicable; and if so, then (2) was the individual afforded an appropriate level of process.” Farthing v. City of Shawnee, Kan., 39 F.3d 1131, 1135 (10th Cir.1994). Property interests “are created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law.” Board of Regents of State Colleges v. Roth, 408 U.S. 564, 577, 33 L.Ed.2d 548, 92 S.Ct. 2701 [2709] (1972). In a public employment setting, “the touchstone is whether, under state law, the employee has ‘a legitimate claim of entitlement’ in continued employment, as opposed to a ‘unilateral expecta tion’ or ‘an abstract need or desire’ for it.” Farthing, 39 F.3d at 1135 (quoting Roth, 408 U.S. at 577 [92 S.Ct. at 2709]). The defendants contend that the facts and circumstances here show that plaintiff did" }, { "docid": "15292732", "title": "", "text": "and that support claims of entitlement to those benefits.” Roth, 408 U.S. at 577. In other words, “[property] interests attain ... constitutional status by virtue of the fact that they have been initially recognized and protected by state law.” Paul v. Davis, 424 U.S. 693, 710, 96 S.Ct. 1155, 47 L.Ed.2d 405 (1976). “In the context of a public employee ... the touchstone is whether, under state law, the employee has ‘a legitimate claim of entitlement’ in continued employment, as opposed to a ‘unilateral expectation’ or ‘an abstract need or desire’ for it.” Farthing, 39 F.3d at 1135 (quoting Roth, 408 U.S. at 577). “Protected property interests arise ... from state statutes, regulations, city ordinances, and express or implied contracts. Such interests may be created by rules or mutually explicit understandings that support Plaintiffs claim of entitlement to the benefit.” Dill v. City of Edmond, 155 F.3d 1193, 1206 (10th Cir .1998) (quotation marks, citations, and alteration omitted). In Farthing, we extensively reviewed Kansas law regarding public employment in the context of a procedural due process analysis: [U]nder Kansas law, public employment is presumptively at-will---- In those situations, however, where state law restricts a government employer’s removal power by requiring some type of “cause” or “fault” before taking any adverse action against the employee, then the Kansas Supreme Court has declared the employee does possess a protected property interest— In sum, then, the Kansas Supreme Court has clearly held an at-will employee does not possess a legitimate claim of entitlement in continued employment. The absence of a protected property interest compels the conclusion that the procedural due process safeguards are inapplicable. In contrast, where the employee is terminable only for cause, the Kansas Supreme Court recognizes the employee has a property interest in continued employment under state law. Under those circumstances, the Constitution requires that some level of due process be afforded in order to effectuate a deprivation of this interest. 39 F.3d at 1136. Thus, the issue on appeal is whether Mr. Hinsdale was terminable only for cause. See id. Mr. Hinsdale argues Liberal City Code § 1-M06 restricts" }, { "docid": "23675312", "title": "", "text": "court’s application and interpretation of state law de novo. See Quinlan v. Koch Oil Co., 25 F.3d 936, 939 (10th Cir.1994) (citing Salve Regina College v. Russell, 499 U.S. 225, 231, 111 S.Ct. 1217, 1221, 113 L.Ed.2d 190 (1991)). With these principles in mind, we now turn to the merits of Mr. Farthing’s appeal. I. The Due Process clause of the Fourteenth Amendment does not prohibit the government from depriving an individual of “life, liberty, or property”; it protects against governmental deprivations of life, liberty, or property “without due process of law.” U.S. Const, amend. XIV; see Baker v. McCollan, 443 U.S. 137, 145, 99 S.Ct. 2689, 2695, 61 L.Ed.2d 433 (1979). In determining whether an individual has been deprived of his right to procedural due process, courts must engage in a two-step inquiry: (1) did the individual possess a protected interest such that the due process protections were applicable; and if so, then (2) was the individual afforded an appropriate level of process. See, e.g., Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 541, 105 S.Ct. 1487, 1493, 84 L.Ed.2d 494 (1985) (“[0]nee it is determined that the due process Clause applies, ‘the question remains what process is due.’”) (quoting Morrissey v. Brewer, 408 U.S. 471, 481, 92 S.Ct. 2593, 2600, 33 L.Ed.2d 484 (1972)). In light of this framework, we turn to the threshold issue of whether Mr. Farthing possessed a protected property interest. See Graham v. City of Oklahoma City, 859 F.2d 142, 144 (10th Cir.1988) (per curiam); accord Conaway v. Smith, 853 F.2d 789, 793 (10th Cir.1988) (per curiam). The district court concluded Mr. Farthing did not possess a property interest in continued employment with the City. We agree. The Constitution does not create or define the contours of “liberty” or “property,” the “broad and majestic terms” enshrined in the Fourteenth Amendment. Board of Regents of State Colleges v. Roth, 408 U.S. 564, 571, 92 S.Ct. 2701, 2706, 33 L.Ed.2d 548 (1972). Rather, property interests, which are the subject of the present litigation, “are created and their dimensions are defined by existing rules or understandings" }, { "docid": "392845", "title": "", "text": "is no genuine issue of material fact in dispute, we determine whether the district court correctly applied the substantive law. See Kaul v. Stephan, 83 F.3d 1208, 1212 (10th Cir.1996). I. The Fourteenth Amendment protects individuals from deprivations of “life, liberty, or property, without due process of law.” U.S. Const. amend. XIV. Mr. Greene contends that defendant deprived him of a property interest without sufficient process. This court engages in a two-step inquiry to determine if a plaintiff has been denied procedural due process. First, we determine whether the individual had a protected interest under the Due Process Clause. See, e.g., Watson v. University of Utah Med. Ctr., 75 F.3d 569, 577 (10th Cir.1996). If so, we examine whether he or she received an appropriate level of process. See id. Plaintiff argues that under Wyo. Stat. Ann. § 18-3-611, he had a protected property interest in continued employment at his rank of lieutenant. We agree. “Property interests ... are not created by the Constitution. Rather they are created and their dimensions are defined by existing rules and understandings that stem from an independent source such as state law ... that secure certain benefits and that support claims of entitlement to those benefits.” Board of Regents of State Colleges v. Roth, 408 U.S. 564, 577, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972); accord Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 538, 105 S.Ct. 1487, 84 L.Ed.2d 494 (1985); Driggins v. City of Oklahoma City, 954 F.2d 1511, 1513 (10th Cir.1992). In order to create a property interest, the state statute or regulation must give the recipient “a legitimate claim of entitlement to [the benefit],” in this case, the benefit of continued employment at a particular rank. Roth, 408 U.S. at 577, 92 S.Ct. 2701. Detailed procedures in a state statute or regulation are not, by themselves, sufficient to create a property interest. See Hennigh v. City of Shawnee, 155 F.3d 1249, 1254 (10th Cir.1998); Stiesberg v. California, 80 F.3d 353, 357 (9th Cir.1996). However, we recently held that a state statute or regulation can create a protected property interest" }, { "docid": "19270942", "title": "", "text": "salary and benefits through the duration of his one-year employment contract, which ended June 30, 2003. The Board, however, rejected Kirkland’s resignation and the resignation agreement. Kirkland alleges that by rejecting this resignation' agreement, the individual Defendants deprived him of a property interest in that agreement without due process. We conclude that Kirkland did not have a protected property interest in the resignation agreement. “Property interests are not created by the Constitution, but rather by independent sources such as state law.” Brown, 399 F.3d at 1254 (citing Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 538, 105 S.Ct. 1487, 84 L.Ed.2d 494 (1985)); see also Roth, 408 U.S. at 577, 92 S.Ct. 2701. “Thus, constitutionally protected property interests are created and defined by statute, ordinance, contract, implied contract and rules and understandings developed .by state officials.” Hulen v. Yates, 322 F.3d 1229, 1240 (10th Cir.2003) (per curiam) (citing, e.g., Roth and Loudermill). Kirkland asserts he had a property interest in the resignation agreement because it was an enforceable contract under Colorado law. But pursuant to District policy, the Board first had to approve any expenditure over $50,000. And paying Kirkland the remainder of his salary and benefits through June 30, 2003, would have required such an expenditure. Therefore, the resignation agreement did not bind the District unless and until the Board approved it. And the Board never approved it. Because the resignation agreement thus never became an enforceable contract, Kirkland never gained a property interest in that agreement such that it would be subject to due process protections. Kirkland protests that, when he met with Superintendent Zila and Assistant Superintendent Garcia, Kirkland believed these two administrators had the authority to enter into a resignation agreement with Kirkland that would be enforceable against the District. But that argument is unavailing. Under Colorado law, a government entity’s power to enter into contractual obligations is circumscribed by statute and ordinances. See Colo. Springs Fire Fighters Ass’n v. City of Colo. Springs, 784 P.2d 766, 773-74 (Colo.1989); see also Shaw v. Sargent Sch. Dist. No. RE-33-J ex rel. Bd. of Educ., 21 P.3d" }, { "docid": "3227450", "title": "", "text": "of process, the court must first ascertain the nature of her constitutionally protected property interest in her employment with the school district, if any. A constitutionally protected property interest is a “legitimate claim of entitlement” to some benefit. Bd. of Regents v. Roth, 408 U.S. 564, 577, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972). A property interest is more than an abstract need or desire or a unilateral expectation. Id. It is “an individual entitlement grounded in state law, which cannot be removed except for cause.” Logan v. Zimmerman Brush Co., 455 U.S. 422, 430, 102 S.Ct. 1148, 71 L.Ed.2d 265 (1982). Property interests are not created by the federal constitution, but rather are created and defined “by existing rules or understandings that stem from an independent source such as state law.” Roth, 408 U.S. at 577, 92 S.Ct. 2701; see also Hyde Park Co. v. Santa Fe City Council, 226 F.3d 1207, 1210 (10th Cir.2000) (“Due Process is not an end in itself”). “Thus, constitutionally protected property interests are created and defined by statute, ordinance, contract, implied contract and rules and understandings developed by state officials.” Hulen v. Yates, 322 F.3d 1229, 1240 (10th Cir.2003). In this case, plaintiff has not alleged any rule or express or implied contract from which her claimed property interest arises. Therefore, the court must look at Kansas law to determine the extent of her alleged property interest under state law. In this regard, it is significant that plaintiffs complaint alleges that at all relevant times she was a school principal or administrator; there is no allegation from which it can be inferred that she was acting as a school teacher at any time pertinent to the allegations in her complaint. The distinction is significant because Kansas law protects tenured teachers from termination or nonrenewal of their teaching contracts absent good cause, which includes the right to a meaningful due process hearing. See generally K.S.A. §§ 72-5436 to 75-5447 (2002 & Supp.2003) (outlining the due process procedures available to teachers); Kansas State Bd. of Educ. v. Marsh, 274 Kan. 245, 255, 50 P.3d 9," }, { "docid": "20907913", "title": "", "text": "quotation marks omitted)). “The Constitution does not create or define the contours of ‘liberty’ or ‘property,’ the ‘broad and majestic terms’ enshrined in the Fourteenth Amendment.” Farthing v. City of Shawnee, Kan., 39 F.3d 1131, 1135 (10th Cir.1994) (quoting Bd. of Regents of State Colls. v. Roth, 408 U.S. 564, 571, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972)). “To have a property interest in a benefit, a person clearly must have more than an abstract need or desire for it. He must have more than a unilateral expectation of it. He must, instead, have a legitimate claim of entitlement to it.” Bd. of Regents of State Colls. v. Roth, 408 U.S. at 577, 92 S.Ct. 2701. “Such an interest arises not from the Due Process Clause of the Constitution itself, but is created by independent sources such as a state or federal statute, a municipal charter or ordinance, or an implied or express contract.” Teigen v. Renfrow, 511 F.3d 1072, 1079 (10th Cir.2007). See Paul v. Davis, 424 U.S. 693, 710, 96 S.Ct. 1155, 47 L.Ed.2d 405 (1976) (“[Liberty and property] interests attain ... constitutional status by virtue of the fact that they have been initially recognized and protected by state law.”). Property interests, of course, are not created by the Constitution. Rather they are created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law — rules or understandings that secure certain benefits and that support claims of entitlement to those benefits. Bd. of Regents of State Colls. v. Roth, 408 U.S. at 577, 92 S.Ct. 2701. See Farthing v. City of Shawnee, Kan., 39 F.3d at 1135 (“Rather, property interests, which are the subject of the present litigation, ‘are created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law.’ ” (quoting Bd. of Regents of State Colls. v. Roth, 408 U.S. at 577, 92 S.Ct. 2701)). “[0]nce it is determined that the Due Process Clause applies, the question remains what process is due.” Cleveland Bd. of Educ." }, { "docid": "15292731", "title": "", "text": "procedural due process, courts must engage in a two-step inquiry: (1) did the individual possess a protected interest such that the due process protections were applicable; and if so, then (2) was the individual afforded an appropriate level of process.” Farthing v. City of Shauwnee, 39 F.3d 1131, 1135 (10th Cir.1994). The district court assumed Mr. Hinsdale had a protected property interest in continued employment, and held Mr. Hinsdale was “afforded adequate federal procedural due process.” Mr. Hinsdale argues he had a protected property interest in continued employment, and the district court erred in holding he received adequate due process when he was terminated. We conclude Mr. Hinsdale did not have a constitutionally protected property interest in continued employment as Court Administrator, and, on this basis, affirm. See Sandoval, 29 F.3d at 542 n. 6. “Property interests, of course, are not created by the Constitution. Rather they are created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law-rules or understandings that secure certain benefits and that support claims of entitlement to those benefits.” Roth, 408 U.S. at 577. In other words, “[property] interests attain ... constitutional status by virtue of the fact that they have been initially recognized and protected by state law.” Paul v. Davis, 424 U.S. 693, 710, 96 S.Ct. 1155, 47 L.Ed.2d 405 (1976). “In the context of a public employee ... the touchstone is whether, under state law, the employee has ‘a legitimate claim of entitlement’ in continued employment, as opposed to a ‘unilateral expectation’ or ‘an abstract need or desire’ for it.” Farthing, 39 F.3d at 1135 (quoting Roth, 408 U.S. at 577). “Protected property interests arise ... from state statutes, regulations, city ordinances, and express or implied contracts. Such interests may be created by rules or mutually explicit understandings that support Plaintiffs claim of entitlement to the benefit.” Dill v. City of Edmond, 155 F.3d 1193, 1206 (10th Cir .1998) (quotation marks, citations, and alteration omitted). In Farthing, we extensively reviewed Kansas law regarding public employment in the context of a procedural due" }, { "docid": "23087519", "title": "", "text": "Saunders’s response to it have created a factual moving target. Due to these uncertainties, we remand DePree’s injunctive claim based on First Amendment retaliation for further development. B. Due Process DePree contends that the Appellees violated the Due Process Clause by preventing him from teaching and denying him access to the business school. The threshold requirement of any due process claim is the government’s deprivation of a plaintiffs liberty or property interest. See Moore v. Miss. Valley State Univ., 871 F.2d 545, 548 (5th Cir.1989). Without such an interest, “no right to due process accrues.” Id. The district court concluded that because DePree’s tenure, salary and title remained intact, and he had no property interest in teaching, he had not been deprived of a constitutional property right. We agree. A “person’s interest in a benefit is a ‘property’ interest for due process purposes if there are ... rules or mutually explicit understandings that support [the] claim of entitlement to the benefit .... ” Perry v. Sindermann, 408 U.S. 593, 601, 92 S.Ct. 2694, 2699, 33 L.Ed.2d 570 (1972). Constitutionally protected property interests are created and defined by understandings that “stem from an independent source such as state law .... ” Bd. of Regents v. Roth, 408 U.S. 564, 577, 92 S.Ct. 2701, 2709, 33 L.Ed.2d 548 (1972). Courts have held that no protected property interest is implicated by reassigning or transferring an employee absent a specific statutory provision or contract term to the contrary. See Kelleher v. Flawn, 761 F.2d 1079, 1087 (5th Cir.1985). See also Maples v. Martin, 858 F.2d 1546, 1550-51 (11th Cir.1988); Hulen v. Yates, 322 F.3d 1229, 1240 (10th Cir.2003); Wagner v. Tex. A&M Univ., 939 F.Supp. 1297, 1312 (S.D.Tex.1996). DePree’s reliance on the faculty handbook is inapposite, nor has he pointed to any Mississippi law or contract between him and the University reflecting an understanding that he has a unique property interest in teaching. DePree also asserts that his liberty interest was violated because he was stigmatized by the discipline process. See Kelleher, 761 F.2d at 1087. To the contrary, there is no evidence that" }, { "docid": "23530618", "title": "", "text": "evidence on which a jury could reasonably find for the nonmoving party.” Manders, 875 F.2d at 265. With this in mind, we turn to the merits of plaintiffs claims. A We first address plaintiffs due process claim. To assess whether an individual was denied procedural due process, “courts must engage in a two-step inquiry: (1) did the individual possess a protected interest such that the due process protections were applicable; and, if so, then (2) was the individual afforded an appropriate level of process.” Farthing v. City of Shawnee, 39 F.3d 1131, 1135 (10th Cir.1994); see also Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 541, 105 S.Ct. 1487, 1492-93, 84 L.Ed.2d 494 (1985). To prevail on a due process claim against state officials, a plaintiff must first demonstrate that the Due Process Clause of the Fourteenth Amendment protects the liberty or property interest of which she was allegedly deprived. Board of Regents of State Colleges v. Roth, 408 U.S. 564, 569, 92 S.Ct. 2701, 2705, 33 L.Ed.2d 548 (1972) (“The requirements of procedural due process apply only to the deprivation of interests encompassed by the Fourteenth Amendment’s protection of liberty and property.”). In this ease, although plaintiff had no written contract, she contends that the policy manual created an implied-in-fact contract of employment that prohibited the County from firing her except for cause. Plaintiff points primarily to provisions in the policy manual for a systematic employee disciplinary procedure and for employee grievance hearings before the Board of County Commissioners. Whether state officials have violated the Fourteenth Amendment is a question of federal constitutional law, but the preliminary question of whether a plaintiff possessed a protected property interest must be “determined by reference to state law.” Casias v. City of Raton, 738 F.2d 392, 394 (10th Cir.1984); see also Paul v. Davis, 424 U.S. 693, 710, 96 S.Ct. 1155, 1165, 47 L.Ed.2d 405 (1976) (stating that property “interests attain ... constitutional status by virtue of the fact that they have been initially recognized and protected by state law”). Moreover, any of several sources of state law, including a local" }, { "docid": "23308420", "title": "", "text": "claim to relief that is plausible on its face.” See Bell Atlantic Corp. v. Twombly, — U.S. -, -, 127 S.Ct. 1955, 1974, 167 L.Ed.2d 929 (2007). A. Due Process Plaintiffs first argue the district court erred in dismissing their procedural and substantive due process claims. The Fourteenth Amendment prohibits any state from “depriv[ing] any person of life, liberty, or property, without due process of law.” U.S. Const, amend. XIV, § 1. Thus, “to prevail on either a procedural or substantive due process claim, a plaintiff must first establish that a defendant’s actions deprived plaintiff of a protectible property interest.” Hyde Park Co. v. Santa Fe City Council, 226 F.3d 1207, 1210 (10th Cir.2000); see also Steffey v. Orman, 461 F.3d 1218, 1221 (10th Cir.2006) (“A due process claim under the Fourteenth Amendment can only be maintained where there exists a constitutionally cognizable liberty or property interest with which the state has interfered.”). In the context of a procedural due process claim, it is only after the plaintiff first demonstrates the existence and deprivation of a protected property interest that the plaintiff is constitutionally entitled to an appropriate level of process. See Hennigh v. City of Shawnee, 155 F.3d 1249, 1253 (10th Cir.1998). An individual has a property interest in a benefit for purposes of due process protection only if he has a “legitimate claim of entitlement” to the benefit, as opposed to a mere “abstract need or desire” or “unilateral expectation.” Bd. of Regents of State Colls. v. Roth, 408 U.S. 564, 577, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972). Such an interest arises not from the Due Process Clause of the Constitution itself, but is “created by independent sources such as a state or federal statute, a municipal charter or ordinance, or an implied or express contract.” Carnes v. Parker, 922 F.2d 1506, 1509 (10th Cir.1991). The plaintiff must demonstrate an “entitlement to a substantive right or benefit” supported by “rules or mutually explicit understandings ... that he may invoke at a hearing.” Robbins v. U.S. Bureau of Land Mgmt., 438 F.3d 1074, 1085 (10th Cir.2006) (quotation omitted)." } ]

[ { "docid": "23103451", "title": "", "text": "the admissibility of what would otherwise be hearsay and give meaningful cautionary instructions.” We do not know which statements Malone is objecting to; he identifies none. We can only note, once again, that, as Malone admits, the District Court was careful to instruct the jury that certain evidence was admissible only on the murder-for-hire counts, or against the murder-for-hire defendants, and not on the drug counts. 5. Guns Evidence Jai Jones contends he was denied a fair trial because the District Court admitted various guns into evidence, guns which had nothing to do with the case against him. True, guns were admitted into evidence which had nothing to do with Jones, but the government never argued otherwise. And just because the guns were not relevant to the charges against Jones does not mean they were not admissible against his eo-de-fendants. It is a simple fact of joint trials that some evidence is relevant to and admissible against only some defendants. The proper response is to instruct the jury, as the District Court did in this case, that the evidence — here, the guns — is admissible against some defendants but not others. In any event, Jones has not proved, or even alleged with specificity, any prejudice, so there was no abuse of discretion. D. Use of Transcript in Jury Deliberations Jermaine Saunders argues that the District Court abused its discretion by allowing the jury to use transcripts of the wiretapped conversations during trial and deliberations. First, Saunders complains that the government did not give the defendants enough time to evaluate the transcripts to insure their accuracy. Next, he says that the transcripts were not “objectively verifiable” translations of the recordings; instead, they included the government’s “prefabricated subjective interpretations of conversations that were recorded in English.” Saunders also insists that there was no need for the transcripts, because the tapes themselves were clear and audible, and the speakers were identified in Sergeant Murphy’s testimony. See United States v. McMillan, 508 F.2d 101, 105 (8th Cir.1974) (“[T]he need for ... transcripts is generally caused by two circumstances: inaudibility of portions of the" } ]

[ { "docid": "3897994", "title": "", "text": "was neither unreasonably harsh nor unconstitutional. Therefore, we affirm Wilcox’s 110-month sentence. B. Finally, Wilcox appeals the district court’s award of restitution to D.T.’s mother, Melissa, under the Mandatory Victims Restitution Act, 18 U.S.C. § 3663A. The district court ordered Wilcox to pay Melissa restitution of $5,678.70. Of this amount, the court awarded Melissa $4,957.80 under § 3663A(b)(2)(C) to reimburse her for lost income. The court awarded the remaining $720.90 to her under § 3663A(b)(2)(A) for the cost of transporting D.T. to “healing ceremonies.” We consider de novo the court’s interpretation of the statute, and review its restitution order for abuse of discretion. United States v. Liner, 435 F.3d 920, 926 (8th Cir.2006). We conclude that the district court erred by awarding Melissa restitution as a “victim” under § 3663A(b)(2)(C). While the statute defines “victim” as “a person directly and proximately harmed as a result of the commission of an offense for which restitution may be ordered,” id. § 3663A(a)(2), the subsection concerning reimbursement for lost income refers to a specific victim: “[I]n the case of an offense resulting in bodily injury to a victim ... [the defendant shall] reimburse the victim for income lost by such victim as result of such offense.” 18 U.S.C. § 3663A(b)(2)(C) (emphases added). The use of the definite article indicates that “the victim” who may be reimbursed is the victim described at the beginning of the subsection — that is, the victim who suffered bodily injury. See Work v. McAlester-Edwards Coal Co., 262 U.S. 200, 208, 43 S.Ct. 580, 67 L.Ed. 949 (1923) (holding that where statute referred to “the appraisement,” “the use of the definite article means an appraisement specifically provided for.”); Flandreau Santee Sioux Tribe v. United States, 197 F.3d 949, 952 (8th Cir.1999) (“The statute’s use of ‘the person’ refers to someone specific”); Webster’s Third New International Dictionary 2368 (2002) (“The[:] used as a function word to indicate that a following noun or noun equivalent refers to someone or something previously mentioned or clearly understood from the context of the situation”). Because only D.T., not Melissa, suffered bodily injury, Melissa is" }, { "docid": "3897975", "title": "", "text": "condition.” Id. To determine whether a declarant was still under the “stress of excitement caused by an event” when a statement was made, we consider “the lapse of time between the startling event and the statement, whether the statement was made in response to an inquiry, the age of the declarant, the physical and mental condition of the declarant, the characteristics of the event, and the subject matter of the statement.” United States v. Clemmons, 461 F.3d 1057, 1061 (8th Cir.2006). We also examine whether the declarant’s stress or excitement was continuous from the time of the event until the time of the statements. United States v. Marrowbone, 211 F.3d 452, 455 (8th Cir.2000). Accordingly, we have admitted evidence of a telephone call made to report a crime shortly after it occurred, where the declarant sounded very upset, and the circumstances of the crime were such that an ordinary person would have been startled. United States v. Phelps, 168 F.3d 1048, 1055 (8th Cir.1999). Here, D.T.’s testimony, buttressed by Wilcox’s account of the event, established that she called the police department shortly after the sexual abuse. After the abuse and before making any calls, D.T. picked up a towel, turned on the bath water, and struggled with Wilcox for the telephone. D.T. testified that it took her a “second” to get the towel and a “couple minutes” to turn on the bath water, and that Wilcox prevented her from making a call for roughly ten minutes after she first picked up the telephone. She also described a brief interruption by her little brother, a call to her mother in which she left a message, and a task of looking up the police department’s telephone number before she made the call. This testimony establishes that D.T. called the police at her first opportunity and that only a brief period of time passed between the abuse and her call to the police. Evidence of her continuous excitement is borne out in the recording of the telephone call itself; Wilcox admits that D.T. was crying and that her voice sounded noticeably upset. (T." }, { "docid": "3897993", "title": "", "text": "case, the district court granted Wilcox a downward adjustment for acceptance of responsibility, even though he proceeded to trial, proclaimed his innocence, and sought to portray his minor victim as a sexual aggressor. The sentencing guidelines provide that the downward 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.” USSG § 3E1.1, comment. (n.2). Many defendants who follow Wilcox’s course of action receive no adjustment for acceptance of responsibility, and instead receive an upward adjustment for obstruction of justice pursuant to USSG § 3C1.1. E.g., United States v. Thundershield, 474 F.3d 503, 507-08 (8th Cir.2007); United States v. Cuevas-Arrendondo, 469 F.3d 712, 716 (8th Cir.2006); United States v. Denton, 434 F.3d 1104, 1114 (8th Cir.2006). The district court’s decision to grant Wilcox some leniency under § 3E1.1, but to refrain from reducing the sentence to the bottom of the resulting guideline range was neither unreasonably harsh nor unconstitutional. Therefore, we affirm Wilcox’s 110-month sentence. B. Finally, Wilcox appeals the district court’s award of restitution to D.T.’s mother, Melissa, under the Mandatory Victims Restitution Act, 18 U.S.C. § 3663A. The district court ordered Wilcox to pay Melissa restitution of $5,678.70. Of this amount, the court awarded Melissa $4,957.80 under § 3663A(b)(2)(C) to reimburse her for lost income. The court awarded the remaining $720.90 to her under § 3663A(b)(2)(A) for the cost of transporting D.T. to “healing ceremonies.” We consider de novo the court’s interpretation of the statute, and review its restitution order for abuse of discretion. United States v. Liner, 435 F.3d 920, 926 (8th Cir.2006). We conclude that the district court erred by awarding Melissa restitution as a “victim” under § 3663A(b)(2)(C). While the statute defines “victim” as “a person directly and proximately harmed as a result of the commission of an offense for which restitution may be ordered,” id. § 3663A(a)(2), the subsection concerning reimbursement for lost income refers to a specific victim: “[I]n the case" }, { "docid": "3897965", "title": "", "text": "that gave rise to the criminal charges, Wilcox visited Melissa’s cabin, leaving around midnight. At approximately 3:45 a.m., Melissa left for work at a hog farm thirty miles away. Wilcox returned to the cabin shortly thereafter, while D.T. and her younger brother were alone at the residence. Wilcox testified that he had been out late and was worried about upsetting his grandparents by returning home at such an hour. Thus, he decided to “crash” at Melissa’s cabin. He entered the cabin, walked to the bedroom, woke D.T., and spoke with her briefly. D.T. then fell back asleep, and Wilcox laid down on the bed next to her. D.T. testified that sometime later she awoke to find Wilcox on top of her. Her pants and panties had been removed. She felt something in the “bottom part” of her body that she used to go to the bathroom, and Wilcox’s “lower part” made her “hurt inside.” (T. Tr. at 181-82). She pushed Wilcox away, went to the bathroom, wrapped a towel around herself, and turned on hot bath water because she felt “dirty.” (Id. at 182, 300). She then grabbed the telephone and struggled for it with Wilcox, who told her not to call anyone. After several minutes, Wilcox tired of the struggle and left the cabin. D.T. called her mother’s workplace, but was unable to reach her and left a message. She then called the police, and an officer arrived sometime later. At trial, Wilcox gave a different account of events, portraying himself as the victim and D.T. as the sexual aggressor. He claimed that he awoke and was surprised to find someone on top of him, her “bottom part” rubbing his “part” for thirty seconds, although he acknowledged that he had an erection and that brief penetration had occurred. Because it was dark, he said he did not realize immediately who was on top of him, but when he discovered it was D.T., he asked her, “What’s going on?”, and she jumped off. (Id. at 275). He then stood around in shock, but he conceded that he struggled with D.T." }, { "docid": "3897979", "title": "", "text": "demeanor evidenced stress and excitement, and that no appreciable amount of time had passed since the startling event of sexual abuse. We conclude that the district court did not abuse its discretion by concluding that the statements were admissible as excited utterances. Wilcox appeals the admission of another portion of Melissa’s testimony. At trial, Melissa testified that she and D.T. moved out of their house soon after the abuse, because D.T. “cannot be in the house or anything around it.” (Id. at 125). Wilcox objected that this response was irrelevant, but the objection was overruled. We hold that the district court did not abuse its discretion by ruling that this evidence was relevant. Wilcox attacked D.T.’s credibility by implying that she initiated sexual contact with Wilcox. If the jury believed that Melissa and D.T. moved out of their house after the date of the alleged abuse because of the trauma felt by D.T., that fact tended to rebut the assertion that D.T. was the sexual aggressor and to make it more probable that the abuse actually occurred. See Fed.R.Evid. 401. B. When cross-examining D.T., Wilcox’s counsel asked her whether she had a boyfriend at the time of the abuse. D.T. answered that she did not, but this answer was stricken after the court sustained the government’s objection. Wilcox contends that this ruling was error. His theory is that if D.T. did not have a boyfriend at the time of the abuse, then she might have been infatuated with Wilcox, thereby lending support to Wilcox’s later testimony that D.T. had initiated the sexual contact. The asserted relevance of this evidence rests on the supposition that D.T.’s lack of a boyfriend increased the likelihood that D.T. was infatuated with Wilcox. This supposition has no support in the record. Wilcox himself admitted at trial that D.T. had never shown any interest in him. Because discussion of D.T.’s dating habits was potentially prejudicial and had little or no probative value, the court did not abuse its discretion in sustaining the objection and striking D.T.’s response. See Fed.R.Evid. 403. Wilcox also appeals the district court’s" }, { "docid": "3897970", "title": "", "text": "act charged was contact between the penis and the vulva, which “occurs upon penetration, however [] slight.” 18 U.S.C. § 2246(2)(A). Wilcox contends that evidence of penetration was absent and that there was thus insufficient evidence to prove sexual abuse. We disagree. Wilcox’s own testimony provides sufficient evidence of penetration. During cross-examination, the government specifically asked Wilcox, “Your penis was in her vagina, correct, thirty seconds?”, and Wilcox responded, “Yes.” (T. Tr. at 299). The government again asked if his penis was “inside it,” and Wilcox said, “It was out, rubbed it, touched it.” (Id.). The prosecution continued, “Then it was inside thirty seconds, correct?”, to which Wilcox replied that it had been “[n]ot that long” but only “about ten, five [seconds].” (Id.). In addition to this clear evidence of penetration, D.T. testified that when she awoke to find Wilcox on top of her, she felt something in the “bottom part” of her body that she used to go to the bathroom and that “it hurt inside” and later bled. (Id. at 181, 188). She claimed that Wilcox’s “lower part” caused this pain inside her. (Id. at 181-82). Thus, the jury had sufficient evidence to conclude that penetration occurred. Wilcox further asserts that the jury lacked sufficient evidence to convict him under 18 U.S.C. § 2242, which makes it unlawful to engage in a sexual act with a person “physically incapable of declining participation in, or communicating unwillingness to engage in, that act.” 18 U.S.C. § 2242(2)(B). Here too, the jury had sufficient evidence to convict Wilcox. A reasonable jury may conclude that a person who is asleep when a sexual act begins is physically unable to decline participation in that act. United States v. Barrett, 937 F.2d 1346, 1347-48 (8th Cir.1991). D.T.’s testimony that she awoke with Wilcox on top of her and feeling pain inside of her “bottom part” provided sufficient evidence for the jury to conclude that penetration occurred while she was asleep. Wilcox also contends that the district court erred by denying his challenge to the government’s peremptory strike of a Hispanic venireperson. Wilcox objected to" }, { "docid": "3897976", "title": "", "text": "that she called the police department shortly after the sexual abuse. After the abuse and before making any calls, D.T. picked up a towel, turned on the bath water, and struggled with Wilcox for the telephone. D.T. testified that it took her a “second” to get the towel and a “couple minutes” to turn on the bath water, and that Wilcox prevented her from making a call for roughly ten minutes after she first picked up the telephone. She also described a brief interruption by her little brother, a call to her mother in which she left a message, and a task of looking up the police department’s telephone number before she made the call. This testimony establishes that D.T. called the police at her first opportunity and that only a brief period of time passed between the abuse and her call to the police. Evidence of her continuous excitement is borne out in the recording of the telephone call itself; Wilcox admits that D.T. was crying and that her voice sounded noticeably upset. (T. Tr. at 302). The district court did not abuse its discretion in concluding that D.T. was still under the stress of excitement caused by the abuse when she made the call, and the evidence was properly admitted. Wilcox also objected to the use of the transcript of this recording. The transcript was not admitted into evidence, but the court allowed the jury members to review the transcript while the recording was played. So long as transcripts are accurate, they may be used by the jury as an aid in considering a recording. United States v. Delpit, 94 F.3d 1134, 1147-48 (8th Cir.1996). Wilcox does not contend that the transcript was inaccurate, and the court did not abuse its discretion by allowing the jury to use it. Wilcox further argues that the district court should have excluded hearsay testimony offered by Melissa, D.T.’s mother. Melissa testified that on the morning of the abuse, she called home after a co-worker alerted her that something was amiss. She then spoke to D.T., who, while crying, told Melissa that" }, { "docid": "3897973", "title": "", "text": "for its peremptory-strike, which the defendant may attempt to show to be a pretext. Finally, the trial judge determines whether the defendant has proven that the strike was motivated by purposeful discrimination. United States v. Roebke, 333 F.3d 911, 913 (8th Cir.2003). In this case, the district court ruled that even if Wilcox had made a prima facie case of racial discrimination, the government offered sufficient race-neutral reasons to defeat his Batson challenge. Most prominent among these reasons was the prospective juror’s prior conviction for assault. That a prospective juror has a criminal record is a proper race-neutral reason for striking the venire member. United States v. Crawford, 413 F.3d 873, 875 (8th Cir.2005). Wilcox made no showing that the government was using the prospective juror’s conviction as a pretext for purposeful discrimination. The district court’s finding that the strike was motivated by race-neutral reasons was not clearly erroneous. III. Wilcox appeals several evidentiary rulings. We review the district court’s interpretation and application of the rules of evidence de novo and review the evidentiary rulings for abuse of discretion. United States v. Kenyon, 397 F.3d at 1079. A. Wilcox argues that the district court erred by admitting a recording of D.T.’s telephone call to the police department, in which D.T. stated that “David” had been on top of her. The prosecution played the recording for the jury during the trial, and gave the jury a transcript of the conversation to review while the tape was played. Wilcox contends that the court erred by admitting the tape and allowing the jury to view the transcript, because D.T.’s recorded statements were impermissible hearsay. The court admitted the recording as evidence that Wilcox committed the alleged crimes, so D.T.’s recorded statements were offered “to prove the truth of the matter asserted,” and they are therefore hearsay. See Fed.R.Evid. 801(c). D.T.’s statements were admissible, however, under the excited utterance exception to the hearsay rule. Fed.R.Evid. 803(2). An excited utterance is a “statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or" }, { "docid": "3897974", "title": "", "text": "for abuse of discretion. United States v. Kenyon, 397 F.3d at 1079. A. Wilcox argues that the district court erred by admitting a recording of D.T.’s telephone call to the police department, in which D.T. stated that “David” had been on top of her. The prosecution played the recording for the jury during the trial, and gave the jury a transcript of the conversation to review while the tape was played. Wilcox contends that the court erred by admitting the tape and allowing the jury to view the transcript, because D.T.’s recorded statements were impermissible hearsay. The court admitted the recording as evidence that Wilcox committed the alleged crimes, so D.T.’s recorded statements were offered “to prove the truth of the matter asserted,” and they are therefore hearsay. See Fed.R.Evid. 801(c). D.T.’s statements were admissible, however, under the excited utterance exception to the hearsay rule. Fed.R.Evid. 803(2). An excited utterance is a “statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition.” Id. To determine whether a declarant was still under the “stress of excitement caused by an event” when a statement was made, we consider “the lapse of time between the startling event and the statement, whether the statement was made in response to an inquiry, the age of the declarant, the physical and mental condition of the declarant, the characteristics of the event, and the subject matter of the statement.” United States v. Clemmons, 461 F.3d 1057, 1061 (8th Cir.2006). We also examine whether the declarant’s stress or excitement was continuous from the time of the event until the time of the statements. United States v. Marrowbone, 211 F.3d 452, 455 (8th Cir.2000). Accordingly, we have admitted evidence of a telephone call made to report a crime shortly after it occurred, where the declarant sounded very upset, and the circumstances of the crime were such that an ordinary person would have been startled. United States v. Phelps, 168 F.3d 1048, 1055 (8th Cir.1999). Here, D.T.’s testimony, buttressed by Wilcox’s account of the event, established" }, { "docid": "3897967", "title": "", "text": "in an effort to prevent her from making a telephone call. Eventually, he gave up and returned to his home, where he remained until a police officer arrived. Wilcox has since retracted this story, admitting at sentencing that his trial testimony was a fabrication and that he did sexually abuse D.T. in the early morning hours of August 19, 2005. Melissa testified that on the morning of August 19, she received word at the hog farm that something was amiss at her home. She called the cabin and spoke to D.T., who told her that Wilcox had been on top of her and had “hurt” her. Melissa then left the farm and rushed back to the cabin, where D.T., D.T.’s sister, and Melissa’s mother were waiting for her. Melissa comforted D.T. and took her to the Wan-blee clinic, arriving before the clinic had opened. After speaking with a nurse, D.T. and Melissa were transported by ambulance to the Pine Ridge Hospital, where D.T. was examined. Wilcox was charged with two counts of sexual abuse. Count I charged Wilcox with engaging in a sexual act with D.T. when she was “physically incapable of declining participation in, or communicating unwillingness to engage in, that act,” as prohibited by 18 U.S.C. § 2242(2). Count II charged him with sexual abuse of a minor in violation of 18 U.S.C. § 2243(a). Wilcox pled not guilty and successfully moved to suppress his underwear. The underwear had been seized by a tribal police officer, and laboratory analysis determined that it contained D.T.’s vaginal fluid. Wilcox was then tried by a jury, which convicted him on both counts. At sentencing, the district court initially determined that Wilcox had an offense level of 32 and a criminal history category of I under the United States Sentencing Guidelines. After Wilcox admitted his guilt during the sentencing hearing, however, the court granted him a reduction for acceptance of responsibility. See USSG § 3El.l(a). This reduced his offense level to 30 and resulted in an advisory guideline range of 97 to 120 months. The court then imposed a sentence of 110" }, { "docid": "3897964", "title": "", "text": "COLLOTON, Circuit Judge. A jury convicted David Wilcox of sexual abuse of a minor, D.T., in violation of 18 U.S.C. §§ 2242 and 2243. On appeal, Wilcox challenges the sufficiency of the evidence against him, the process for selecting the jury that convicted him, several of the district court’s evidentiary rulings, the jury instructions, the reasonableness of the sentence imposed, and the court’s award of restitution to D.T.’s mother. We affirm Wilcox’s conviction but vacate a portion of the restitution award and remand for imposition of a corrected sentence. I. The indictment charged that Wilcox committed acts of sexual abuse on August 19, 2005. At that time, D.T. was fourteen years old, and Wilcox was eighteen. D.T. lived with her mother, Melissa, and other family members in a small, two-bedroom cabin in Wanblee, South Dakota, on the Pine Ridge Indian Reservation. Wilcox lived with his grandparents a block away. Wilcox and Melissa were cousins, and Wilcox was a regular guest at her cabin. Wilcox also knew D.T. fairly well. On the night before the incident that gave rise to the criminal charges, Wilcox visited Melissa’s cabin, leaving around midnight. At approximately 3:45 a.m., Melissa left for work at a hog farm thirty miles away. Wilcox returned to the cabin shortly thereafter, while D.T. and her younger brother were alone at the residence. Wilcox testified that he had been out late and was worried about upsetting his grandparents by returning home at such an hour. Thus, he decided to “crash” at Melissa’s cabin. He entered the cabin, walked to the bedroom, woke D.T., and spoke with her briefly. D.T. then fell back asleep, and Wilcox laid down on the bed next to her. D.T. testified that sometime later she awoke to find Wilcox on top of her. Her pants and panties had been removed. She felt something in the “bottom part” of her body that she used to go to the bathroom, and Wilcox’s “lower part” made her “hurt inside.” (T. Tr. at 181-82). She pushed Wilcox away, went to the bathroom, wrapped a towel around herself, and turned on hot" }, { "docid": "3897977", "title": "", "text": "Tr. at 302). The district court did not abuse its discretion in concluding that D.T. was still under the stress of excitement caused by the abuse when she made the call, and the evidence was properly admitted. Wilcox also objected to the use of the transcript of this recording. The transcript was not admitted into evidence, but the court allowed the jury members to review the transcript while the recording was played. So long as transcripts are accurate, they may be used by the jury as an aid in considering a recording. United States v. Delpit, 94 F.3d 1134, 1147-48 (8th Cir.1996). Wilcox does not contend that the transcript was inaccurate, and the court did not abuse its discretion by allowing the jury to use it. Wilcox further argues that the district court should have excluded hearsay testimony offered by Melissa, D.T.’s mother. Melissa testified that on the morning of the abuse, she called home after a co-worker alerted her that something was amiss. She then spoke to D.T., who, while crying, told Melissa that “David” had been on top of D.T. when she awakened and that he had hurt her. Wilcox objected to these statements as inadmissible hearsay, and the court overruled the objection. We conclude that these statements also were admissible as excited utterances. Melissa’s testimony suggests that she spoke with D.T. soon after D.T. called the police department. Mary Forney, who answered D.T.’s call to the police department, testified that D.T. called the department at roughly 6:45 a.m. Melissa testified that a co-worker informed her that she needed to call home at roughly 6:45 a.m., and that she eventually spoke to D.T. by telephone early in the morning. This timing is consistent with D.T.’s account, since D.T. testified that she left a message for her mother at the hog farm before calling the police. Melissa then walked a quarter-mile to the farm’s office and called home, at which time she spoke to D.T. Thus, the district court reasonably could conclude that Melissa’s testimony places her conversation with D.T. shortly after D.T.’s call to the police, that D.T.’s" }, { "docid": "3897981", "title": "", "text": "denial of his motion for a continuance. Wilcox had subpoenaed Annette Stands to testify as a witness for the defense. Stands was the ambulance driver who drove D.T. and Melissa from the Wanblee clinic to the Pine Ridge Hospital on the morning of the abuse. According to Wilcox’s counsel, Stands would have testified that during the drive to the hospital, Melissa was “boisterous, aggressive, loud, and basically assertive in nature, while [D.T.] simply did what her mother told her to do.” (T. Tr. at 358). When Stands failed to appear, Wilcox moved for a continuance, arguing that Stands’s absence was likely attributable to the weather. The court denied the motion, noting that Wilcox had several days’ warning that a winter storm was coming, that the roads were still passable, and that Wilcox had not requested a material witness warrant. The district court is afforded broad discretion when ruling on a request for a continuance. Continuances are generally disfavored and should be granted only if the moving party has shown a compelling reason. We will reverse a district court’s denial of a continuance only if the court abused its discretion and the moving party was prejudiced as a result. United States v. Cotroneo, 89 F.3d 510, 514 (8th Cir.1996). We do not believe that the district court abused its discretion here. Stands’s testimony was at most marginally relevant to the credibility of D.T. and Melissa. Moreover, during cross examination, Melissa already had acknowledged that she directed events relating to D.T.’s care after hearing of the abuse, and did not deny that she might have been “confrontational” when doing so. Thus, Stands’s testimony would have been at least partially cumula tive, and any remaining probative value was minimal. We see no prejudice to Wilcox, and the district court thus did not abuse its discretion by denying Wilcox’s motion for a continuance. Wilcox next contends that the district court impermissibly restricted the scope of his closing argument. A district court has broad discretion to limit the scope of closing arguments and “may prohibit arguments that misrepresent the evidence or the law, introduce irrelevant" }, { "docid": "3897982", "title": "", "text": "a district court’s denial of a continuance only if the court abused its discretion and the moving party was prejudiced as a result. United States v. Cotroneo, 89 F.3d 510, 514 (8th Cir.1996). We do not believe that the district court abused its discretion here. Stands’s testimony was at most marginally relevant to the credibility of D.T. and Melissa. Moreover, during cross examination, Melissa already had acknowledged that she directed events relating to D.T.’s care after hearing of the abuse, and did not deny that she might have been “confrontational” when doing so. Thus, Stands’s testimony would have been at least partially cumula tive, and any remaining probative value was minimal. We see no prejudice to Wilcox, and the district court thus did not abuse its discretion by denying Wilcox’s motion for a continuance. Wilcox next contends that the district court impermissibly restricted the scope of his closing argument. A district court has broad discretion to limit the scope of closing arguments and “may prohibit arguments that misrepresent the evidence or the law, introduce irrelevant prejudicial matters, or otherwise tend to confuse the jury.” Richardson v. Bowersox, 188 F.3d 973, 979-80 (8th Cir.1999) (internal quotations omitted). We review the district court’s rulings for abuse of discretion. United States v. Urbina, 431 F.3d 305, 310 (8th Cir.2005). During his closing argument, Wilcox’s counsel rhetorically asked the jury, “Did you hear medical evidence in this case? Was there semen? Was there blood?” (T. Tr. at 419). The government objected, arguing that because the medical evidence substantiating the sexual contact (i.e., Wilcox’s underwear containing D.T.’s vaginal fluid) had been suppressed, counsel’s implication that this evidence did not exist was misleading. The court sustained the objection, stating that counsel cannot refer to suppressed evidence. We have located no precedent discussing the permissibility of the disputed argument. The exclusionary rule, of course, is designed to place the government in the same position it would have occupied absent police error or misconduct. See Nix v. Williams, 467 U.S. 431, 443, 104 S.Ct. 2501, 81 L.Ed.2d 377 (1984). Wilcox contends that he should be free to argue" }, { "docid": "3897969", "title": "", "text": "months, explaining that it was imposing a sentence in the middle of the guideline range, rather than at the bottom, because of Wilcox’s initial dishonesty and because he had forced D.T. to endure the trauma of a trial. The court also awarded Melissa $5,678.70 in restitution under the Mandatory Victim Restitution Act, 18 U.S.C. § 3663A, for lost wages and the costs of transporting D.T. to healing ceremonies. Wilcox appeals the convictions, the term of imprisonment, and the restitution award. II. Wilcox argues that there was insufficient evidence to convict him. When reviewing this claim, “we view the evidence in the light most favorable to the verdict, and we will overturn a conviction only if no reasonable jury could have concluded that the defendant was guilty beyond a reasonable doubt on each essential element of the charge.” United States v. Kenyon, 397 F.3d 1071, 1076 (8th Cir.2005) (internal quotation omitted). Wilcox was convicted of sexual abuse under 18 U.S.C. §§ 2242 and 2243, both of which require proof that a “sexual act” occurred. The sexual act charged was contact between the penis and the vulva, which “occurs upon penetration, however [] slight.” 18 U.S.C. § 2246(2)(A). Wilcox contends that evidence of penetration was absent and that there was thus insufficient evidence to prove sexual abuse. We disagree. Wilcox’s own testimony provides sufficient evidence of penetration. During cross-examination, the government specifically asked Wilcox, “Your penis was in her vagina, correct, thirty seconds?”, and Wilcox responded, “Yes.” (T. Tr. at 299). The government again asked if his penis was “inside it,” and Wilcox said, “It was out, rubbed it, touched it.” (Id.). The prosecution continued, “Then it was inside thirty seconds, correct?”, to which Wilcox replied that it had been “[n]ot that long” but only “about ten, five [seconds].” (Id.). In addition to this clear evidence of penetration, D.T. testified that when she awoke to find Wilcox on top of her, she felt something in the “bottom part” of her body that she used to go to the bathroom and that “it hurt inside” and later bled. (Id. at 181, 188). She" }, { "docid": "3897966", "title": "", "text": "bath water because she felt “dirty.” (Id. at 182, 300). She then grabbed the telephone and struggled for it with Wilcox, who told her not to call anyone. After several minutes, Wilcox tired of the struggle and left the cabin. D.T. called her mother’s workplace, but was unable to reach her and left a message. She then called the police, and an officer arrived sometime later. At trial, Wilcox gave a different account of events, portraying himself as the victim and D.T. as the sexual aggressor. He claimed that he awoke and was surprised to find someone on top of him, her “bottom part” rubbing his “part” for thirty seconds, although he acknowledged that he had an erection and that brief penetration had occurred. Because it was dark, he said he did not realize immediately who was on top of him, but when he discovered it was D.T., he asked her, “What’s going on?”, and she jumped off. (Id. at 275). He then stood around in shock, but he conceded that he struggled with D.T. in an effort to prevent her from making a telephone call. Eventually, he gave up and returned to his home, where he remained until a police officer arrived. Wilcox has since retracted this story, admitting at sentencing that his trial testimony was a fabrication and that he did sexually abuse D.T. in the early morning hours of August 19, 2005. Melissa testified that on the morning of August 19, she received word at the hog farm that something was amiss at her home. She called the cabin and spoke to D.T., who told her that Wilcox had been on top of her and had “hurt” her. Melissa then left the farm and rushed back to the cabin, where D.T., D.T.’s sister, and Melissa’s mother were waiting for her. Melissa comforted D.T. and took her to the Wan-blee clinic, arriving before the clinic had opened. After speaking with a nurse, D.T. and Melissa were transported by ambulance to the Pine Ridge Hospital, where D.T. was examined. Wilcox was charged with two counts of sexual abuse. Count" }, { "docid": "3897983", "title": "", "text": "prejudicial matters, or otherwise tend to confuse the jury.” Richardson v. Bowersox, 188 F.3d 973, 979-80 (8th Cir.1999) (internal quotations omitted). We review the district court’s rulings for abuse of discretion. United States v. Urbina, 431 F.3d 305, 310 (8th Cir.2005). During his closing argument, Wilcox’s counsel rhetorically asked the jury, “Did you hear medical evidence in this case? Was there semen? Was there blood?” (T. Tr. at 419). The government objected, arguing that because the medical evidence substantiating the sexual contact (i.e., Wilcox’s underwear containing D.T.’s vaginal fluid) had been suppressed, counsel’s implication that this evidence did not exist was misleading. The court sustained the objection, stating that counsel cannot refer to suppressed evidence. We have located no precedent discussing the permissibility of the disputed argument. The exclusionary rule, of course, is designed to place the government in the same position it would have occupied absent police error or misconduct. See Nix v. Williams, 467 U.S. 431, 443, 104 S.Ct. 2501, 81 L.Ed.2d 377 (1984). Wilcox contends that he should be free to argue that the government failed to adduce any medical evidence corroborating D.T.’s allegation of sexual contact, just as he could do if the government failed to discover the evidence. E.g., United States v. Thompson, 37 F.3d 450, 454 (9th Cir.1994). The government asserts that while application of the exclusionary rule allows Wilcox to benefit from the absence of the evidence, he should not be permitted to make an argument likely to mislead the jury. Because a jury may presume that the police naturally would have gathered Wilcox’s underwear, the argument goes, the accused should not be allowed to suggest implicitly that the garment contained no incriminating evidence when everyone knows that it really did. We find it unnecessary to pass on the propriety of the district court’s ruling, because we conclude that any error in foreclosing this argument was harmless. Wilcox admitted that he made sexual contact with D.T., and that the sexual contact included penetration. We are at a loss to see how Wilcox could have maintained that the absence of medical evidence showing D.T.’s" }, { "docid": "3897980", "title": "", "text": "actually occurred. See Fed.R.Evid. 401. B. When cross-examining D.T., Wilcox’s counsel asked her whether she had a boyfriend at the time of the abuse. D.T. answered that she did not, but this answer was stricken after the court sustained the government’s objection. Wilcox contends that this ruling was error. His theory is that if D.T. did not have a boyfriend at the time of the abuse, then she might have been infatuated with Wilcox, thereby lending support to Wilcox’s later testimony that D.T. had initiated the sexual contact. The asserted relevance of this evidence rests on the supposition that D.T.’s lack of a boyfriend increased the likelihood that D.T. was infatuated with Wilcox. This supposition has no support in the record. Wilcox himself admitted at trial that D.T. had never shown any interest in him. Because discussion of D.T.’s dating habits was potentially prejudicial and had little or no probative value, the court did not abuse its discretion in sustaining the objection and striking D.T.’s response. See Fed.R.Evid. 403. Wilcox also appeals the district court’s denial of his motion for a continuance. Wilcox had subpoenaed Annette Stands to testify as a witness for the defense. Stands was the ambulance driver who drove D.T. and Melissa from the Wanblee clinic to the Pine Ridge Hospital on the morning of the abuse. According to Wilcox’s counsel, Stands would have testified that during the drive to the hospital, Melissa was “boisterous, aggressive, loud, and basically assertive in nature, while [D.T.] simply did what her mother told her to do.” (T. Tr. at 358). When Stands failed to appear, Wilcox moved for a continuance, arguing that Stands’s absence was likely attributable to the weather. The court denied the motion, noting that Wilcox had several days’ warning that a winter storm was coming, that the roads were still passable, and that Wilcox had not requested a material witness warrant. The district court is afforded broad discretion when ruling on a request for a continuance. Continuances are generally disfavored and should be granted only if the moving party has shown a compelling reason. We will reverse" }, { "docid": "3897978", "title": "", "text": "“David” had been on top of D.T. when she awakened and that he had hurt her. Wilcox objected to these statements as inadmissible hearsay, and the court overruled the objection. We conclude that these statements also were admissible as excited utterances. Melissa’s testimony suggests that she spoke with D.T. soon after D.T. called the police department. Mary Forney, who answered D.T.’s call to the police department, testified that D.T. called the department at roughly 6:45 a.m. Melissa testified that a co-worker informed her that she needed to call home at roughly 6:45 a.m., and that she eventually spoke to D.T. by telephone early in the morning. This timing is consistent with D.T.’s account, since D.T. testified that she left a message for her mother at the hog farm before calling the police. Melissa then walked a quarter-mile to the farm’s office and called home, at which time she spoke to D.T. Thus, the district court reasonably could conclude that Melissa’s testimony places her conversation with D.T. shortly after D.T.’s call to the police, that D.T.’s demeanor evidenced stress and excitement, and that no appreciable amount of time had passed since the startling event of sexual abuse. We conclude that the district court did not abuse its discretion by concluding that the statements were admissible as excited utterances. Wilcox appeals the admission of another portion of Melissa’s testimony. At trial, Melissa testified that she and D.T. moved out of their house soon after the abuse, because D.T. “cannot be in the house or anything around it.” (Id. at 125). Wilcox objected that this response was irrelevant, but the objection was overruled. We hold that the district court did not abuse its discretion by ruling that this evidence was relevant. Wilcox attacked D.T.’s credibility by implying that she initiated sexual contact with Wilcox. If the jury believed that Melissa and D.T. moved out of their house after the date of the alleged abuse because of the trauma felt by D.T., that fact tended to rebut the assertion that D.T. was the sexual aggressor and to make it more probable that the abuse" }, { "docid": "3897968", "title": "", "text": "I charged Wilcox with engaging in a sexual act with D.T. when she was “physically incapable of declining participation in, or communicating unwillingness to engage in, that act,” as prohibited by 18 U.S.C. § 2242(2). Count II charged him with sexual abuse of a minor in violation of 18 U.S.C. § 2243(a). Wilcox pled not guilty and successfully moved to suppress his underwear. The underwear had been seized by a tribal police officer, and laboratory analysis determined that it contained D.T.’s vaginal fluid. Wilcox was then tried by a jury, which convicted him on both counts. At sentencing, the district court initially determined that Wilcox had an offense level of 32 and a criminal history category of I under the United States Sentencing Guidelines. After Wilcox admitted his guilt during the sentencing hearing, however, the court granted him a reduction for acceptance of responsibility. See USSG § 3El.l(a). This reduced his offense level to 30 and resulted in an advisory guideline range of 97 to 120 months. The court then imposed a sentence of 110 months, explaining that it was imposing a sentence in the middle of the guideline range, rather than at the bottom, because of Wilcox’s initial dishonesty and because he had forced D.T. to endure the trauma of a trial. The court also awarded Melissa $5,678.70 in restitution under the Mandatory Victim Restitution Act, 18 U.S.C. § 3663A, for lost wages and the costs of transporting D.T. to healing ceremonies. Wilcox appeals the convictions, the term of imprisonment, and the restitution award. II. Wilcox argues that there was insufficient evidence to convict him. When reviewing this claim, “we view the evidence in the light most favorable to the verdict, and we will overturn a conviction only if no reasonable jury could have concluded that the defendant was guilty beyond a reasonable doubt on each essential element of the charge.” United States v. Kenyon, 397 F.3d 1071, 1076 (8th Cir.2005) (internal quotation omitted). Wilcox was convicted of sexual abuse under 18 U.S.C. §§ 2242 and 2243, both of which require proof that a “sexual act” occurred. The sexual" } ]

[ { "docid": "14884950", "title": "", "text": "to object to the compromise but instead of doing so, Boegner filed a motion asserting that Darling had committed fraud and that any monies which Darling is entitled to receive in this case should be held in a constructive trust for Boegner. The Darlings contend that Boegner agreed to the compromises and that, therefore, he is barred from further litigating the matter. See Boegner’s Motion for Order Requiring Liquidating Agent to pay Claims of and Distributions to William and Ann Darling Into Registry of the Court filed on October 10,1997. As noted, the Motion under consideration is based upon Section 502(j) of the Bankruptcy Code which provides, O') A claim that has been allowed or disallowed may be reconsidered for cause. A reconsidered claim may be allowed or disallowed according to the equities of the case.... Federal Rule of Bankruptcy Procedure 3008 provides, A party in interest may move for reconsideration of an order allowing or disallowing a claim against the estate. The court after hearing on notice shall enter an appropriate order. The bankruptcy court has broad discretion in deciding whether to reconsider a claim. See Matter of Colley, 814 F.2d 1008, 1010 (5th Cir.1987), cert. denied 484 U.S. 898, 108 S.Ct. 234, 98 L.Ed.2d 193 (1987). Although the compromise involved the allowance of the Darlings’ claim, the real issue at hand is not the propriety of reconsidering the allowance of Darlings’ claim under 11 U.S.C. § 502(j). Rather, the matter at hand is the reconsideration of the soundness of this Court’s approval of the compromise. A bankruptcy court may approve a compromise of a debtor’s claim pursuant to Federal Rule of Bankruptcy Procedure 9019(a), but should do so only when the settlement is fair and equitable and in the best interest of the estate. Matter of Foster Mortgage Corp., 68 F.3d 914, 917 (5th Cir.1995). The Eleventh Circuit Court of Appeals has adopted a four-part test which was first articulated in Drexel v. Loomis, 35 F.2d 800, 806 (8th Cir.1929) to determine that a settlement is fair, equitable, and in the interest of the estate and creditors: (a)" } ]

[ { "docid": "13239691", "title": "", "text": "the claimant from making her claim). The documentary evidence that is now available clearly shows that this is not the case. Motion to Reconsider at 1 (Docket Entry 278). Her argument rests on seven documents she attached to her motion. All existed at the time of the trial but none was presented. Applicable Standard for Reconsideration of Disallowed Claim The threshold question is the standard for reconsideration of an order disallowing a claim. Ms. Flanders proceeds under Fed.R.Bankr.P. 3008 which provides that: A party in interest may move for reconsideration of an order allowing or disallowing a claim against the estate. The court after a hearing on notice shall enter an appropriate order. Rule 3008 implements 11 U.S.C. § 502(j) which permits a claim that has been allowed or disallowed to be reconsidered for cause. The statute is explicit that there must be cause for reconsideration. The Advisory Committee Note states that “Reconsideration of a claim that has been previously allowed or disallowed after objection is discretionary with the court.” “Reconsideration under 502(j) is a two-step process. First, a court must decide whether there is ‘cause’ for reconsideration. Then, the court must decide whether the ‘equities of the case’ dictate allowance or disallowance of the claim.” In re Durham, 329 B.R. 899, 903 (Bankr.M.D.Ga.2005) (citing In re Rayborn, 307 B.R. 710, 720 (Bankr.S.D.Ala.2002)). In determining whether cause exists under Bankruptcy Rule 3008, courts look to Fed.R.Bankr.P. 9023 and 9024 which incorporate Fed.R.Civ.P. 59 and 60. See U.S. v. Levoy (In re Levoy), 182 B.R. 827 (9th Cir. BAP 1995); In re Colley, 814 F.2d 1008, 1010 (5th Cir.1987); In re W.F. Hurley Inc., 612 F.2d 392, 396 n. 4 (8th Cir.1980). The burden of showing that there is cause for reconsideration is on the movant. See Cassell v. Shawsville Farm Supply, Inc., 208 B.R. 380, 382 (W.D.Va.1996) (courts “cannot permit reconsideration absent a showing of cause”). United Student Funds, Inc. v. Wylie (In re Wylie), 349 B.R. 204 (9th Cir. BAP 2006) sets out the generally accepted relationship between Rule 3008 and Rules 9023 and 9024. It states: When a" }, { "docid": "15929651", "title": "", "text": "entry of judgment are treated by these courts under' Fed. R.Bankr.P. 9023 (incorporating Fed. R.Civ.P. 59). See, e.g., Ashford v. Consolidated Pioneer Mortgage (In re Consolidated Pioneer Mortgage), 178 B.R. 222, 227 (9th Cir. BAP 1995); Abraham v. Aguilar (In re Aguilar), 861 F.2d 873, 874 (5th Cir.1988). Rule 59 provides that “[a] new trial may be granted ... for any of the reasons for which rehearings have heretofore been granted in suits of equity in the courts of the United States.” After reviewing the significant body of case law devoted to the appropriate standard for cause under § 502(j), the Court must conclude that the issue has become needlessly complicated. Bankruptcy courts have substantial discretion in deciding what constitutes “cause” for reconsidering a claim pursuant to section 502(j). See, e.g., Colley, 814 F.2d at 1010 (“As the Advisory Committee Note to Bankruptcy Rule 3008 evidences, the bankruptcy court’s discretion in deciding whether to reconsider a claim is virtually plenary, as the court may decline to reconsider without a hearing or notice to the parties involved. If reconsideration is granted, the court may readjust the claim in any fashion ‘according to the equities of the case.’ ”). Because of this discretion, the Court is not inclined to adopt a hard and fast rule as to what constitutes “cause” or to make whatever rule it does apply dependent on how or when judgment was entered on the claim. Presumably, if Congress wanted a specific standard to apply, it would have articulated one. Furthermore, § 502(j) and Rule 3008 are unnecessary if Rule 9023 and 9024 were intended to apply mechanically to motions to reconsider claims. In the Court’s opinion, it should instead consider the totality of the eircum- stances to determine whether cause exists under § 502© and whether equity requires the claim to be allowed, disallowed, or otherwise adjusted. Rules 59 and 60 certainly provide significant guidance as to what may constitute cause under § 502©, but they should not, in the Court’s opinion, be applied as rigidly as some cases would suggest. In examining the totality of the circumstances," }, { "docid": "10114486", "title": "", "text": "motion, including some loosely worded pleading by the State, tended to support allowance of that motion. However, upon review, it is now concluded that two factual issues earlier found without dispute thereby allowing the summary judgment were not adequately established in Farley’s favor. A claim, once defeated by judgment, may not be amended. However, since the judgment will be vacated, the State will be given leave to amend its claim. Because it has been so slow in reaching its present pleading posture on the nature and basis of its claim, the current permission to amend is its last chance to do so. JURISDICTION This matter is properly before the Court pursuant to 28 U.S.C. § 157, Local General Rule 2.33(A) of the United States District Court for the Northern District of Illinois, 28 U.S.C. § 1334, and 28 U.S.C. § 1409. This matter constitutes a core proceeding under 28 U.S.C. § 157(b)(2)(A) and § 157(b)(2)(B). DISCUSSION Reconsideration of a Disallowed Claim Bankruptcy Code section 502(j) provides that a disallowed claim may be reconsidered for cause. Once a claim is reconsidered, it may be allowed or disallowed according to the equities of the ease. 11 U.S.C. 502(j). Thus, even where cause exists to reconsider a disallowed claim, the claim still might not be allowed. See In re Mathiason, 16 F.3d 234, 239 (8th Cir.1994). The Federal Rules of Bankruptcy Procedure provide that a motion to reconsider an order disallowing a claim may be made by a party in interest; the court after notice and a hearing shall enter an appropriate order. Fed. R. Bankr.P. 3008. Reconsideration of a claim that was disallowed after objection is discretionary with the court. Fed. R. Bankr.P. 3008, Adv. Comm. Notes. As the Advisory Committee Note to Bankruptcy Rule 3008 evidences, the bankruptcy court’s discretion in deciding whether to reconsider a claim is virtually plenary, as the court may decline to reconsider without a hearing or notice to the parties involved. If reconsideration is granted, the court may readjust the claim in any fashion “according to the equities of the case.” Matter of Colley, 814 F.2d" }, { "docid": "2989158", "title": "", "text": "Yacht and Tennis, Inc. v. Wasserman (In re International Yacht and Tennis, Inc.), 922 F.2d 659 (11th Cir.1991); Immenhausen, 166 B.R. at 451. As such, § 502(j) creates “a narrow exception to the otherwise unwavering bar which section 1327(a) places upon re-litigation of claim allowance after confirmation.” Bernard, 189 B.R. at 1021. The Creditors argue that § 502(j) cannot destroy the bar created by § 1327(a) and § 502(a). However, as many courts have recognized, an absolute bar to objections filed after confirmation of a chapter 13 plan would do the exact opposite and simply ignore the plain language of § 502(j). The fact that § 502(j) is found in the same section as § 502(a) clearly indicates an intention by Congress to make § 502(j) an exception to the general rule. In fact, the advisory committee note to Federal Rule of Bankruptcy Procedure 3008 states that “(a) proof of claim executed and filed in accordance with the rules in this Part II is prima facie evidence of the validity and the amount of the claim notwithstanding a motion for reconsideration of an order of allowance.” Therefore, § 502(j) does allow reconsideration of the amount of claims allowed at confirmation hearing if the debtor can establish sufficient cause. Cause To Reconsider Claims. The meaning of the phrase “for cause” is not clearly defined in the Bankruptcy Code. Lee, 189 B.R. at 695. Séveral courts have equated a § 5020) motion for reconsideration with a motion for relief from judgment under Federal Rule of Bankruptcy Procedure 9024. As such, these courts have held that the movant may only seek reconsideration based on the Rule 60(b) standards. See Colley v. National Bank of Texas (Matter of Colley), 814 F.2d 1008 (5th Cir.1987); United States v. Motor Freight Express (In re Motor Freight Express), 91 B.R. 705, 711 (Bankr.E.D.Pa.1988). Under Federal Rule of Civil Procedure 60(b), the court may provide relief from judgment based on such things as mistake, newly discovered evidence, fraud, a void or satisfied judgment or any other similar reason justifying relief. Fed. R.CivP. 60(b). However, the cases which held" }, { "docid": "12711447", "title": "", "text": "Republic objected to the proposed sale and, on November 29, 2000, filed the instant cross-motion with this court. Prior to the hearing date, the proposed sale fell through. Mr. Bernardes withdrew his motion on January 26, 2001 and currently has no plans to sell the subject realty. DISCUSSION 1. Reconsideration of Old Republic’s Claim Old Republic asks this court to reconsider its claim under 11 U.S.C. § 502(j) and to reclassify it as secured. Seeking to extend the reasoning of Dewsnup v. Timm, 502 U.S. 410, 112 S.Ct. 773, 116 L.Ed.2d 903 (1992), Old Republic ar gues that the creditors, and not Mr. Ber-nardes, are entitled to benefit from the increased equity in the subject realty. The court’s authority to reconsider an allowed claim is found in 11 U.S.C. § 502(j). In relevant part, § 502(j) provides: “A claim that has been allowed or disallowed may be reconsidered for cause. A reconsidered claim may be allowed according to the equities of the case.” 11 U.S.C. § 502(j). § 502(j) is supplemented by Federal Rule of Bankruptcy Procedure 3008, which states: “A party in interest may move for reconsideration of an order allowing or disallowing a claim against the estate. The court after a hearing on notice shall enter an appropriate order.” Fed. R. BanKR.P. 3008. The phrase “for cause,” as it is used in § 502(j), is not specifically defined in either the Bankruptcy Code or the Rules, “but is an adaptable standard reflecting bankruptcy laws’ roots in equity jurisprudence.” See Advisory Committee’s Notes to Fed. R. Bankr.P. 3008. Thus, the bankruptcy court possesses broad discretion in determining whether adequate cause exists for the reconsideration of claims. See In re Southwest Florida Telecommunications, Inc., 234 B.R. 137, 141 (Bankr.M.D.Fla.1998); In re Lomas Financial Corp., 212 B.R. 46, 52. (Bankr.D.Del.1997). In this motion, Old Republic argues that the dramatic increase in the subject realty’s value constitutes sufficient cause to compel the court to reconsider its claim under § 502(j) and Rule 3008 and to reclassify it as secured. Old Republic submits Mr. Bernardes’ July 2000 proposed contract of sale, which sets" }, { "docid": "10114487", "title": "", "text": "Once a claim is reconsidered, it may be allowed or disallowed according to the equities of the ease. 11 U.S.C. 502(j). Thus, even where cause exists to reconsider a disallowed claim, the claim still might not be allowed. See In re Mathiason, 16 F.3d 234, 239 (8th Cir.1994). The Federal Rules of Bankruptcy Procedure provide that a motion to reconsider an order disallowing a claim may be made by a party in interest; the court after notice and a hearing shall enter an appropriate order. Fed. R. Bankr.P. 3008. Reconsideration of a claim that was disallowed after objection is discretionary with the court. Fed. R. Bankr.P. 3008, Adv. Comm. Notes. As the Advisory Committee Note to Bankruptcy Rule 3008 evidences, the bankruptcy court’s discretion in deciding whether to reconsider a claim is virtually plenary, as the court may decline to reconsider without a hearing or notice to the parties involved. If reconsideration is granted, the court may readjust the claim in any fashion “according to the equities of the case.” Matter of Colley, 814 F.2d 1008, 1010, reh’g denied, 818 F.2d 443 (5th Cir.1987). The Code does not define “cause” for reconsideration of a claim, nor do the Bankruptcy Rules. Olson v. United States, 162 B.R. 831, 833 (D.Neb.1993); 4 Collier on Bankruptcy, 15th ed. Revised, 502.11[5]. It would certainly seem that cause for reconsideration would be the discovery, subsequent to prior allowance, of new facts or evidence to support facts that could not have been discovered at an earlier stage, or the discovery of clear errors in the order of allowance. But such grounds should be stated in the moving papers with some detail. The exact nature of an alleged error should be set forth, and if new evidence has been discovered it ought be explained why such evidence was not able, with due diligence, to have been discovered earlier. Indeed, it is not altogether clear that the discovery of errors in the order of allowance would be the appropriate “cause,” for in matters of reconsideration there is always tension with the right of an appeal from an erroneous" }, { "docid": "10114508", "title": "", "text": "as to two factual issues. Moreover, reconsideration is warranted in the exercise of discretion under 11 U.S.C. § 502(j) and Fed. R. Bankr.P. 3008. Accordingly, by separate order, Ohio’s Motion for Reconsideration and New Trial of Claim No. 509 and for Leave to Amend Claim No. 509 is allowed, the judgment heretofore entered on that claim is vacated, and permission will be given to the State to file its amended claim within a limited time. In light of the State’s convoluted pleading history herein over the years, this chance will be its last. . No motion has been made by either Debtor or the State to reopen the bankruptcy case pursuant to Fed. R. Bankr.P. 5010. See also 11 U.S.C. § 350(b). . The facts of this proceeding have been described in detail in In re Farley, Inc., 203 B.R. 681 (Bankr.N.D.Ill.1997), and are not repeated here except as necessary for clarity. . Fed. R. Bankr.P. 9023 provides that Fed. R.Civ.P. 59 applies in adversary proceedings except as provided in Fed. R. Bankr.P. 3008. At least one court has interpreted this to mean Fed.R.Civ.P. 59 does not apply to motions to reconsider orders allowing or disallowing claims. In re Excello Press, Inc., 83 B.R. 539, 540, 541 (Bankr.N.D.Ill.1988). If this were so, the State would be unable to allege errors of law as grounds for cause to reconsider. However, other courts disagree and find that bankruptcy courts have the ability to correct errors of law through a motion to reconsider an order allowing or disallowing a claim. In re Motor Freight Exp., 91 B.R. 705, 710 (Bankr.E.D.Pa.1988) (stating that the only practical effect of Rule 9023 is to eliminate the 10-day filing period). Rule 9023 does not state that Rule 59 does not apply to such motions, only that the rule \"applies in cases under the Code, except as provided, in Rule 3008.” Fed. R. Bankr.P. 9023 (emphasis added). Rule 3008 states \"a party in interest may move for reconsideration of an order allowing or disallowing a claim against the estate. The court after a hearing on notice shall enter" }, { "docid": "15929650", "title": "", "text": "factors. Several courts have applied Rule 60(b) only in cases where the claim was allowed or disallowed after contested litigation. See, e.g., Colley v. National Bank of Texas (Matter of Colley), 814 F.2d 1008, 1010 (5th Cir.1987); In re Gomez, 250 B.R. 397, 400-401 (Bankr.M.D.Fla.1999). As explained in Gomez: In cases where a proof of claim was not actually litigated but instead was deemed allowed by the confirmation order without objection, courts have instead articulated a different standard to establish cause for reconsideration under § 502(j). These courts have weighed several factors to determine if sufficient cause was shown [including] (1) the extent and reasonableness of the delay, (2) the prejudice to any party in interest, (3) the effect on efficient court administration, and (4) the moving party’s good faith. Gomez, 250 B.R. at 401. Still other courts apply the Rule 60(b) standard only if the § 502(j) motion to reconsider was filed more than 10 days after the judgment allowing or disallowing the claim was entered. Motions filed less than 10 days after the entry of judgment are treated by these courts under' Fed. R.Bankr.P. 9023 (incorporating Fed. R.Civ.P. 59). See, e.g., Ashford v. Consolidated Pioneer Mortgage (In re Consolidated Pioneer Mortgage), 178 B.R. 222, 227 (9th Cir. BAP 1995); Abraham v. Aguilar (In re Aguilar), 861 F.2d 873, 874 (5th Cir.1988). Rule 59 provides that “[a] new trial may be granted ... for any of the reasons for which rehearings have heretofore been granted in suits of equity in the courts of the United States.” After reviewing the significant body of case law devoted to the appropriate standard for cause under § 502(j), the Court must conclude that the issue has become needlessly complicated. Bankruptcy courts have substantial discretion in deciding what constitutes “cause” for reconsidering a claim pursuant to section 502(j). See, e.g., Colley, 814 F.2d at 1010 (“As the Advisory Committee Note to Bankruptcy Rule 3008 evidences, the bankruptcy court’s discretion in deciding whether to reconsider a claim is virtually plenary, as the court may decline to reconsider without a hearing or notice to the parties" }, { "docid": "12720543", "title": "", "text": "disallowing a claim against the estate.” “Section 502(j) and Bankruptcy Rule 3008 grant the bankruptcy court the power to reconsider for cause secured claims that previously have been allowed.” In re International Yacht and Tennis, Inc., 922 F.2d 659, 662 (11th Cir.1991). As one court has recognized, however, “[njeither the Bankruptcy Code nor the Bankruptcy Rules define the meaning of ‘cause’ as used in § 502(j).” In re Jones, 2000 WL 33673759, at *2 (Bankr.M.D.N.C.2000); In re Coffman, 271 B.R. 492, 498 (Bankr.N.D.Tex.2002). Reconsideration under § 502(j) is a two-step process. A court must first decide whether “cause” for reconsideration has been shown. Jones, 2000 WL 33673759 *2. Then, the Court decides whether the “equities of the case” dictate allowance or disallowance of the claim. Id.; 11 U.S.C. § 502(j). “Bankruptcy courts have substantial discretion in deciding what constitutes ‘cause’ for reeonsider- ing a claim pursuant to section 502(j).” Coffman, 271 B.R. at 498 (citations omitted); In re Davis, 237 B.R. 177, 181-82 (M.D.Ala.1999). Although “the ‘for cause’ standard ‘is not standardless,’ ” id. (quoting In re Davis, 237 B.R. at 182), there “is considerable variation in the cases concerning the test or standard which should be used.” Jones, 2000 WL 33673759, at *2. Some courts look to when the motion to reconsider was filed in order to determine what standards to use to determine “cause.” These courts generally say that if the motion is filed within ten days, the motion should be governed by Bankruptcy Rule 9023 and Federal Rule of Civil Procedure 59. See, e.g., Jones, 2000 WL 33673759, at *2, n. 1 (citing cases). Other courts hold that where the motion is file outside of ten days, Bankruptcy Rule 9024 and Federal Rule of Civil Procedure 60(b)(1) should govern what is “cause.” Id. Still other courts “[without relying solely upon the timing of the motion for reconsideration ... have debated whether the ‘for cause’ standard under § 502(j) is different from the ‘excusable neglect’ standard of Rule 60(b)(1) and have reached differing conclusions.” Id. In addition, some courts focus on how the claim was initially resolved in" }, { "docid": "12720542", "title": "", "text": "truck and buying more vehicles without bankruptcy court permission have on FMCC’s position? 5. Assuming that “cause” has been shown for reconsideration of the Court’s prior order, what remedy, if any, in terms of FMCC’s claim treatment, is appropriate under the circumstances of this case? As the party moving for reconsideration, FMCC bears the burden of proving that reconsideration is appropriate. In re Jones, 2000 WL 33673759, at *2 (Bankr.M.D.N.C.2000). Specifically, FMCC must show “cause” for reconsideration; otherwise, FMCC’s motion to reconsider should not be granted. Id. (citations omitted). The Court will address the above issues in discussing whether FMCC has shown “cause” for reconsideration and in discussing the “equities of the case.” LAW 11 U.S.C. § 502(j) is the starting point. Section 502(j) states in pertinent part that “[a] claim that has been allowed or disallowed may be reconsidered for cause. A reconsidered claim may be allowed or disallowed according to the equities of the case.” Bankruptcy Rule 3008 states that “[a] party in interest may move for reconsideration of an order allowing or disallowing a claim against the estate.” “Section 502(j) and Bankruptcy Rule 3008 grant the bankruptcy court the power to reconsider for cause secured claims that previously have been allowed.” In re International Yacht and Tennis, Inc., 922 F.2d 659, 662 (11th Cir.1991). As one court has recognized, however, “[njeither the Bankruptcy Code nor the Bankruptcy Rules define the meaning of ‘cause’ as used in § 502(j).” In re Jones, 2000 WL 33673759, at *2 (Bankr.M.D.N.C.2000); In re Coffman, 271 B.R. 492, 498 (Bankr.N.D.Tex.2002). Reconsideration under § 502(j) is a two-step process. A court must first decide whether “cause” for reconsideration has been shown. Jones, 2000 WL 33673759 *2. Then, the Court decides whether the “equities of the case” dictate allowance or disallowance of the claim. Id.; 11 U.S.C. § 502(j). “Bankruptcy courts have substantial discretion in deciding what constitutes ‘cause’ for reeonsider- ing a claim pursuant to section 502(j).” Coffman, 271 B.R. at 498 (citations omitted); In re Davis, 237 B.R. 177, 181-82 (M.D.Ala.1999). Although “the ‘for cause’ standard ‘is not standardless,’ ” id. (quoting" }, { "docid": "12711448", "title": "", "text": "Bankruptcy Procedure 3008, which states: “A party in interest may move for reconsideration of an order allowing or disallowing a claim against the estate. The court after a hearing on notice shall enter an appropriate order.” Fed. R. BanKR.P. 3008. The phrase “for cause,” as it is used in § 502(j), is not specifically defined in either the Bankruptcy Code or the Rules, “but is an adaptable standard reflecting bankruptcy laws’ roots in equity jurisprudence.” See Advisory Committee’s Notes to Fed. R. Bankr.P. 3008. Thus, the bankruptcy court possesses broad discretion in determining whether adequate cause exists for the reconsideration of claims. See In re Southwest Florida Telecommunications, Inc., 234 B.R. 137, 141 (Bankr.M.D.Fla.1998); In re Lomas Financial Corp., 212 B.R. 46, 52. (Bankr.D.Del.1997). In this motion, Old Republic argues that the dramatic increase in the subject realty’s value constitutes sufficient cause to compel the court to reconsider its claim under § 502(j) and Rule 3008 and to reclassify it as secured. Old Republic submits Mr. Bernardes’ July 2000 proposed contract of sale, which sets forth a purchase price of $202,500.00, as evidence of the subject realty’s appreciation. In response, Mr. Bernardes contends that, under § 1327(a) and in light of the Third Circuit decision In re Szostek, 886 F.2d 1405 (3d. Cir.1989), a confirmed plan is res judicata with respect to the status of discharged liens. Without deciding whether § 502(j) contemplates the reconsideration of claims after confirmation, the court concludes that there is no sound basis for reconsideration in this case. § 506(a) of the Bankruptcy Code provides that a creditor has a secured claim to the extent of the value of the underlying collateral. See 11 U.S.C. § 506(a). The statute further provides that the value of such collateral must be determined “in light of the purpose of the valuation and of the proposed disposition or use of such property.” Id. When considering the proper valuation date for establishing the amount of a creditor’s secured claim under a Chapter 13 plan, courts have looked to the language of § 1325(a), the Code section addressing the requirements for" }, { "docid": "10114509", "title": "", "text": "least one court has interpreted this to mean Fed.R.Civ.P. 59 does not apply to motions to reconsider orders allowing or disallowing claims. In re Excello Press, Inc., 83 B.R. 539, 540, 541 (Bankr.N.D.Ill.1988). If this were so, the State would be unable to allege errors of law as grounds for cause to reconsider. However, other courts disagree and find that bankruptcy courts have the ability to correct errors of law through a motion to reconsider an order allowing or disallowing a claim. In re Motor Freight Exp., 91 B.R. 705, 710 (Bankr.E.D.Pa.1988) (stating that the only practical effect of Rule 9023 is to eliminate the 10-day filing period). Rule 9023 does not state that Rule 59 does not apply to such motions, only that the rule \"applies in cases under the Code, except as provided, in Rule 3008.” Fed. R. Bankr.P. 9023 (emphasis added). Rule 3008 states \"a party in interest may move for reconsideration of an order allowing or disallowing a claim against the estate. The court after a hearing on notice shall enter an appropriate order.” There is no conflict with Fed. R. Bankr.P. 9023. The standards for reconsideration under Fed. R. Bankr.P. 9023 can be used to show cause under 11 U.S.C. 502(j) and Fed. R. Bankr.P. 3008. . Prior to entry of the summary judgment, the State never requested leave to amend its proof of claim to include a basis of recovery under § 4123.75. Because the parties argued and briefed the applicability of § 4123.75, and the prior ruling was based upon that section, it was treated in the earlier opinion as if an informal amendment had been filed pursuant to Fed. R.Civ.P. 15(b) (applicable herein pursuant to Fed. R. Bankr.P. 7015.)" }, { "docid": "4776092", "title": "", "text": "reconsideration pursuant to 28 U.S.C. § 158(d). See In re W.F. Hurley, Inc., 612 F.2d 392 (8th Cir.1980). We review the bankruptcy court’s ruling on the motion to reconsider under the abuse of discretion standard. Id. The bankruptcy court has power to reconsider the allowance or disallowance of proofs of claim \"for cause”. 11 U.S.C. § 502(j); Bankruptcy Rule 3008. As the Advisory Committee Note to Bankruptcy Rule 3008 evidences, the bankruptcy court’s discretion in deciding whether to reconsider a claim is virtually plenary, as the court may decline to reconsider without a hearing or notice to the parties involved. If reconsideration is granted, the court may readjust the claim in any fashion “according to the equities of the case.” 11 U.S.C. § 502®. The court’s broad discretion should not, however, encourage parties to avoid the usual rules for finality of contested matters. Bankruptcy Rule 9024 incorporates Federal Rule of Civil Procedure 60 into all matters governed by the Bankruptcy Rules except, inter alia, “the reconsideration of an order allowing or disallowing a claim against the estate entered without a contest is not subject to the one year limitation prescribed in Rule 60(b)_” We interpret Rule 9024 to provide that, when a proof of claim has in fact been litigated between parties to a bankruptcy proceeding, the litigants must seek reconsideration of the bankruptcy court’s determination pursuant to the usual Rule 60 standards if they elect not to pursue a timely appeal of the original order allowing or disallowing ■the claim. The elaboration of Section 502(j)'s requirement of “cause” for reconsideration by the Rule 60 criteria substantially eliminates the “tension with the right of an appeal from an erroneous final order.” 3 Collier on Bankruptcy (15th ed.) 11502.10 at 502-107. See also In re W.F. Hurley, Inc., supra. In this case, whether the bankruptcy court applied the test embodied in Rule 60(b) in ruling on reconsideration of appel-lees’ claims is not clear. It is obvious that Colley did not feel himself so bound and his “Motions for Reconsideration”, as noted, are almost entirely a rehash of his original objections to" }, { "docid": "6582765", "title": "", "text": "the Debtor by Program. Subsequently, Program filed an order Denying Motion for Reconsideration of Order Disallowing Administrative Claims and for Order Vacating Findings of Fact. Program’s order was entered on June 9, 1988 and this appeal followed. ISSUE PRESENTED Whether the bankruptcy court erred in denying Program’s Motion for Reconsideration. STANDARD OF REVIEW Whether the bankruptcy court erred in denying Program’s Motion for Reconsideration is reviewed under the abuse of discretion standard. In re Colley, 814 F.2d 1008 (5th Cir.1987); In re W.F. Hurley, Inc., 612 F.2d 392 (8th Cir.1980). DISCUSSION Reconsideration of the disallowance of Program’s claim is governed by Bankruptcy Rule 3008 and by 11 U.S.C. § 502(j) of the Bankruptcy Code. Rule 3008 provides that “a party in interest may move for reconsideration of an order allowing or disallowing a claim against the estate. The court after a hearing on notice shall enter an appropriate order.” B.R. 3008. According to § 502(j), “a claim that has been allowed or disallowed may be reconsidered for cause.” 11 U.S.C. § 502(j) (1989). In this case, the Motion to Reconsider was filed after the time to appeal had expired. In the situation where the time for appeal has expired, a motion to reconsider should be treated as a motion for relief from judgment under Bankruptcy Rule 9024. In re Aguilar, 861 F.2d 873 (5th Cir.1988). Bankruptcy Rule 9024 provides that Rule 60 of the Fed.R.Civ.P. applies in cases under the Code. Rule 60 sets forth the standards for reconsideration of claims and helps define “cause” under § 502(j). Rule 60 provides that there may be relief from a judgment or order for: (1) Mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rules 59(b); (3) fraud (whether heretofore denominated intrinsic or extrinsic) misrepresentation, or other misconduct of an adverse party; (4) the judgment is void; (5) the judgment has been satisfied, released, or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it" }, { "docid": "8330362", "title": "", "text": "a party appeal a bankruptcy order and then, unsatisfied with the appellate court’s ruling, go back to the bankruptcy court and ask it to reconsider the order? And, if so, may that party then appeal the bankruptcy court’s denial of the motion for reconsideration? Bankruptcy Rule 3008 provides that “A party in interest may move for reconsideration of an order allowing or disallowing a claim against the estate. The court after a hearing on notice shall enter an appropriate order.” Title 11 U.S.C. Section 502(j) similarly provides: “A claim that has been allowed or disallowed may be reconsidered for cause. A reconsidered claim may be allowed or disallowed according to the equities of the case.... ” Section 502(j) has been construed to require that a motion for reconsideration must be filed before a case is closed. In Re Resources Reclamation Corp. of America, 34 B.R. 771 (9th Cir. BAP 1983). Rule 3008 has even broader time allowances for filing a motion for reconsideration. The Advisory Committee Notes to Bankruptcy Rule 3008 state: The rule expands § 502(j) which provides for reconsideration of an allowance only before the case is closed.... If a case is reopened as provided in § 350(b) of the Code, reconsideration of the allowance or disallowance of a claim may be sought and granted in accordance with this rule. Thus, the Bankruptcy Rules provide no clear deadline by which time a motion for reconsideration must be filed. In this case, when WJC moved the Bankruptcy Court to reconsider its order dismissing WJC’s claim, the case was still open. The Bankruptcy judge did not consider the timeliness or procedural appropriateness of WJC’s motion to reconsider. The Bankruptcy Rules do not explicitly prohibit filing of a motion for reconsideration after the order sought to be reconsidered has already been appealed. Nonetheless, it is implicitly obvious that such a practice would make a mockery of final judgments. Any party unsatisfied with an order could not only appeal the order, but then, if dissatisfied with the appeal, could move the bankruptcy court to reconsider the order; and, finally, if the bankruptcy" }, { "docid": "18370189", "title": "", "text": "Chapter 13 Bankruptcy at 267-3; see 8 Collier on Bankruptcy ¶ 1329.04[3] (stating that \"[s]ources of outside payment include ... disposition of collateral”); In re Knappen, 281 B.R. at 717 (allowing amendment and citing §§ 1329(a)(1) and (a)(3)). . In re Adkins, 425 F.3d at 304. . Fed. R. Bankr.P. 3008. It provides: \"A party in interest may move for reconsideration of an order allowing or disallowing a claim against the estate. The court after a hearing on notice shall enter an appropriate order.” References in the text to the Federal Rules of Bankruptcy Procedure shall be to the Bankruptcy Rule number. . Several courts have held that when the motion is filed within 10 days of the order allowing or denying the claim, the standard of Bankruptcy Rule 9023, which incorporates Fed.R.Civ.P. 59, will apply, but, as to motions filed outside the 10 days, the standards of Bankruptcy Rule 9024, which incorporates Fed.R.Civ.P. 60, will control. Bruce H. White and Maria H. Belfield, What Standards Govern Motions to Reconsider Orders Allowing or Disallowing Claims? 17 Am. Bankr.Inst. J. 22 (June 1998). . 4 Collier on Bankruptcy ¶ 502.11 [5] (citing 1983 Advisory Committee Note to Fed R. Bankr.P. 3008). . Haggart Group v. Frontier Airlines, Inc. (In re Frontier Airlines, Inc.), 137 B.R. 808, 810 (D.Colo.1992). . Fed.R.Civ.P. 60(b)(5). Rule 60(b) provides relevant part as follows: On motion and upon such terms as are just, the court may relieve a party ... from a final judgment, order, or proceeding for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(b); (3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party; (4) the judgment is void; (5) the judgment has been satisfied, released, or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application; or (6) any other reason justifying relief" }, { "docid": "12720561", "title": "", "text": "2001, $391.19 on September 17, 2001 and $408.77 on October 16, 2001. . FMCC Exhibit 8 was introduced at the February 27, 2002 hearing. This exhibit — which appears to have been prepared on June 23, 1998 — is a copy of an internal FMCC Bankruptcy Review Report on the Rayborn account. It shows, among other things, that the matter was “assigned to Bill Howell” on June 24, 1998. . FMCC’s motion to reconsider the Court's January 10, 2002 order was filed over 10 days later on January 22, 2002. There is no time limit in Bankruptcy Rule 3008 governing when a motion to reconsider an order allowing or disallowing a claim must be filed. See Fed. R. Bankr.P. 3008. Rule 9023 says that Federal Rule of Civil Procedure 59' — which continues a 10-day limit for filing motions to vacate judgments — governs in cases under the Code \"except as provided in Rule 3008.\" The Advisory Committee Notes to Rule 9023 clearly say that Rule 3008 does not contain a 10 day time limit like Federal Rule of Civil Procedure 59. Moreover, it has been held that a claim may be reconsidered for \"cause” even after confirmation. In re Zieder, 263 B.R. 114, 117 (Bankr.D.Ariz.2001) (citing In re International Yacht & Tennis Inc., 922 F.2d 659, 662 n. 5 (11th Cir.1991)) (other citation omitted). And, debtors do not argue that FMCC's motion is untimely. Furthermore, assuming Rule 9006(f) applies, FMCC had until January 23 to file the motion even if Rule 3008 did have a 10-day limit, which it does not. Thus, there is no issue concerning the timeliness of FMCC's motion. . The Fifth Circuit has “likened the 'cause’ standard found in section 502(j) with the substantive requirements of Bankruptcy Rule 9024 and Rule 60(b) of the Federal Rules of Civil Procedure.” Coffman, 271 B.R. at 498 (citing In re Colley, 814 F.2d 1008, 1010-11 (5th Cir.1987)). The Eleventh Circuit appears to endorse the approach taken by the Fifth Circuit in Colley. See International Yacht & Tennis, 922 F.2d at 662 (citing Colley). .It has been held that" }, { "docid": "22864555", "title": "", "text": "that the Ashfords failed to present adequate evidence that a sales contract existed, that their payments were for the purchase of property, or that they had a security interest in the property. Thus, the decision of the bankruptcy court to disallow the Ashfords’ claim in full was not clearly erroneous. C. Reconsideration of Disallowance of Claim Section 502(j) provides in pertinent part, that, “[a] claim that has been allowed or disallowed may be reconsidered for cause. A reconsidered claim may be allowed or disallowed according to the equities of the case.” Rule 3008 states that “[a] party in interest may move for reconsideration of an order allowing or disallowing a claim against the estate. The court after a hearing on notice shall enter an appropriate order.” Several courts have looked to Fed.R.Civ.P. 60(b) for the standards for reconsideration of claims and the definition of “cause” under § 502(j). In re Colley, 814 F.2d 1008, 1010, reh’g denied, 818 F.2d 443 (5th Cir.), cert. denied, 484 U.S. 898, 108 S.Ct. 234, 98 L.Ed.2d 193 (1987); In re W.F. Hurley, Inc., 612 F.2d 392, 396 n. 4 (8th Cir.1980); Cleanmaster, 106 B.R. at 630; In re Resources Reclamation Corp. of America, 34 B.R. 771, 773 (9th Cir. BAP 1983). The Fifth Circuit Court of Appeals has held that where a Rule 3008 motion is filed within the ten day period to appeal, the applicable standards for reconsideration and definition of “cause” under § 502(j) must be found in Rule 59(a). In re Aguilar, 861 F.2d 873, 874 (5th Cir.1988). Fed.R.Civ.P. 59(a)(2) provides that the court may open the judgment, take additional testimony, amend or make new findings of fact and conclusions of law, and direct the entry of a new judgment for any of the reasons for which rehearings have been granted in suits in equity. Here, the Ashfords argued that they did not have an opportunity to address the issue of whether they tendered the $20,000 down payment to convert the lease to a sales contract, and further raised objection to PLC being allowed to file an objection to the Ashfords’" }, { "docid": "10301899", "title": "", "text": "in original). As discussed above, section 1329 does not allow a debtor to retroactively reclassify the status when the confirmed plan provided for treatment of the claim. The Debtors are not allowed to modify their Chapter 13 plan in order to strip Chase’s lien post-confirmation in accordance with section 1329. Assuming arguendo, that the Debtors’ Plan Modification could be interpreted as a Motion to Reconsider Chase’s claim, the Court finds that “cause” does not exist under section 502(j) to reconsider Chase’s claim. Section 502(j) provides that “a claim that has been allowed or disallowed may be reconsidered for cause.” 11 U.S.C. § 502(j). Section 502 also provides that “a reconsidered claim may be allowed or disallowed based on the equities of the case.” Id. Courts have held that a reconsideration of a claim “according to the equities of the case,” is not an unlimited license to alter allowed claims. See Warren, 499 B.R. at 919. Before a court can reach the question of equity under section 502(j), it must first determine whether “cause exists.” Warren, 499 B.R. at 918-19 (citing In re Jones, 2000 WL 33673759, at *2 (Bankr.M.D.N.C. Aug. 28, 2000); In re Clark, 172 B.R. 701, 704-05 (Bankr.S.D.Ga.1994); In re Durham, 329 B.R. 899, 903 (Bankr.M.D.Ga.2005)). “Cause” is not expressly defined in the Bankruptcy Code, and courts have substantial discretion in deciding what constitutes “cause” when deciding whether to grant a motion for reconsideration under section 502(j). Warren, 499 B.R. at 919 (citing In re Gomez, 250 B.R. 397, 400-01 (Bankr.M.D.Fla. 1999)). This Court has set forth the following factors to determine if “cause” exists under section 502(j): (1) whether granting review will prejudice the debtor or other creditors; (2) the length of delay and its impact on efficient court administration; (3) whether the delay was beyond the reasonable control of the person whose duty it was to perform; (4) the presence of good faith; (5) whether clients should be penalized for their counsel’s mistake or neglect; (6) whether the claimant has a meritorious claim. In re Bernard, 189 B.R. 1017 (Bankr.N.D.Ga.1996) (Drake, J.). In considering the factors," }, { "docid": "18890203", "title": "", "text": "to Original Claim ¶ 2. Charles argues that the reservation of rights empowers him to amend his claim at any time. Such language, however, cannot sanction amendments absent compliance with the test set out in Part II. .Section 157(b)(5) provides: The district court shall order that personal injury tort and wrongful death claims shall be tried in the district court in which the bankruptcy case is pending, or in the district court in the district in which the claim arose, as determined by the district court in which the bankruptcy case is pending. 28 U.S.C.A. § 157(b)(5). . Since Charles needs leave of court to amend and the Trust objects to Charles' motion to lift the stay on the ground that the amendment is improper, Charles' motion is deemed to include a request to amend the Original Claim. . Had the Court entered an order allowing Charles’ Original Claim, section 502(j) of the Code and Rule 3008 of the Federal Rules of Bankruptcy Procedure would govern the question of whether to allow a subsequent amendment. Section 502(j) provides in pertinent part: A claim that has been allowed or disallowed may be reconsidered for cause. A reconsidered claim may be allowed or disallowed according to the equities of the case. 11 U.S.C.A. § 502© (1990). Rule 3008 provides for reconsideration of claims: A party in interest may move for reconsideration of an order allowing or disallowing a claim against the estate. The court after a hearing on notice shall enter an appropriate order. Fed.R.Bankr.P. 3008. Although at first blush Section 502© appears to govern changes to any allowed claim, Rule 3008 makes clear that the \"for cause” standard of section 502© only applies where there has been a court order allowing the claim. See Camp v. Carson (In re Government Securities Corp.), 95 B.R. 829, 833 (S.D.Fla.1988) (section 502© applies only to \"reconsideration of an order\" allowing or disallowing a claim) (emphasis in original). This reading is consistent with section 502(a) which deems all claims allowed until objected to. Moreover, to hold that a claim cannot be amended unless the amendment" } ]

[ { "docid": "5456807", "title": "", "text": "meet ‘the burden of showing that any given requirement [has] ... a manifest relationship to the employment in question.’ ” Dothard, 433 U.S. at 329, 97 S.Ct. at 1851 (quoting Griggs v. Duke Power Co., 401 U.S. at 432, 91 S.Ct. at 854). “The touchstone is business necessity. If an employment practice which operates to exclude Negroes cannot be shown to be related to job performance, the practice is prohibited.” Griggs, 401 U.S. at 431, 91 S.Ct. at 853. Accord, United States v. Lee Way, 625 F.2d at 941; Spurlock, 475 F.2d at 218 (“[P]re-employment qualifications which result in discrimination may be valid if they are shown to be job-related.”) The term “necessity” connotes that the exclusionary practice must be shown to be of great importance to job performance to rebut a prima facie case. Accord, United States v. Bethlehem Steel Corp., 446 F.2d 652, 662 (2d Cir. 1971). A showing of “mere rationality” is not adequate. Jones v. Lee Way Motor Freight, Inc., 431 F.2d 245, 249 (10th Cir.), cert. denied, 401 U.S. 954, 91 S.Ct. 972, 28 L.Ed.2d 237 (1970). Nor is it sufficient that “legitimate management functions” are served by the employment practice. See Muller, 509 F.2d at 928. “[T]he business purpose must be sufficiently compelling to override any racial impact; the challenged practice must effectively carry out the business purpose it is alleged to serve; and there must be available no acceptable alternative policies or practices which would better accomplish the business purpose advanced, or accomplish it equally well with a lesser differential racial impact.” Robinson v. Lorillard Corp., 444 F.2d 791, 798 (4th Cir.) (footnotes omitted), cert. denied, 404 U.S. 1006, 92 S.Ct. 573, 30 L.Ed.2d 655 (1971). Williams contends the district court failed to apply these standards for discriminatory impact cases in dismissing the class action. We agree. Instead, it appears the court applied the standards for evaluating “disparate treatment” claims set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), and Furnco Construction Corp. v. Waters, 438 U.S. 567, 98 S.Ct. 2943, 57 L.Ed.2d 957" } ]

[ { "docid": "2777092", "title": "", "text": "housed with nonwhite female cannery workers, just as white and nonwhite male cannery workers were housed together. . The district court also used impact analysis to test an English language requirement and in an alternate holding in favor of defendants on the housing and messing claims. The language requirement finding is not challenged on this appeal, and for reasons discussed infra we will not review the court's impact discussion regarding housing and messing claims. . Moreover, we agree with the district court. Principled institutional decision-making requires that we adhere to Heagney, the first in line. We believe the other panels acted improperly in ignoring Heagney. It is the law of this circuit by which we are bound until overruled by appropriate en banc proceedings. . See Helfand & Pemberton, The Continuing Vitality of Title VII Disparate Impact Analysis, 36 Mercer 939, 944-954 (1985). . In addition to the conflict within this court, the circuit courts of appeals are split on the applicability of disparate impact analysis to subjective employee selection practices. Those which have applied impact analysis are the Fifth, Sixth, Tenth, Eleventh and D.C. Circuits. See Rowe v. General Motors Corp., 457 F.2d 348 (5th Cir.1972); Rowe v. Cleveland Pneumatic Co., Numerical Control, Inc., 690 F.2d 88 (6th Cir.1982); Lasso v. Woodmen of World Life Ins. Co., Inc., 741 F.2d 1241 (10th Cir.1984); Williams v. Colorado Springs School Dist., 641 F.2d 835 (10th Cir.1981); Griffin v. Carlin, 755 F.2d 1516 (11th Cir.1985); Segar v. Smith, 738 F.2d 1249 (D.C.Cir.1984). Those circuits which have said they will only apply impact analysis to specified objective employee selection practices include the Fourth, Fifth, Eighth, and Tenth Circuits. See EEOC v. Federal Reserve Bank, 698 F.2d 633 (4th Cir.1983); Pope v. City of Hickory, 679 F.2d 20 (4th Cir.1982); Vuyanich v. Republic Nat'l Bank, 723 F.2d 1195 (5th Cir.1984); Carroll v. Sears, Roebuck & Co., 708 F.2d 183 (5th Cir.1983); Carpenter v. Stephen F. Austin State Univ., 706 F.2d 608 (5th Cir.1983); Pouncy v. Prudential Ins. Co., 668 F.2d 795 (5th Cir.1982); Talley v. United States Postal Service, 720 F.2d 505 (8th Cir.1983);" }, { "docid": "14666462", "title": "", "text": "are split on the issue whether'a disparate impact analysis may be applied to subjective employee selection procedures. The Fourth, Eighth and Ninth Circuits will apply impact analysis only to specified objective employee selection practices. See EEOC v. Fed. Reserve Bank, 698 F.2d 633, 638-39 (4th Cir.1983), rev’d Cooper v. Fed. Reserve Bank, 467 U.S. 867, 104 S.Ct. 2794, 81 L.Ed.2d 718 (1984); Harris v. Ford Motor Co., 651 F.2d 609, 611 (8th Cir.1981); Atonio v. Wards Cove Packing Co., 768 F.2d 1120, 1131-33 (9th Cir. 1985); Heagney v. Univ. of Washington, 642 F.2d 1157, 1163 (9th Cir.1981). The Sixth, Tenth, Eleventh and D.C. Circuits have allowed a disparate impact claim to proceed even with respect to a subjective employment practice. See Rowe v. Cleveland Pneumatic Co., Numerical Control, Inc., 690 F.2d 88, 94-95 (6th Cir.1982); Hawkins v. Bounds, 752 F.2d 500, 503 (10th Cir.1985); Bauer v. Bailar, 647 F.2d 1037, 1042-43 (10th Cir.1981); Griffin v. Carlin, 755 F.2d 1516, 1522-25 (11th Cir.1985); Segar v. Smith, 738 F.2d 1249, 1288 n. 34 (D.C.Cir.1984), cert. denied sub nom. Meese v. Segar, — U.S. —, 105 S.Ct. 2357, 86 L.Ed.2d 258 (1985). The Fifth Circuit has recently examined a subjective promotional system under a disparate impact analysis. See Page v. U.S. Indus., 726 F.2d 1038, 1045-46 (5th Cir.1984). The court in Page, however, failed to reconcile its holding with other Fifth Circuit cases that held that impact analysis should not be applied to subjective practices. See Vuyanich v. Republic Nat’l Bank, 723 F.2d 1195, 1202 (5th Cir.), cert. denied, — U.S. —, 105 S.Ct. 567, 83 L.Ed.2d 507 (1984); Carroll v. Sears, Roebuck & Co., 708 F.2d 183, 188-89 (5th Cir.1983); Pegues v. Mississippi State Employment Serv., 699 F.2d 760, 765 (5th Cir.), cert. denied, 464 U.S. 991, 104 S.Ct. 482, 78 L.Ed.2d 679 (1983); Pouncy v. Prudential Ins. Co., 668 F.2d 795, 800-01 (5th Cir.1982). The Ninth Circuit has explained the rationale behind requiring challenges to subjective employment decisions to proceed under a disparate treatment analysis: Presumably, therefore, the disparate impact model was created to challenge those specific, facially-neutral practices that result" }, { "docid": "22969993", "title": "", "text": "(1985); Coe v. Yellow Freight Sys., 646 F.2d 444, 450-51 (10th Cir.1981) (dicta); Williams v. Colorado Springs, Colo. School Dist. No. 11, 641 F.2d 835 (10th Cir.1981). I have already noted the inconsistency of one recent Eleventh Circuit decision with my opinion. See Griffin v. Carlin, 755 F.2d 1516, 1523-25 (11th Cir. 1985) (applying disparate impact analysis to the end result of a hiring process without requiring the plaintiffs to identify a particular practice). That disagreement as to the requirements of the prima facie case does not extend, however, to the scope of the impact analysis itself. I would apply impact analysis to the facts of Griffin, only reaching a different result. Finally, the D.C. Circuit has recently articulated a complicated position, not completely in accord with either of the common positions exhibited in the other circuits. See Segar v. Smith, 738 F.2d 1249, 1270-72 (D.C.Cir.1984), cert. denied, 471 U.S. 1115, 105 S.Ct. 2357, 86 L.Ed.2d 258 (1985). In that opinion, the panel discussed the following scenario. After a plaintiff establishes a prima facie treatment case, defendants frequently advance an employment practice as a legitimate reason for their hiring decisions. According to the Segar panel, the employers' articulation of that practice as a defense to the treatment case establishes a prima facie impact case against the practice in question. Accordingly, the defendants must defend the practice under the business necessity test required by disparate impact analysis. . I recognize that this claim is quite similar to the claim presented in Fumco Construction Corp. v. Waters, 438 U.S. 567, 98 S.Ct. 2943, 57 L.Ed.2d 957 (1978), a claim to which the Court refused to apply disparate impact analysis, id. at 575 & n. 7, 98 S.Ct. at 2948-49 & n. 7. In that case, the Court emphasized the \"importance of selecting people whose capability has been demonstrated to defendant.” Id. at 574, 98 S.Ct. at 2948 (quoting the lower court opinion). If this were treated as a job qualification, under my analysis the impact analysis would apply, but the plaintiffs would have failed to establish a prima facie case because they" }, { "docid": "2601121", "title": "", "text": "District, 641 F.2d 835, 842 (10th Cir.1981) (emphasis in original) (citations omitted); see also Hawkins v. Bounds, 752 F.2d 500, 503-04 (10th Cir.1985); Lasso v. Woodmen of the World Life Insurance Co., 741 F.2d 1241, 1245 (10th Cir.1984), cert. denied, 471 U.S. 1099, 105 S.Ct. 2320, 85 L.Ed.2d 839 (1985). This is, of course, a heavier burden upon the employer than in discriminatory treatment cases. The different allocations of the burdens of persuasion and production in disparate treatment and disparate impact cases stem from the different requirements for establishing the prima facie case: “ '[Establishing a prima facie case of disparate treatment is not onerous.’ Burdine, 450 U.S. at 253, 101 S.Ct. at 1094. In making a prima facie case in a disparate impact suit, however, the plaintiff must not merely prove circumstances raising an inference of discriminatory impact; he must prove the discriminatory impact at issue.” Johnson v. Uncle Ben’s, Inc., 657 F.2d 750, 753 (5th Cir.1981), cert. denied, 459 U.S. 967, 103 S.Ct. 293, 74 L.Ed.2d 277 (1982) (emphasis added); accord Segar v. Smith, 738 F.2d 1249, 1266-68, 1270 n. 17 (D.C.Cir.1984), cert. denied, 471 U.S. 1115, 105 S.Ct. 2357, 86 L.Ed.2d 258 (1985); Moore v. Hughes Helicopters, Inc., 708 F.2d 475, 481-82 (9th Cir.1983). We emphasize the differences between the two types of cases because we agree with the district court that Thomas did not produce sufficient evidence to establish the discriminatory impact of the no-spouse rule. We do not agree, however, with all that the district court said in arriving at its conclusion. Indeed, we affirm on this issue reluctantly because we suspect, as others have claimed, that “no-spouse” rules in practice often result in discrimination against women, and are generally unjustified. But we cannot accept our own speculations or others’ conclusions as a substitute for plaintiff’s required proof, nor may we take judicial notice of evidence that might have been but was not presented. Thomas presented evidence that in the only two instances in which Metroflight enforced the “no-spouse” rule, female employees were fired. But that alone is insufficient to prove a violation of Title" }, { "docid": "22969960", "title": "", "text": "of the plaintiffs’ claims in light of this decision. . The Second, Third, Sixth, Tenth, Eleventh and District of Columbia Circuits apply impact analysis to subjective practices and criteria. See, e.g., Zahorik v. Cornell University, 729 F.2d 85 (2d Cir.1984); Grant v. Bethlehem Steel Corp., 635 F.2d 1007 (2d Cir.1980), cert. denied, 452 U.S. 940, 101 S.Ct. 3083, 69 L.Ed.2d 954 (1981); Wilmore v. City of Wilmington, 699 F.2d 667 (3d Cir.1983); Rowe v. Cleveland Pneumatic Co., Numerical Control, Inc., 690 F.2d 88 (6th Cir.1982); Hawkins v. Bounds, 752 F.2d 500 (10th Cir.1985); Lasso v. Woodmen of World Life Insurance Co., Inc., 741 F.2d 1241 (10th Cir.1984), cert. denied, 471 U.S. 1099, 105 S.Ct. 2320, 85 L.Ed.2d 839 (1985); Coe v. Yellow Freight System, Inc., 646 F.2d 444 (10th Cir. 1981); Williams v. Colorado Springs School District No. 11, 641 F.2d 835 (10th Cir.1981); Grif fin v. Carlin, 755 F.2d 1516 (11th Cir.1985); Segar v. Smith, 738 F.2d 1249 (D.C.Cir.1984), cert. denied, 471 U.S. 1115, 105 S.Ct. 2357, 86 L.Ed.2d 258 (1985). The Fourth Circuit does not apply impact analysis to subjective criteria. See, e.g., E.E.O.C. v. Federal Reserve Bank, 698 F.2d 633 (4th Cir.1983), rev’d on other grounds sub nom. Cooper v. Federal Reserve Bank, 467 U.S. 867, 104 S.Ct. 2794, 81 L.Ed.2d 718 (1984); Pope v. City of Hickory, 679 F.2d 20 (4th Cir. 1982); but see Brown v. Gaston County Dyeing Machine Co., 457 F.2d 1377 (4th Cir.), cert. denied, 409 U.S. 982, 93 S.Ct. 319, 34 L.Ed.2d 246 (1972); Robinson v. Lorillard Corp., 444 F.2d 791 (4th Cir.), cert. dismissed, 404 U.S. 1006, 92 S.Ct. 573, 30 L.Ed.2d 655 (1971). The Fifth, Seventh and Eighth Circuits have reached conflicting results, sometimes applying impact analysis and sometimes refusing to apply it. See, e.g., Page v. U.S. Industries, Inc., 726 F.2d 1038 (5th Cir.1984); Rowe v. General Motors Corp., 457 F.2d 348 (5th Cir.1972) (applying impact analysis); contra Bunch v. Bullard, 795 F.2d 384, 394 (5th Cir. 1986); Vuyanich v. Republic National Bank, 723 F.2d 1195 (5th Cir.) cert. denied, 469 U.S. 1073, 105 S.Ct. 567, 83 L.Ed.2d" }, { "docid": "17290542", "title": "", "text": "by awarding damages for lost social security, pension and other workers’ compensation benefits. Because USX’s contentions regarding disparate impact present significant issues of first impression to this Court, we will address them first in this discussion. We will then address the issues raised by the class on the principal appeal, and conclude by discussing the remaining issues raised by USX. III. DISPARATE IMPACT USX’s contention that disparate impact analysis is inapplicable to cases in which a multicomponent hiring system that utilizes subjective criteria is challenged, brings to this Court for the first time issues that are the subject of a significant conflict between the various Courts of Appeals. Compare, e.g., Pouncey v. Prudential Ins. Co., 668 F.2d 795 (5th Cir.1982) (use of disparate impact theory in cases involving challenge to multicomponent, subjective criteria hiring system is improper because it unjustly burdens employers); Watson v. Fort Worth Bank & Trust, 798 F.2d 791 (5th Cir.1986) (same), cert. granted, — U.S. —, 107 S.Ct. 3227, 97 L.Ed.2d 734 (1987), argued Jan. 20, 1988, 56 U.S.L.W. 3513 (U.S. Feb. 2, 1988) and E.E.O.C. v. Federal Reserve Bank, 698 F.2d 633, 639 (4th Cir.1983) (challenge that is not directed to “ ‘specific procedure ... [that] has a discriminatory impact on blacks’ ... does not fit within the model disparate impact claim”) (quoting Pouncey, 668 F.2d at 800), rev’d on other grounds sub nom. Cooper v. Federal Reserve Bank, 467 U.S. 867,104 S.Ct. 2794, 81 L.Ed.2d 718 (1984) with Atonio v. Wards Cove Parking Co., 810 F.2d 1477 (9th Cir.1987) (en banc) (holding that disparate impact analysis may be applied to subjective employment practices in employment discrimination actions) petition for cert. filed, 56 U.S.L.W. 3670 (U.S. March 29, 1988) (No. 87-1387, filed Feb. 9, 1988), and petition for cert. filed, 56 U.S.L.W. 3670 (U.S. March 29, 1988) (No. 87-1388, filed Feb. 10, 1988); Griffin v. Carlin, 755 F.2d 1516 (11th Cir.1985) (concluding that subjective multicomponent hiring practices are subject to disparate impact analysis) and Segar v. Smith, 738 F.2d 1249 (D.C.Cir.1984) (expressly rejecting Pouncey and holding that the application of disparate impact analysis to such" }, { "docid": "22969962", "title": "", "text": "507 (1984); Pegues v. Mississippi State Employment Service, 699 F.2d 760 (5th Cir.), cert. denied, 464 U.S. 991, 104 S.Ct. 482, 78 L.Ed.2d 679 (1983); Carroll v. Sears Roebuck & Co., 708 F.2d 183 (5th Cir.1983); Pouncy v. Prudential Insurance Co., 668 F.2d 795 (5th Cir. 1982); Griffin v. Board of Regents, 795 F.2d 1281, 1288-89 and n. 14 (7th Cir.1986) (refusing to apply impact analysis); contra Clark v. Chrysler Corp., 673 F.2d 921 (7th Cir.) cert. denied, 459 U.S. 873, 103 S.Ct. 161, 74 L.Ed.2d 134 (1982); Talley v. United States Postal Service, 720 F.2d 505 (8th Cir.1983), cert. denied, 466 U.S. 952, 104 S.Ct. 2155, 80 L.Ed.2d 541 (1984); Harris v. Ford Motor Co., 651 F.2d 609 (8th Cir.1981) (refusing to apply impact analysis); contra Gilbert v. Little Rock, 722 F.2d 1390 (8th Cir.1983), cert. denied, 466 U.S. 972, 104 S.Ct. 2347, 80 L.Ed.2d 820 (1984). . See, e.g. Page v. U.S. Industries, Inc., 726 F.2d 1038, 1054 (5th Cir.1984) (applying impact analysis to subjective employment practices in accord with Rowe v. General Motors Corp., 457 F.2d 348 (5th Cir.1972) because \"promotional systems which depend upon the subjective evaluation and favorable recommendation of immediate supervisors provide a ready vehicle for discrimination.\"); E.E.O.C. v. Federal Reserve Bank, 698 F.2d 633, 639 (4th Cir.1983), rev’d on other grounds sub nom. Cooper v. Federal Reserve Bank, 467 U.S. 867, 104 S.Ct. 2794, 81 L.Ed.2d 718 (1984) (allegedly discriminatory promotion policies could not be subjected to impact analysis because the subjective criteria did not amount to an \"objective standard, applied evenly and automatically\" as are a diploma requirement, a test or a minimum height or weight requirement). . See, e.g., Larson, 3 Employment Discrimination § 76.36 n. 90 (1984 & Supp. Nov. 1985) (collecting cases). . See, e.g. Grant v. Bethlehem Steel Corp., 635 F.2d 1007 (2d Cir.1980), cert. denied, 452 U.S. 940, 101 S.Ct. 3083, 69 L.Ed.2d 954 (1981) (a post Fumco decision in which, on virtually identical facts, the court held that word of mouth hiring should be evaluated as discriminatory treatment and for discriminatory impact. Id. at 1016-17.); Bauer" }, { "docid": "22969963", "title": "", "text": "Motors Corp., 457 F.2d 348 (5th Cir.1972) because \"promotional systems which depend upon the subjective evaluation and favorable recommendation of immediate supervisors provide a ready vehicle for discrimination.\"); E.E.O.C. v. Federal Reserve Bank, 698 F.2d 633, 639 (4th Cir.1983), rev’d on other grounds sub nom. Cooper v. Federal Reserve Bank, 467 U.S. 867, 104 S.Ct. 2794, 81 L.Ed.2d 718 (1984) (allegedly discriminatory promotion policies could not be subjected to impact analysis because the subjective criteria did not amount to an \"objective standard, applied evenly and automatically\" as are a diploma requirement, a test or a minimum height or weight requirement). . See, e.g., Larson, 3 Employment Discrimination § 76.36 n. 90 (1984 & Supp. Nov. 1985) (collecting cases). . See, e.g. Grant v. Bethlehem Steel Corp., 635 F.2d 1007 (2d Cir.1980), cert. denied, 452 U.S. 940, 101 S.Ct. 3083, 69 L.Ed.2d 954 (1981) (a post Fumco decision in which, on virtually identical facts, the court held that word of mouth hiring should be evaluated as discriminatory treatment and for discriminatory impact. Id. at 1016-17.); Bauer v. Bailar, 647 F.2d 1037, 1043 (10th Cir.1981) (\"Subjective hiring and promotion decisions, particularly where made in the absence of specific standards and guidelines!,] may not go unexplained if there is a significantly disproportionate non-selection of members of a [protected] group____”). See also cases cited supra, n. 1. . See D. Baldus and J. Cole, Statistical Proof of Discrimination § 1.23 (1980 & Supp.1985) (\"The logic of the disparate impact doctrine appears to apply to covert legitimate policies, no matter how discretionarily they are applied, as well as it does to overt nondiscretionary criteria.”) . We note that a related concern is that the \"impact model is not the appropriate vehicle from which to launch a wide ranging attack on the cumulative effect of a company’s employment practices.” Spaulding, 740 F.2d at 707. However, this is not such a case. The class has not simply complained about the overall consequences of a collection of unidentified practices; rather it has identified specific employment practices which cause adverse impact. These specific practices which cause adverse impact may" }, { "docid": "22969959", "title": "", "text": "employer to justify the challenged practice. We emphasize that while proving business necessity may be “an arduous task,” Bunch v. Bullard, 795 F.2d 384, 393 n. 10 (5th Cir.1986), this burden will not arise until the plaintiff has shown a causal connection between the challenged practices and the impact on a protected class. In weighing competing policy considerations urged by the defendants, primary guidance is provided by the purpose of Title VII, namely to eradicate the existence and effects of discrimination in employment. Treatment and impact analyses are interpretive constructions intended to provide guidance in evaluating the evidence presented in discrimination cases so as best to effectuate Congressional intent. In this case, that intent is best realized by a decision to apply disparate impact analysis to subjective employment practices. CONCLUSION For the reasons discussed, we hold that disparate impact analysis can be applied to subjective employment practices. To the extent our prior decisions have held to the contrary they are expressly overruled. We return this cause to the panel to reconsider the district court’s disposition of the plaintiffs’ claims in light of this decision. . The Second, Third, Sixth, Tenth, Eleventh and District of Columbia Circuits apply impact analysis to subjective practices and criteria. See, e.g., Zahorik v. Cornell University, 729 F.2d 85 (2d Cir.1984); Grant v. Bethlehem Steel Corp., 635 F.2d 1007 (2d Cir.1980), cert. denied, 452 U.S. 940, 101 S.Ct. 3083, 69 L.Ed.2d 954 (1981); Wilmore v. City of Wilmington, 699 F.2d 667 (3d Cir.1983); Rowe v. Cleveland Pneumatic Co., Numerical Control, Inc., 690 F.2d 88 (6th Cir.1982); Hawkins v. Bounds, 752 F.2d 500 (10th Cir.1985); Lasso v. Woodmen of World Life Insurance Co., Inc., 741 F.2d 1241 (10th Cir.1984), cert. denied, 471 U.S. 1099, 105 S.Ct. 2320, 85 L.Ed.2d 839 (1985); Coe v. Yellow Freight System, Inc., 646 F.2d 444 (10th Cir. 1981); Williams v. Colorado Springs School District No. 11, 641 F.2d 835 (10th Cir.1981); Grif fin v. Carlin, 755 F.2d 1516 (11th Cir.1985); Segar v. Smith, 738 F.2d 1249 (D.C.Cir.1984), cert. denied, 471 U.S. 1115, 105 S.Ct. 2357, 86 L.Ed.2d 258 (1985). The Fourth Circuit" }, { "docid": "22969961", "title": "", "text": "does not apply impact analysis to subjective criteria. See, e.g., E.E.O.C. v. Federal Reserve Bank, 698 F.2d 633 (4th Cir.1983), rev’d on other grounds sub nom. Cooper v. Federal Reserve Bank, 467 U.S. 867, 104 S.Ct. 2794, 81 L.Ed.2d 718 (1984); Pope v. City of Hickory, 679 F.2d 20 (4th Cir. 1982); but see Brown v. Gaston County Dyeing Machine Co., 457 F.2d 1377 (4th Cir.), cert. denied, 409 U.S. 982, 93 S.Ct. 319, 34 L.Ed.2d 246 (1972); Robinson v. Lorillard Corp., 444 F.2d 791 (4th Cir.), cert. dismissed, 404 U.S. 1006, 92 S.Ct. 573, 30 L.Ed.2d 655 (1971). The Fifth, Seventh and Eighth Circuits have reached conflicting results, sometimes applying impact analysis and sometimes refusing to apply it. See, e.g., Page v. U.S. Industries, Inc., 726 F.2d 1038 (5th Cir.1984); Rowe v. General Motors Corp., 457 F.2d 348 (5th Cir.1972) (applying impact analysis); contra Bunch v. Bullard, 795 F.2d 384, 394 (5th Cir. 1986); Vuyanich v. Republic National Bank, 723 F.2d 1195 (5th Cir.) cert. denied, 469 U.S. 1073, 105 S.Ct. 567, 83 L.Ed.2d 507 (1984); Pegues v. Mississippi State Employment Service, 699 F.2d 760 (5th Cir.), cert. denied, 464 U.S. 991, 104 S.Ct. 482, 78 L.Ed.2d 679 (1983); Carroll v. Sears Roebuck & Co., 708 F.2d 183 (5th Cir.1983); Pouncy v. Prudential Insurance Co., 668 F.2d 795 (5th Cir. 1982); Griffin v. Board of Regents, 795 F.2d 1281, 1288-89 and n. 14 (7th Cir.1986) (refusing to apply impact analysis); contra Clark v. Chrysler Corp., 673 F.2d 921 (7th Cir.) cert. denied, 459 U.S. 873, 103 S.Ct. 161, 74 L.Ed.2d 134 (1982); Talley v. United States Postal Service, 720 F.2d 505 (8th Cir.1983), cert. denied, 466 U.S. 952, 104 S.Ct. 2155, 80 L.Ed.2d 541 (1984); Harris v. Ford Motor Co., 651 F.2d 609 (8th Cir.1981) (refusing to apply impact analysis); contra Gilbert v. Little Rock, 722 F.2d 1390 (8th Cir.1983), cert. denied, 466 U.S. 972, 104 S.Ct. 2347, 80 L.Ed.2d 820 (1984). . See, e.g. Page v. U.S. Industries, Inc., 726 F.2d 1038, 1054 (5th Cir.1984) (applying impact analysis to subjective employment practices in accord with Rowe v. General" }, { "docid": "14666461", "title": "", "text": "had more teaching experience or that she did the best work. . We express no opinion on whether plaintiffs could identify a combination of criteria or practices, the combined effect of which would cause an adverse impact; plaintiffs have not identified any such combination. See Pouncy v. Prudential Ins. Co., 668 F.2d 795, 800 (5th Cir.1982); Griffin v. Carlin, 755 F.2d 1516, 1525 (11th Cir.1985). . Further, a disparate impact analysis may not be appropriate for faculty hiring decisions because such decisions necessarily involve many subjective factors. Disparate impact claims generally involve facially neutral criteria, such as minimum height or weight requirements or a minimum score on an objective test. See Regner v. City of Chicago, 789 F.2d 534, 538 (7th Cir.1986). We have previously noted, without deciding the issue, that a \"disparate impact claim is more problematic when subjective factors are present in the decisionmaking process.” Regner, 789 F.2d at 538; see Moore v. Hughes Helicopters, 708 F.2d 475, 481 (9th Cir.1983); Robinson v. Polaroid Corp., 732 F.2d 1010, 1015 (1st Cir.1984). The circuits are split on the issue whether'a disparate impact analysis may be applied to subjective employee selection procedures. The Fourth, Eighth and Ninth Circuits will apply impact analysis only to specified objective employee selection practices. See EEOC v. Fed. Reserve Bank, 698 F.2d 633, 638-39 (4th Cir.1983), rev’d Cooper v. Fed. Reserve Bank, 467 U.S. 867, 104 S.Ct. 2794, 81 L.Ed.2d 718 (1984); Harris v. Ford Motor Co., 651 F.2d 609, 611 (8th Cir.1981); Atonio v. Wards Cove Packing Co., 768 F.2d 1120, 1131-33 (9th Cir. 1985); Heagney v. Univ. of Washington, 642 F.2d 1157, 1163 (9th Cir.1981). The Sixth, Tenth, Eleventh and D.C. Circuits have allowed a disparate impact claim to proceed even with respect to a subjective employment practice. See Rowe v. Cleveland Pneumatic Co., Numerical Control, Inc., 690 F.2d 88, 94-95 (6th Cir.1982); Hawkins v. Bounds, 752 F.2d 500, 503 (10th Cir.1985); Bauer v. Bailar, 647 F.2d 1037, 1042-43 (10th Cir.1981); Griffin v. Carlin, 755 F.2d 1516, 1522-25 (11th Cir.1985); Segar v. Smith, 738 F.2d 1249, 1288 n. 34 (D.C.Cir.1984), cert. denied sub" }, { "docid": "2777093", "title": "", "text": "impact analysis are the Fifth, Sixth, Tenth, Eleventh and D.C. Circuits. See Rowe v. General Motors Corp., 457 F.2d 348 (5th Cir.1972); Rowe v. Cleveland Pneumatic Co., Numerical Control, Inc., 690 F.2d 88 (6th Cir.1982); Lasso v. Woodmen of World Life Ins. Co., Inc., 741 F.2d 1241 (10th Cir.1984); Williams v. Colorado Springs School Dist., 641 F.2d 835 (10th Cir.1981); Griffin v. Carlin, 755 F.2d 1516 (11th Cir.1985); Segar v. Smith, 738 F.2d 1249 (D.C.Cir.1984). Those circuits which have said they will only apply impact analysis to specified objective employee selection practices include the Fourth, Fifth, Eighth, and Tenth Circuits. See EEOC v. Federal Reserve Bank, 698 F.2d 633 (4th Cir.1983); Pope v. City of Hickory, 679 F.2d 20 (4th Cir.1982); Vuyanich v. Republic Nat'l Bank, 723 F.2d 1195 (5th Cir.1984); Carroll v. Sears, Roebuck & Co., 708 F.2d 183 (5th Cir.1983); Carpenter v. Stephen F. Austin State Univ., 706 F.2d 608 (5th Cir.1983); Pouncy v. Prudential Ins. Co., 668 F.2d 795 (5th Cir.1982); Talley v. United States Postal Service, 720 F.2d 505 (8th Cir.1983); Harris v. Ford Motor Co., 651 F.2d 609 (8th Cir.1981); Mortensen v. Callaway, 672 F.2d 822 (10th Cir.1982)." }, { "docid": "22969987", "title": "", "text": "qualifications of applicants who have been rejected for the job. Obviously, the applicant pool itself could fail to represent adequately the number of qualified minorities because of discriminatory recruitment practices. See, e.g., Dothard v. Rawlinson, 433 U.S. 321, 330, 97 S.Ct. 2720, 2727, 53 L.Ed.2d 786 (1977). Those discriminatory recruitment practices themselves are subject to disparate impact analysis. But it is important to remember that a prima facie case that the recruitment practices in question have caused a disparate impact requires demonstration of a significant number of qualified persons overlooked because of the challenged practices. . I acknowledge that this position has not been articulated in the decisions of other courts that have examined similar questions. A brief survey of the law in other circuits reveals, however, that most of the decisions in this area are consistent with the approach I suggest. The Second Circuit has applied disparate impact analysis to employment systems that relied on subjective employee evaluations. Zahorik v. Cornett Univ., 729 F.2d 85, 95-96 (2d Cir.1984). Under my approach, such decisions would often be subject to the disparate impact analysis. The Third Circuit applied disparate impact to invalidate a test that partially based promotions on administrative skills. In that case, the employer had a practice of assigning whites to jobs that developed the administrative skills tested for by the exam. Accordingly, reliance on the administrative skills was improper. See Wilmore v. City of Wilmington, 699 F.2d 667, 675 (3d Cir. 1983). None of the Fourth Circuit decisions commonly cited in this area seems to have dealt specifically with the objective/subjective distinction. For instance, in EEOC v. Federal Reserve Bank, 698 F.2d 633, 638-39 (4th Cir. 1983), rev’d on other grounds sub nom. Cooper v. Federal Reserve Bank, 467 U.S. 867, 104 S.Ct. 2794, 81 L.Ed.2d 718 (1984), the court flatly stated that disparate impact analysis could be applied only to objective practices. In that case, however, the plaintiffs apparently identified no specific practice; instead, they seem to have been challenging the entire employment process. I would reach the same result, refusing to apply disparate impact unless the" }, { "docid": "17290543", "title": "", "text": "Feb. 2, 1988) and E.E.O.C. v. Federal Reserve Bank, 698 F.2d 633, 639 (4th Cir.1983) (challenge that is not directed to “ ‘specific procedure ... [that] has a discriminatory impact on blacks’ ... does not fit within the model disparate impact claim”) (quoting Pouncey, 668 F.2d at 800), rev’d on other grounds sub nom. Cooper v. Federal Reserve Bank, 467 U.S. 867,104 S.Ct. 2794, 81 L.Ed.2d 718 (1984) with Atonio v. Wards Cove Parking Co., 810 F.2d 1477 (9th Cir.1987) (en banc) (holding that disparate impact analysis may be applied to subjective employment practices in employment discrimination actions) petition for cert. filed, 56 U.S.L.W. 3670 (U.S. March 29, 1988) (No. 87-1387, filed Feb. 9, 1988), and petition for cert. filed, 56 U.S.L.W. 3670 (U.S. March 29, 1988) (No. 87-1388, filed Feb. 10, 1988); Griffin v. Carlin, 755 F.2d 1516 (11th Cir.1985) (concluding that subjective multicomponent hiring practices are subject to disparate impact analysis) and Segar v. Smith, 738 F.2d 1249 (D.C.Cir.1984) (expressly rejecting Pouncey and holding that the application of disparate impact analysis to such cases is more consistent with the purposes of Title VII), cert. denied sub nom. Meese v. Segar, 471 U.S. 1115, 105 S.Ct. 2357, 86 L.Ed.2d 258 (1985). Although the propriety of applying disparate impact analysis to these cases is often discussed without distinguishing the problems presented by a “multicomponent” challenge from those presented by a “subjective criteria” challenge, the issues are distinct. We have examined the tensions presented by these issues individually and conclude nonetheless that the application of disparate impact analysis to this case is proper. A. Multicomponent Criteria In large part, USX’s argument on this issue is predicated upon the rationale announced by Pouncey. In Pouncey, the Court of Appeals for the Fifth Circuit reviewed the district court’s denial of an insurance company employee’s claim that the overall system of promotion utilized by his employer had the effect of discriminating against him and the class of black employees that he represented. The court held that “the discriminatory impact model of proof ... [was] not ... the appropriate vehicle from which to launch a" }, { "docid": "22969991", "title": "", "text": "impact analysis because of its subjectivity. 668 F.2d at 800-01. I also note that in none of the Fifth Circuit cases following Pouncy would plaintiffs clearly have prevailed under my disparate impact analysis anyway. See Vuyanich, 723 F.2d at 1201-02 (plaintiff apparently failed to identify a specific practice); Carroll, 708 F.2d at 188-90 (apparently the plaintiffs failed to show causation); Pegues, 699 F.2d at 764-65 (practice not by an employer, but by a state employee commission). In the Sixth Circuit, disparate impact analysis has been applied in cases challenging rehiring based on unguided opinions of foremen. See Rowe v. Cleveland Pneumatic Co., 690 F.2d 88, 92-93 (6th Cir. 1982) (per curiam). The Seventh Circuit, in a case strikingly similar to this one, applied disparate impact analysis, as I do here, to word-of-mouth recruitment and selection of hiring channels. See Clark v. Chrysler Corp., 673 F.2d 921, 927 (7th Cir.), cert. denied, 459 U.S. 873, 103 S.Ct. 161, 74 L.Ed.2d 134 (1982). In the Eighth Circuit, I do find cases that are not reconcilable with my approach. That circuit has maintained a firm refusal to apply disparate impact analysis to what it characterizes as \"subjective” practices. See, e.g., Gilbert v. Little Rock, 722 F.2d 1390 (8th Cir.1983) (applying treatment analysis to a system relying on individual discretion), cert. denied, 466 U.S. 972 (1984); Talley v. United States Postal Serv., 720 F.2d 505, 506-07 (8th Cir.1983) (refusing to apply impact analysis), cert. denied, 466 U.S. 952, 104 S.Ct. 2155, 80 L.Ed.2d 541 (1984); Harris v. Ford Motor Co., 651 F.2d 609 (8th Cir.1981) (per curiam) (same). For the reasons articulated in the text, I think these cases are incorrect. I note that this footnote demonstrates that my approach is consistent with the great majority of existing authority. The Tenth Circuit has uniformly applied disparate impact analysis to practices that use subjectivity to cloak discrimination. See, e.g., Hawkins v. Bounds, 152 F.2d 500, 503 (10th Cir. 1985); Lasso v. Woodmen of the World Life Ins. Co., 741 F.2d 1241, 1245 (10th Cir.1984), cert. denied, 471 U.S. 1099, 105 S.Ct. 2320, 85 L.Ed.2d 839" }, { "docid": "22969989", "title": "", "text": "plaintiffs can identify a specific practice that causes a disparate impact. Similarly, Pope v. City of Hickory, 679 F.2d 20 (4th Cir. 1982), was a disparate treatment case; the plaintiffs alleged discrimination in general, not that it was implemented through some specific practice. Brown v. Gaston County Dyeing Machine Co., 457 F.2d 1377 (4th Cir,), cert. denied, 409 U.S. 982, 93 S.Ct. 319, 34 L.Ed.2d 246 (1972), failed to distinguish between the impact and treatment analysis at all. Robinson v. Lorillard Corp., 444 F.2d 791 (4th Cir.), cert. dismissed pursuant to Sup.CtR. 60, 404 U.S. 1006, 92 S.Ct. 573, 30 L.Ed.2d 655 (1971), is actually precedent for application of disparate impact analysis to more subjective systems, despite the flat statement in EEOC. In Robinson, the Fourth Circuit applied disparate impact to use of a seniority system that was at least partially subjective. The decisions in the Fifth Circuit display a similar lack of resolution in drawing a line between objective and subjective practices. Several panels of that circuit have thought that the law of the circuit precluded application of the disparate impact analysis to subjective factors, relying on Pouncy v. Prudential Insurance Co. of America, 668 F.2d 795 (5th Cir. 1982). See Vuyanich v. Republic Natl Bank, 723 F.2d 1195,1201-02 (5th Cir.), cert. denied, 469 U.S. 1073,105 S.Ct. 567, 83 L.Ed.2d 507 (1984); Carroll v. Sears, Roebuck & Co., 708 F.2d 183, 188-89 (5th Cir.1983) (Wisdom, J.); Pegues v. Mississippi State Employment Serv., 699 F.2d 760, 764 (5th Cir.), cert. denied, 464 U.S. 991, 104 S.Ct. 482, 78 L.Ed.2d 679 (1983). But at least one recent Fifth Circuit panel noted Pouncy and went on to apply disparate impact analysis to a system that based promotions on the subjective evaluations of foremen. See Page v. United States Indus., 726 F.2d 1038, 1045-46 (5th Cir.1984). The clarity of the ostensible rule of Pouncy is also not evident from that opinion itself. In fact, the opinion had alternative holdings: first, that the plaintiffs had not established that the practices caused the impact; and, second, that the practice was not susceptible to the disparate" }, { "docid": "4176608", "title": "", "text": "brakemen worked on 319 other occasions. During the same decade, the number of general yard brakemen fell below 15 only once, and all general yard crews were never cancelled. . See, e. g., United States v. St. Louis-San Francisco Ry., 464 F.2d 301, 307 (8th Cir. 1972), cert. denied, 409 U.S. 1116, 93 S.Ct. 913, 34 L.Ed.2d 700 (1973) ; Brown v. Gaston County Dyeing Mach. Co., 457 F.2d 1377, 1382 (4th Cir. 1972) ; United States v. Hayes Int’l Corp., 456 F.2d 112, 120 (5th Cir. 1972) ; United States v. Ironworkers Local 86, 443 F.2d 544, 550 (9th Cir.), cert. denied, 404 U.S. 984, 92 S.Ct. 447, 30 L.Ed.2d 367 (1971) ; Jones v. Lee Way Motor Freight, Inc., 431 F.2d 245, 247 (10th Cir. 1970), cert. denied, 401 U.S. 954, 91 S.Ct. 972, 28 L.Ed.2d 237 (1971). . United States v. Hayes Int’l Corp., 456 F.2d 112, 120 (5th Cir. 1972) ; United States v. Ironworkers Local 86, 443 F.2d 544, 550 (9th Cir.), cert. denied, 404 U.S. 984, 92 S.Ct. 447, 30 L.Ed.2d 367 (1971) ; Cypress v. Newport News Gen. and Nonsectarian Hosp. Ass’n, 375 F.2d 648, 654 (4th Cir. 1967) ; Chambers v. Hendersonville City Bd. of Educ., 364 F.2d 189, 192 (4th Cir. 1966). . United States v. St. Louis-San Francisco Ry., 464 F.2d 301, 309 (8th Cir. 1972), cert. denied, 409 U.S. 1116, 93 S.Ct. 913, 34 L.Ed.2d 700 (1973) ; United States v. Jacksonville Terminal Co., 451 F.2d 418, 454 (5th Cir. 1971), cert. denied, 406 U.S. 906, 92 S.Ct. 1607, 31 L.Ed.2d 815 (1972) ; Robinson v. Lorillard Corp., 444 F.2d 791, 799 (4th Cir.), cert. denied, 404 U.S. 1006, 92 S.Ct. 573, 30 L.Ed.2d 655 (1971). . Brown v. Gaston County Dyeing Mach. Co., 457 F.2d 1377, 1383 (4th Cir. 1972) ; Parham v. Southwestern Bell Telephone Co., 433 F.2d 421, 426 (8th Cir. 1970) ; cf. Jones v. Lee Way Motor Freight, Inc., 431 F.2d 245, 247 (10th Cir. 1970), cert. denied, 401 U.S. 954, 91 S.Ct. 972, 28 L.Ed.2d 237 (1971). . Robinson v. Lorillard Corp., 444" }, { "docid": "22969988", "title": "", "text": "often be subject to the disparate impact analysis. The Third Circuit applied disparate impact to invalidate a test that partially based promotions on administrative skills. In that case, the employer had a practice of assigning whites to jobs that developed the administrative skills tested for by the exam. Accordingly, reliance on the administrative skills was improper. See Wilmore v. City of Wilmington, 699 F.2d 667, 675 (3d Cir. 1983). None of the Fourth Circuit decisions commonly cited in this area seems to have dealt specifically with the objective/subjective distinction. For instance, in EEOC v. Federal Reserve Bank, 698 F.2d 633, 638-39 (4th Cir. 1983), rev’d on other grounds sub nom. Cooper v. Federal Reserve Bank, 467 U.S. 867, 104 S.Ct. 2794, 81 L.Ed.2d 718 (1984), the court flatly stated that disparate impact analysis could be applied only to objective practices. In that case, however, the plaintiffs apparently identified no specific practice; instead, they seem to have been challenging the entire employment process. I would reach the same result, refusing to apply disparate impact unless the plaintiffs can identify a specific practice that causes a disparate impact. Similarly, Pope v. City of Hickory, 679 F.2d 20 (4th Cir. 1982), was a disparate treatment case; the plaintiffs alleged discrimination in general, not that it was implemented through some specific practice. Brown v. Gaston County Dyeing Machine Co., 457 F.2d 1377 (4th Cir,), cert. denied, 409 U.S. 982, 93 S.Ct. 319, 34 L.Ed.2d 246 (1972), failed to distinguish between the impact and treatment analysis at all. Robinson v. Lorillard Corp., 444 F.2d 791 (4th Cir.), cert. dismissed pursuant to Sup.CtR. 60, 404 U.S. 1006, 92 S.Ct. 573, 30 L.Ed.2d 655 (1971), is actually precedent for application of disparate impact analysis to more subjective systems, despite the flat statement in EEOC. In Robinson, the Fourth Circuit applied disparate impact to use of a seniority system that was at least partially subjective. The decisions in the Fifth Circuit display a similar lack of resolution in drawing a line between objective and subjective practices. Several panels of that circuit have thought that the law of the" }, { "docid": "22969992", "title": "", "text": "approach. That circuit has maintained a firm refusal to apply disparate impact analysis to what it characterizes as \"subjective” practices. See, e.g., Gilbert v. Little Rock, 722 F.2d 1390 (8th Cir.1983) (applying treatment analysis to a system relying on individual discretion), cert. denied, 466 U.S. 972 (1984); Talley v. United States Postal Serv., 720 F.2d 505, 506-07 (8th Cir.1983) (refusing to apply impact analysis), cert. denied, 466 U.S. 952, 104 S.Ct. 2155, 80 L.Ed.2d 541 (1984); Harris v. Ford Motor Co., 651 F.2d 609 (8th Cir.1981) (per curiam) (same). For the reasons articulated in the text, I think these cases are incorrect. I note that this footnote demonstrates that my approach is consistent with the great majority of existing authority. The Tenth Circuit has uniformly applied disparate impact analysis to practices that use subjectivity to cloak discrimination. See, e.g., Hawkins v. Bounds, 152 F.2d 500, 503 (10th Cir. 1985); Lasso v. Woodmen of the World Life Ins. Co., 741 F.2d 1241, 1245 (10th Cir.1984), cert. denied, 471 U.S. 1099, 105 S.Ct. 2320, 85 L.Ed.2d 839 (1985); Coe v. Yellow Freight Sys., 646 F.2d 444, 450-51 (10th Cir.1981) (dicta); Williams v. Colorado Springs, Colo. School Dist. No. 11, 641 F.2d 835 (10th Cir.1981). I have already noted the inconsistency of one recent Eleventh Circuit decision with my opinion. See Griffin v. Carlin, 755 F.2d 1516, 1523-25 (11th Cir. 1985) (applying disparate impact analysis to the end result of a hiring process without requiring the plaintiffs to identify a particular practice). That disagreement as to the requirements of the prima facie case does not extend, however, to the scope of the impact analysis itself. I would apply impact analysis to the facts of Griffin, only reaching a different result. Finally, the D.C. Circuit has recently articulated a complicated position, not completely in accord with either of the common positions exhibited in the other circuits. See Segar v. Smith, 738 F.2d 1249, 1270-72 (D.C.Cir.1984), cert. denied, 471 U.S. 1115, 105 S.Ct. 2357, 86 L.Ed.2d 258 (1985). In that opinion, the panel discussed the following scenario. After a plaintiff establishes a prima facie treatment" }, { "docid": "2601120", "title": "", "text": "to make out a prima facie case of sexual discrimina tion unlawful under Title VII. Dealing in that case with hiring standards, the Court stated that “to establish a prima facie case of discrimination, a plaintiff need only show that the facially neutral standards in question select applicants for hire in a significantly discriminatory pattern.” Id. at 329, 97 S.Ct. at 2726. The same reasoning applies to a rule requiring termination of one spouse when a marriage occurs between employees of a company. In a disparate impact case, unlike a disparate treatment case, once a plaintiff makes out the prima facie case, the burden of proof shifts to the employer to show “business necessity:” “In a disparate impact case, ... the employer must prove business necessity for the challenged practice to rebut the prima facie case. He bears a burden of proof. Moreover, in a disparate impact case, unlike a disparate treatment case, a rational or legitimate, nondiscriminatory reason is insufficient. The practice must be essential, the purpose compelling.” Williams v. Colorado Springs, Colorado School District, 641 F.2d 835, 842 (10th Cir.1981) (emphasis in original) (citations omitted); see also Hawkins v. Bounds, 752 F.2d 500, 503-04 (10th Cir.1985); Lasso v. Woodmen of the World Life Insurance Co., 741 F.2d 1241, 1245 (10th Cir.1984), cert. denied, 471 U.S. 1099, 105 S.Ct. 2320, 85 L.Ed.2d 839 (1985). This is, of course, a heavier burden upon the employer than in discriminatory treatment cases. The different allocations of the burdens of persuasion and production in disparate treatment and disparate impact cases stem from the different requirements for establishing the prima facie case: “ '[Establishing a prima facie case of disparate treatment is not onerous.’ Burdine, 450 U.S. at 253, 101 S.Ct. at 1094. In making a prima facie case in a disparate impact suit, however, the plaintiff must not merely prove circumstances raising an inference of discriminatory impact; he must prove the discriminatory impact at issue.” Johnson v. Uncle Ben’s, Inc., 657 F.2d 750, 753 (5th Cir.1981), cert. denied, 459 U.S. 967, 103 S.Ct. 293, 74 L.Ed.2d 277 (1982) (emphasis added); accord Segar v." } ]

[ { "docid": "22452055", "title": "", "text": "use, although with private capital and for private gain, are not subject to actions in behalf of neighboring property owners for the ordinary damages attributable to the operation of the railroad, in the absence of negligence. Such roads are treated as public highways, and the proprietors as public servants, with the exemption normally enjoyed by such servants from liability to private suit, so far as concerns the inr cidental damages accruing to owners of non-adjacent land through the proper and skillful management and operation of the railways. Any diminution of the value of property not directly invadéd nor peculiarly affected, but sharing in the common burden of incidental damages arising from the legalized nuisance, is held not to be a “taking” within the constitutional provision. The immunity is limited to such damages as naturally ¿nd unavoidably result from the proper conduct of the road and are shared generally by property owners whose lands lie within range of the inconveniences necessarily incident to proximity to a railroad. It includes the noises and vibrations incident to the running of trains, the necessary emission of smoke and sparks from the locomotives, and similar annoyances inseparable from the normal and non-negligent operation of a railroad. Transportation Co. v. Chicago, 99 U. S. 635, 641; Beseman v. Pennsylvania R. R. Co., 50 N. J. L. 235, 240; affirmed 52 N. J. L. 221. . That the constitutional inhibition against the taking of private property for public use without compensation does not confer a right to compensation upon a land owner, no part of whose property has been actually appropriated, and who has sustained only those consequential damages that are necessarily incident to proximity to the railroad, has been so generally recognized that in some of the States (Arkansas, California, Colorado, Georgia, Illinois, Louisiana, Mississippi, Missouri, Montana, Nebraska, North Dakota, South Dakota, Texas, West Virginia, and Wyoming are, we believe, among the number) constitutions have been established providing in substance that private property shall not be taken or damaged, for public use •without compensation. . The immunity from liability for incidental injuries is attended with, a" } ]

[ { "docid": "21981650", "title": "", "text": "be controlling. The path of glide for airplanes might reduce a valuable factory site to grazing land, an orchard to a vegetable patch, a residential section to a wheat field. Some value would remain. But the use of the airspace immediately above the land would limit the utility of the land and cause a diminution in its value.” The Court further said (328 U.S. at 266, 66 S.Ct. at 1068): “The airplane is part of the modern environment of life, and the inconveniences which it causes are normally not compensable under the Fifth Amendment. The airspace, apart from the immediate reaches above the land, is part of the public domain. We need not determine at this time what those precise limits are. Flights over private land are not a taking, unless they are so low and so frequent as to be a direct and immediate interference with the enjoyment and use of the land.” The Court pointed out that although Congress has granted every citizen “a public right of freedom of transit through the navigable airspace of the United States” (49 U.S.C. § 403, now § 1304), the “navigable airspace of the United States,” as then defined by statute and regulation, began at a height of not less than 500 feet above the ground for air carriers, and extended upward from that level. Hence the offending planes, when they passed over plaintiff’s property as low as 83 feet, were not in the “navigable airspace of the United States” which Congress had placed within the public domain. After the decision in Causby, Congress amended the statute so as to define “navigable airspace” to include “airspace needed to insure safety in take-off and landing of aircraft.” 49 U.S.C. § 1301 (24). Any doubt which might have arisen as to whether the Causby rule was affected by this amendment was dispelled by Griggs, which was decided after the amendment. In Griggs, the Supreme Court held that Allegheny County, which owned and operated the Greater Pittsburgh Airport, had taken an easement over plaintiff’s property for which the Fourteenth Amendment required it to pay compensation." }, { "docid": "15181196", "title": "", "text": "that one does not take what he destroys. But the construction of the phrase has not been so narrow. The courts have held that the deprivation of the former owner rather than the accretion of a right or interest to the sovereign constitutes the taking. Governmental action short of acquisition of title or occupancy has been held, if its effects are so complete as to deprive the owner of all or most of his interest in the subject matter, to amount to a taking. [Emphasis added] This broad language was further elaborated and delimited in United States v. Causby, 328 U.S. 256, 66 S.Ct. 1062, 90 L.Ed. 1206 (1946). Causby involved a suit in the Court of Claims against the United States to recover for an alleged taking by the government of plaintiff’s home and chicken farm which was adjacent to a municipal airport leased to the government. The taking was said to occur as a result of airplane flights so low and so frequent over plaintiff’s land as to be a direct and immediate interference with the use and enjoyment of the land. As many as 150 chickens were killed when they flew into walls from fright. The value of the property was significantly depreciated. In effect, the result of the governmental activity was the destruction of the use of the property as a commercial chicken farm. The Supreme Court held that these facts were sufficient to constitute a “taking” under the Fifth Amendment. The taking was in the nature of an easement of flight, which if found to be permanent, would be the equivalent to taking the entire fee interest. In Causby, the Court was concerned with the nature of the plaintiff’s interest in the property and the extent to which governmental action interferred with that interest. Substance and not mere form was controlling. The owner’s right to possess and exploit the land and other incidents of his beneficial ownership had been destroyed. It was the character of the invasion that was determinative. If the damage or interference with the use of the property is “substantial” and “direct" }, { "docid": "15708480", "title": "", "text": "with the operation of an owner-occupied farm.” If that is true, then there was a taking at that time of an easement of flight over plaintiffs’ property at the lowest altitude at which these planes were accustomed to fly. This is the holding of the Supreme Court in Portsmouth Harbor Land & Hotel Co. v. United States, 260 U.S. 327, 43 S.Ct. 135, 67 L.Ed. 287, and in United States v. Causby, 328 U.S. 256, 66 S.Ct. 1062, 90 L.Ed. 1206. See also Highland Park, Inc. v. United States, 161 F.Supp. 597, 142 Ct.Cl. 269. In the Causby case the Supreme Court, after having said that the United States conceded that if the flights over plaintiffs’ property rendered it uninhabitable there would be a taking, said [328 U.S. 256, 66 S.Ct. 1066]: “There is no material difference between the supposed case and the present one, except that here enjoyment and use of the land are not completely destroyed. But that does not seem to us to be controlling. The path of glide for airplanes might reduce a valuable factory site to grazing land, an orchard to a vegetable patch, a residential section to a wheat field. Some value would remain. But the use of the airspace immediately above the land would limit the utility of the land and cause a diminution in its value. That was the philosophy of Portsmouth Harbor Land & Hotel Co. v. United States, 260 U.S. 327, 43 S.Ct. 135, 67 L.Ed. 287. In that case the petition alleged that the United States erected a fort on nearby land, established a battery and a fire control station there, and fired guns over petitioner’s land. The Court, speaking through Mr. Justice Holmes, reversed the Court of Claims, which dismissed the petition on a demurrer, holding that ‘the specific facts set forth would warrant a finding that a servitude has been imposed.’ 260 U.S. at page 330, 43 S.Ct. at page 137, 67 L.Ed. 287. And see Delta Air Corp. v. Kersey, 193 Ga. 862, 20 S.E.2d 245, 140 A.L.R. 1352. Cf. United States v. 357.25 Acres of" }, { "docid": "21981649", "title": "", "text": "Act, 28 U.S.C. § 1346(a) (2), against the United States arising out of operations at military air bases. Causby held that an easement in plaintiff’s land was taken by the United States, in the constitutional sense, when heavy bombers from a neighboring base, upon takeoff and landing, “frequently” passed over plaintiff’s land “in considerable numbers,” as low as 83 feet, thereby subjecting plaintiff to noise and glare and causing-plaintiff’s chickens to panic and kill themselves by flying into walls. The Court made several statements which, because of their importance for later cases and the present one, are quoted in full. It said (328 U.S. at 262, 66 S.Ct. at 1066): “In the supposed case, the line of flight is over the land. And the land is appropriated as directly and com pletely as if it were used for the runways themselves. “There is no material difference between the supposed case and the present one, except that here enjoyment and use of the land are not completely destroyed. But that does not seem to us to be controlling. The path of glide for airplanes might reduce a valuable factory site to grazing land, an orchard to a vegetable patch, a residential section to a wheat field. Some value would remain. But the use of the airspace immediately above the land would limit the utility of the land and cause a diminution in its value.” The Court further said (328 U.S. at 266, 66 S.Ct. at 1068): “The airplane is part of the modern environment of life, and the inconveniences which it causes are normally not compensable under the Fifth Amendment. The airspace, apart from the immediate reaches above the land, is part of the public domain. We need not determine at this time what those precise limits are. Flights over private land are not a taking, unless they are so low and so frequent as to be a direct and immediate interference with the enjoyment and use of the land.” The Court pointed out that although Congress has granted every citizen “a public right of freedom of transit through the navigable" }, { "docid": "6960780", "title": "", "text": "533, 7 L.Ed.2d 585 (1962); Brown v. United States, 73 F.3d 1100, 1102 (Fed.Cir. 1996). Factually, Causby represents what may be viewed as the paradigm of overflight takings cases. In that case, the plaintiffs owned and occupied 2.8 acres of land near a military airport in North Carolina. 328 U.S. at 258, 66 S.Ct. at 1064. Various United States aircraft — bombers, transports, and fighters— frequently passed directly over the property at altitudes as low as 83 feet. Id. at 258-59, 66 S.Ct. at 1064-65. These overflights barely missed the tops of trees and structures on the property, and caused noise significant enough to deprive the family of sleep and make the property unsuitable for chicken fanning, the plaintiffs’ previous livelihood. Id. at 259, 66 S.Ct. at 1064. Crafting a flexible test that balanced the interests of the public against the interests of the private landowners, the Court granted the landowners compensation for their loss to the extent that the overflights were “so low and so frequent as to be a direct and immediate interference with the enjoyment and use of the land.” 328 U.S. at 261, 263, 266-67, 66 S.Ct. at 1065, 1066, 1068-69. Key to the Court’s reasoning in Causby was the physical interference with the plaintiffs’ use of their land: The path of glide for airplanes might reduce a valuable factory site to grazing land, an orchard to a vegetable patch, a residential section to a wheat field. Some value would remain. But the use of the airspace immediately above the land would limit the utility of the land and cause a diminution in its value. Id. at 262, 66 S.Ct. at 1066. See also Griggs, 369 U.S. at 89, 82 S.Ct. at 533 (without some protection of superadjacent airspace, “no home could be built, no tree planted, no fence constructed, no chimney erected”). Subsequent federal cases set a rule, applied more or less in mechanical fashion, that the United States might be liable for flights below 500 feet in noncongested areas (or 1000 feet in congested areas), but that flights at higher altitudes did not interfere" }, { "docid": "11135865", "title": "", "text": "persistent flooding and saturated soil during growing seasons damaged root systems to the point that the advent of dry weather rendered the roots incapable of supporting trees. See supra, at 612-13 (discussing die-back of surface feeder roots in flooded or saturated soils and the formation of small, carrot-like root suckers in epicormic fashion from larger primary roots). Thus, despite the government’s objections that some timber was still harvestable during the period of the deviations, in general, the government’s superinduced flows so profoundly disrupted certain regions of the Management Area that the Commission could no longer use those regions for their intended purposes, ie., providing habitat for wildlife and timber for harvest. See PX 80 at 18 (King-wood Report I) (assessing significant losses to merchantable value of declining timber). Instructive as to appropriation are two other takings cases, United States v. Causby, 328 U.S. 256, 66 S.Ct. 1062, 90 L.Ed. 1206 (1946); and Reed Island-MLC, Inc. v. United States, 67 Fed.Cl. 27 (2005). In Causby, low-flying Army aircraft flew directly above plaintiffs’ land, causing many of plaintiffs’ chickens to fly into walls from fright and be killed. 328 U.S. at 259, 66 S.Ct. 1062. The government’s actions were held to amount to a compensable taking despite the fact that “enjoyment and use of the land [was] not completely destroyed.” Id. at 262, 66 S.Ct. 1062. The Supreme Court reasoned that [t]he path of glide for airplanes might reduce a valuable factory site to grazing land, an orchard to a vegetable patch, a residential section to a wheat field. Some value would remain. But the use of the airspace immediately above the land would limit the utility of the land and cause a diminution in its value. 328 U.S. at 262, 66 S.Ct. 1062 (emphasis added). Similarly, in Reed Island, this court found a taking where a government-imposed geographic margin of safety attendant to active operation of a munitions-loading facility “effectively forestalled” habitation on the landowner’s property, and thus took the intended use, namely, the sale of lots for homes on that property to third parties, even though the property could still" }, { "docid": "14482821", "title": "", "text": "Court distinguished Richards v. Washington Terminal Co., supra, as a case of incidental damages arising from a legalized nuisance: In that case, property owners whose lands adjoined a railroad line were denied recovery for damages resulting from the noise, vibrations, smoke and the like, incidental to the operations of the trains. In the supposed case, the line of flight is over the land. And the land is appropriated as directly and completely as if it were used for the runways themselves, [at 262, emphasis supplied] While plaintiffs may be correct in pointing out that the damages to these adjoining properties are every bit as great as the damages experienced by the parcels which are subject to an avigation easement, our jurisdiction does not extend to claims for damages from “legalized nuisance” or trespass sounding in tort. 28 U.S.C. § 1491. Plaintiffs points to Cotton Land Co. v. United States, 109 Ct. Cl. 816, 75 F. Supp. 232 (1948), which involved the eventual flooding of plaintiff’s land through erection of a dam. Since the flooding did not occur directly from erection of the dam, but rather through a chain of events occurring in a natural order, but originally set in motion by the erection of the dam, the Government defended on the theory that erection of the dam was too remote a cause on which to base liability. The Court concluded that there had been a fifth amendment taking. We rejected the “remoteness of cause” defense by pointing out that the flooding of the land was foreseeable. We looked to the law of torts on the remoteness issue, and found no intervening cause breaking the chain of causation. The Court concluded that the flooding was the “actual and natural consequence of the Government’s act.” But in that case, it must be remembered that there was an actual invasion of the surface of plaintiff’s land, and that plaintiff’s land was made subject to an actual servitude. No case supports plaintiffs’ position here advanced that physical invasion of sound and shock waves constitutes an actual physical taking rather than merely nuisance or trespass." }, { "docid": "15708479", "title": "", "text": "Klein v. United States, supra. . Ferrell v. United States, 49 Ct.Cl. 222; Dick v. United States, Ct.Cl., 169 F.Supp. 491; Bacon v. United States, No. 333-58, Ct.Cl., 295 F.2d 936. WHITAKER, Judge (concurring). I think the reason my brethren and I disagree in our view of this case lies in this: The majority recognizes that the flights of the B-36’s over plaintiffs’ dwelling did interfere with plaintiffs’ use and enjoyment of it. The court finds as a fact: “* * * After November 1951 the value of the property was diminished (by an amount not shown by the record) by the low flights of B-36 bombers over it. The highest and best use of the property as wheat acreage, and its value therefor, remained the same, but its usefulness for residential purposes was reduced. “In March 1957, before the commencement of flights by B-52 and KC-135 jet aircraft, the highest and best use of plaintiffs’ premises was still for agricultural purposes with some residual value of the improvements thereon for residential purposes in connection with the operation of an owner-occupied farm.” If that is true, then there was a taking at that time of an easement of flight over plaintiffs’ property at the lowest altitude at which these planes were accustomed to fly. This is the holding of the Supreme Court in Portsmouth Harbor Land & Hotel Co. v. United States, 260 U.S. 327, 43 S.Ct. 135, 67 L.Ed. 287, and in United States v. Causby, 328 U.S. 256, 66 S.Ct. 1062, 90 L.Ed. 1206. See also Highland Park, Inc. v. United States, 161 F.Supp. 597, 142 Ct.Cl. 269. In the Causby case the Supreme Court, after having said that the United States conceded that if the flights over plaintiffs’ property rendered it uninhabitable there would be a taking, said [328 U.S. 256, 66 S.Ct. 1066]: “There is no material difference between the supposed case and the present one, except that here enjoyment and use of the land are not completely destroyed. But that does not seem to us to be controlling. The path of glide for airplanes might" }, { "docid": "11135866", "title": "", "text": "plaintiffs’ chickens to fly into walls from fright and be killed. 328 U.S. at 259, 66 S.Ct. 1062. The government’s actions were held to amount to a compensable taking despite the fact that “enjoyment and use of the land [was] not completely destroyed.” Id. at 262, 66 S.Ct. 1062. The Supreme Court reasoned that [t]he path of glide for airplanes might reduce a valuable factory site to grazing land, an orchard to a vegetable patch, a residential section to a wheat field. Some value would remain. But the use of the airspace immediately above the land would limit the utility of the land and cause a diminution in its value. 328 U.S. at 262, 66 S.Ct. 1062 (emphasis added). Similarly, in Reed Island, this court found a taking where a government-imposed geographic margin of safety attendant to active operation of a munitions-loading facility “effectively forestalled” habitation on the landowner’s property, and thus took the intended use, namely, the sale of lots for homes on that property to third parties, even though the property could still be put to other limited uses. See 67 Fed.Cl. at 35 & n. 12. Here, as in those cases, the government, by persistent flows affecting the Management Area, disrupted the Commission’s uses and thereby appropriated a property interest. Accordingly, the government’s contention that the Commission “continued to use its property as the [Management Area] as they had before the deviations and after the deviations,” Cl. Tr. 50:19-21, is not accepted. Instead, the Commission was effectively deprived of its right to full enjoyment of its property during the period of the deviations. As the Supreme Court observed in Pum-pelly, [i]t would be a very curious and unsatisfactory result, if ... it shall be held that if the government refrains from the absolute conversion of real property to the uses of the public it can destroy its value entirely, can inflict irreparable and permanent injury to any extent, can, in effect, subject it to total destruction without making any compensation, because, in the narrowest sense of that word, it is not taken for the public use. Such" }, { "docid": "7252058", "title": "", "text": "operation of an owner-occupied farm. If that is true, then there was a taking at that time of an easement of flight over plaintiffs’ property at the lowest altitude at which these planes were accustomed to fly. This is the holding of the Supreme Court in Portsmouth Co. v. United States, 260 U.S. 327, and in United States v. Causby, 328 U.S. 256. See also Highland Park, Inc. v. United States, 142 Ct. Cl. 269. In the Gausby case the Supreme Court, after having said that the United States conceded that if the flights over plaintiffs’ property rendered it uninhabitable there would be a taking, said: There is no material difference between the supposed case and the present one, except that here enjoyment and use of the land are not completely destroyed. But that does not seem to us to be controlling. The path of glide for airplanes might reduce a valuable factory site to grazing land, an orchard to a vegetable patch, a residential section to a wheat field. Some value would remain. But the use of the airspace immediately above the land would limit the utility of the land and cause a diminution in its value. That was the philosophy of Portsmouth Co. v. United States, 260 U.S. 327. In that case the petition alleged that the United States erected a fort on nearby land, established a battery and a fire control station there, and fired guns over petitioner’s land. The Court, speaking through Mr. Justice Holmes, reversed the Court of Claims, which dismissed the petition on a demurrer, holding that “the specific facts set forth would warrant a finding that a servitude has been imposed.” 260 U.S. p. 330. And see Delta Air Corp. v. Kersey, 193 Gra. 862, 20 S.E. 2d 245. Cf. United States v. 357.25 Acres of Land, 55 F. Supp. 461. The majority says this was a partial taking and that another taking took place when the all-jet B-52 planes began flying over the property in 1951. This is the point of departure between them and me. When defendant began flying planes over" }, { "docid": "22676720", "title": "", "text": "ownership of it — would be destroyed. It would not be a case of incidental damages arising from a legalized nuisance such as was involved in Richards v. Washington Terminal Co., 233 U. S. 546. In that case, property owners whose lands adjoined a railroad line were denied recovery for damages resulting from the noise, vibrations, smoke and the like, incidental to the operations of the trains. In the supposed case, the line of flight is over the land. And the land is appropriated as directly and completely as if it were used for the runways themselves. There is no material difference between the supposed case and the present one, except that here enjoyment and use of the land are not completely destroyed. But that does not seem to us to be controlling. The path of glide for airplanes might reduce a valuable factory site to grazing land, an orchard to a vegetable patch, a residential section to a wheat field. Some value would remain. But the use of the airspace immediately above the land would limit the utility of the land and cause a diminution in its value. That was the philosophy of Portsmouth Co. v. United States, 260 U. S. 327. In that case the petition alleged that the United States erected a fort on nearby-land, established a battery and a fire control station there, and fired guns over petitioner’s land. The Court, speaking through Mr. Justice Holmes, reversed the Court of Claims, which dismissed the petition on a demurrer, holding that “the specific facts set forth would warrant a finding that a servitude has been imposed.” 260 U. S. p. 330. And see Delta Air Corp. v. Kersey, 193 Ga. 862, 20 S. E. 2d 245. Cf. United States v. 357.25 Acres of Land, 55 F. Supp. 461. The fact that the path of glide taken by the planes was that approved by the Civil Aeronautics Authority does not change the result. The navigable airspace which Congress has placed in the public domain is “airspace above the minimum safe altitudes of flight prescribed by the Civil Aeronautics" }, { "docid": "21981648", "title": "", "text": "properties without just compensation in violation of the Fifth and Fourteenth Amendments in that the operation of the airport and of the jet planes which fly in and out of it has substantially impaired the value of plaintiffs’ properties for residential use. They ask that they be awarded compensation for that reduction in value, and that defendants, by the process referred to as “inverse condemnation,” upon payment of such compensation, be given an easement in plaintiffs’ properties to permit defendants to continue to “use” them in the manner in which they are using them now. This contention raises the most difficult question in this case. The “taking” doctrine, as far as airports and aircraft are concerned, derives from the Supreme Court’s decisions in United States v. Causby, 328 U.S. 256, 66 S.Ct. 1062, 90 L.Ed. 1206 (1946), and Griggs v. Allegheny County, Pa., 369 U.S. 84, 82 S.Ct. 531, 7 L.Ed.2d 585 (1962). These decisions have since been interpreted and applied in a number of cases most of which have been suits under the Tucker Act, 28 U.S.C. § 1346(a) (2), against the United States arising out of operations at military air bases. Causby held that an easement in plaintiff’s land was taken by the United States, in the constitutional sense, when heavy bombers from a neighboring base, upon takeoff and landing, “frequently” passed over plaintiff’s land “in considerable numbers,” as low as 83 feet, thereby subjecting plaintiff to noise and glare and causing-plaintiff’s chickens to panic and kill themselves by flying into walls. The Court made several statements which, because of their importance for later cases and the present one, are quoted in full. It said (328 U.S. at 262, 66 S.Ct. at 1066): “In the supposed case, the line of flight is over the land. And the land is appropriated as directly and com pletely as if it were used for the runways themselves. “There is no material difference between the supposed case and the present one, except that here enjoyment and use of the land are not completely destroyed. But that does not seem to us to" }, { "docid": "22676718", "title": "", "text": "est solum ejus est usque ad coelum. But that doctrine has no place in the modern world. The. air is a public highway, as Congress has declared. Were that not true, every transcontinental flight would subject the operator to countless trespass suits. Common sense revolts at the idea.. To recognize such private claims to the airspace would clog these highways, seriously interfere with their control and development in the public interest, and transfer into private ownership that to which only the public has a just claim. But that general principle does not control the present case. For the United States conceded on oral argument that if the flights over respondents’ property rendered it uninhabitable, there would be a taking compensable under the Fifth Amendment. It is the owner’s loss, not the taker’s gain, which is the measure of the value of the property taken. United States v. Miller, 317 U. S. 369. Market value fairly determined is the normal measure of the recovery. Id. And that value may reflect the use to which the land could readily be converted, as well as the existing use. United States v. Powelson, 319 U. S. 266, 275, and cases cited. If, by reason of the frequency and altitude of the flights, respondents could not use this land for any purpose, their loss would be complete. It would be as complete as if the United States had entered upon the surface of the land and taken exclusive possession of it. We agree that in those circumstances there would be a taking. Though it would be only an easement of flight which was taken, that easement, if permanent and not merely temporary, normally would be the equivalent of a fee interest. It would be a definite exercise of complete dominion and control over the surface of the land. The fact that the planes never touched the surface would be as irrelevant as the absence in this day of the feudal livery of seisin on the transfer of real estate. The owner’s right to possess and exploit the land — that is to say, his beneficial" }, { "docid": "15708481", "title": "", "text": "reduce a valuable factory site to grazing land, an orchard to a vegetable patch, a residential section to a wheat field. Some value would remain. But the use of the airspace immediately above the land would limit the utility of the land and cause a diminution in its value. That was the philosophy of Portsmouth Harbor Land & Hotel Co. v. United States, 260 U.S. 327, 43 S.Ct. 135, 67 L.Ed. 287. In that case the petition alleged that the United States erected a fort on nearby land, established a battery and a fire control station there, and fired guns over petitioner’s land. The Court, speaking through Mr. Justice Holmes, reversed the Court of Claims, which dismissed the petition on a demurrer, holding that ‘the specific facts set forth would warrant a finding that a servitude has been imposed.’ 260 U.S. at page 330, 43 S.Ct. at page 137, 67 L.Ed. 287. And see Delta Air Corp. v. Kersey, 193 Ga. 862, 20 S.E.2d 245, 140 A.L.R. 1352. Cf. United States v. 357.25 Acres of Land, D.C., 55 F.Supp. 461.” The majority says this was a partial taking and that another taking took place when the all-jet B-52 planes began flying over the property in 1957. This is the point of departure between them and me. When defendant began flying planes over plaintiffs’ dwelling at an altitude and of a character that interfered with plaintiffs’ use and enjoyment of it to an extent sufficient to diminish the value thereof, it thereby took an easement of flight, not only for planes of the character it was then using, but for any character of planes it might use in the future. See Wilson v. United States, Ct.Cl. No. 114-57, decided November 2, 1960. Here there was no grant of an easement; defendant took an easement. It asserted the right under its power of eminent domain to invade plaintiffs’ property to an extent sufficient to interfere with plaintiffs’ use and enjoyment of it. But is it to be supposed that the assertion of this right was limited to the use of the B-36’s" }, { "docid": "14482820", "title": "", "text": "the wind is from the south or southeast; vibrations cause ripe citrus fruit to fall from trees growing on the properties; television reception is very poor, and it is nearly impossible to carry on conversations either in person or on the telephone; when night takeoffs are underway (which are sometimes performed at intervals of about three minutes), the residents on these properties are unable to sleep; on several occasions, clouds of dust have been thrown into the area restricting visibility sufficiently that drivers of automobiles on nearby streets must slow down to avoid possible collision. (Finding 16) From tbe facts, plaintiffs argue that these properties (Groups C, D and E) were subject to a physical invasion, the projection of vibration produced by sound waves. In the Oausby case, supra, the Supreme Court there stated: The path of glide to this runway passes directly over the property * * *. The use of the airspace immediately above the land would limit the utility of the land and cause a dimunition on its value. [Emphasis supplied] The Court distinguished Richards v. Washington Terminal Co., supra, as a case of incidental damages arising from a legalized nuisance: In that case, property owners whose lands adjoined a railroad line were denied recovery for damages resulting from the noise, vibrations, smoke and the like, incidental to the operations of the trains. In the supposed case, the line of flight is over the land. And the land is appropriated as directly and completely as if it were used for the runways themselves, [at 262, emphasis supplied] While plaintiffs may be correct in pointing out that the damages to these adjoining properties are every bit as great as the damages experienced by the parcels which are subject to an avigation easement, our jurisdiction does not extend to claims for damages from “legalized nuisance” or trespass sounding in tort. 28 U.S.C. § 1491. Plaintiffs points to Cotton Land Co. v. United States, 109 Ct. Cl. 816, 75 F. Supp. 232 (1948), which involved the eventual flooding of plaintiff’s land through erection of a dam. Since the flooding did" }, { "docid": "6960781", "title": "", "text": "with the enjoyment and use of the land.” 328 U.S. at 261, 263, 266-67, 66 S.Ct. at 1065, 1066, 1068-69. Key to the Court’s reasoning in Causby was the physical interference with the plaintiffs’ use of their land: The path of glide for airplanes might reduce a valuable factory site to grazing land, an orchard to a vegetable patch, a residential section to a wheat field. Some value would remain. But the use of the airspace immediately above the land would limit the utility of the land and cause a diminution in its value. Id. at 262, 66 S.Ct. at 1066. See also Griggs, 369 U.S. at 89, 82 S.Ct. at 533 (without some protection of superadjacent airspace, “no home could be built, no tree planted, no fence constructed, no chimney erected”). Subsequent federal cases set a rule, applied more or less in mechanical fashion, that the United States might be liable for flights below 500 feet in noncongested areas (or 1000 feet in congested areas), but that flights at higher altitudes did not interfere with the landowner’s use of the surface. See, e.g., Lacey v. United States, 219 Ct.Cl. 551, 595 F.2d 614, 616 (1979) (treating 500 feet as line of demarcation between compensable and non-compensable overflights); Aaron v. United States, 160 Ct.Cl. 295, 311 F.2d 798, 801 (1963) (allowing claims based on flights below 500 feet, while denying those based on flights over 500 feet); Matson v. United States, 145 Ct.Cl. 225, 171 F.Supp. 283, 286 (1959) (allowing recovery for flights under 500 feet). These cases found support for the 500-foot rule in the regulatory definition of “navigable airspace,” see 14 C.F.R. § 91.119(c), but other cases recognized that the United States may still take private property even where its overflights occur wholly within the “navigable airspace.” See Branning, 654 F.2d at 101-02 (allowing recovery although the overflights were wholly within navigable airspace that the United States had a right to occupy); Aaron, 311 F.2d at 801 (recognizing possibility of recovery where “travel in the navigable air space [is] so severe as to amount to a practical destruction" }, { "docid": "7252057", "title": "", "text": "Ct. Cl. 222; Dick v. United States, 144 Ct. Cl. 424; 169 F. Supp. 491; Bacon v. United States, this day decided post, p. 441, 295 F. 2d 936. Whitaker, Judge, concurring: I think the reason my brethren and I disagree in our view of this case lies in this: The majority recognizes that the flights of the B-36’s over plaintiffs’ dwelling did interfere with plaintiffs’ use and enjoyment of it. The court finds as a fact: * * * After November 1951 the value of the property was diminished (by an amount not shown by the record) by the low flights of B-36 bombers over it. The highest and best use of the property as wheat acreage, and its value therefor, remained the same, but its usefulness for residential purposes was reduced. In March 1957, before the commencement of flights by B-52 and KO-135 jet aircraft, the highest and best use of plaintiffs’ premises was still for agricultural purposes with some residual value of the improvements thereon for residential purposes in connection with the operation of an owner-occupied farm. If that is true, then there was a taking at that time of an easement of flight over plaintiffs’ property at the lowest altitude at which these planes were accustomed to fly. This is the holding of the Supreme Court in Portsmouth Co. v. United States, 260 U.S. 327, and in United States v. Causby, 328 U.S. 256. See also Highland Park, Inc. v. United States, 142 Ct. Cl. 269. In the Gausby case the Supreme Court, after having said that the United States conceded that if the flights over plaintiffs’ property rendered it uninhabitable there would be a taking, said: There is no material difference between the supposed case and the present one, except that here enjoyment and use of the land are not completely destroyed. But that does not seem to us to be controlling. The path of glide for airplanes might reduce a valuable factory site to grazing land, an orchard to a vegetable patch, a residential section to a wheat field. Some value would remain. But" }, { "docid": "316670", "title": "", "text": "south or southeast; vibrations cause ripe citrus fruit to fall from trees growing on the properties; television reception is very poor, and it is nearly impossible to carry on conversations either in person or on the telephone; when night takeoffs are underway (which are sometimes performed at intervals of about three minutes), the residents on . these properties are unable to sleep; on several occasions, clouds of dust have been thrown into the area restricting visibility sufficiently that drivers of automobiles on nearby streets must slow down to avoid possible collision.” (Finding 16) From the facts, plaintiffs argue that these properties (Groups C, D and E) were subject to a physical invasion, the projection of vibration produced by sound waves. In the Causby case, supra, the Supreme Court there stated: “The path of glide to this runway passes directly over the property * * [T]he use of the airspace immediately above the land would limit the utility of the land and • cause a diminution in its value.” [Emphasis supplied] The Court distinguished Richards v. Washington Terminal Co., supra, as a case of incidental damages arising from a legalized nuisance: “In that case property owners whose lands adjoined a railroad line were denied recovery for damages resulting from the noise, vibrations, smoke and the like, incidental to the operations of the trains. In the supposed case the line of flight is over the land. And the land is appropriated as directly and completely as if it were used for the runways themselves. [328 U.S. at 262, 66 S.Ct. at 1066, 90 L.Ed. 1206, emphasis supplied] ” While plaintiffs may be correct in pointing out that the damages to these adjoining properties are every bit as great as the damages experienced by the parcels which are subject to an avigation easement, our jurisdiction does not extend to claims for damages from “legalized nuisance” or trespass sounding in tort. 28 U.S.C. § 1491. Plaintiffs point to Cotton Land Co. v. United States, 75 F.Supp. 232, 109 Ct.Cl. 816 (1948), which involved the eventual flooding of plaintiff’s land through erection of a dam." }, { "docid": "22676719", "title": "", "text": "could readily be converted, as well as the existing use. United States v. Powelson, 319 U. S. 266, 275, and cases cited. If, by reason of the frequency and altitude of the flights, respondents could not use this land for any purpose, their loss would be complete. It would be as complete as if the United States had entered upon the surface of the land and taken exclusive possession of it. We agree that in those circumstances there would be a taking. Though it would be only an easement of flight which was taken, that easement, if permanent and not merely temporary, normally would be the equivalent of a fee interest. It would be a definite exercise of complete dominion and control over the surface of the land. The fact that the planes never touched the surface would be as irrelevant as the absence in this day of the feudal livery of seisin on the transfer of real estate. The owner’s right to possess and exploit the land — that is to say, his beneficial ownership of it — would be destroyed. It would not be a case of incidental damages arising from a legalized nuisance such as was involved in Richards v. Washington Terminal Co., 233 U. S. 546. In that case, property owners whose lands adjoined a railroad line were denied recovery for damages resulting from the noise, vibrations, smoke and the like, incidental to the operations of the trains. In the supposed case, the line of flight is over the land. And the land is appropriated as directly and completely as if it were used for the runways themselves. There is no material difference between the supposed case and the present one, except that here enjoyment and use of the land are not completely destroyed. But that does not seem to us to be controlling. The path of glide for airplanes might reduce a valuable factory site to grazing land, an orchard to a vegetable patch, a residential section to a wheat field. Some value would remain. But the use of the airspace immediately above the land" }, { "docid": "316671", "title": "", "text": "Washington Terminal Co., supra, as a case of incidental damages arising from a legalized nuisance: “In that case property owners whose lands adjoined a railroad line were denied recovery for damages resulting from the noise, vibrations, smoke and the like, incidental to the operations of the trains. In the supposed case the line of flight is over the land. And the land is appropriated as directly and completely as if it were used for the runways themselves. [328 U.S. at 262, 66 S.Ct. at 1066, 90 L.Ed. 1206, emphasis supplied] ” While plaintiffs may be correct in pointing out that the damages to these adjoining properties are every bit as great as the damages experienced by the parcels which are subject to an avigation easement, our jurisdiction does not extend to claims for damages from “legalized nuisance” or trespass sounding in tort. 28 U.S.C. § 1491. Plaintiffs point to Cotton Land Co. v. United States, 75 F.Supp. 232, 109 Ct.Cl. 816 (1948), which involved the eventual flooding of plaintiff’s land through erection of a dam. Since the flooding, did not occur directly from erec tion of the dam, but rather through a chain of events occurring in a natural order, but originally set in motion by the erection of the dam, the Government defended on the theory that erection of the dam was too remote a cause on which to base liability. The Court concluded that there had been a fifth amendment taking. We rejected the “remoteness of cause” defense by pointing out that the flooding of the land was foreseeable. We looked to the law of torts on the remoteness issue, and found no intervening cause breaking the chain of causation. The Court concluded that the flooding was the “actual and natural consequence of the Government’s act.” But in that case, it must be remembered that there was an actual invasion of the surface of plaintiff’s land, and that plaintiff’s land was made subject to an actual servitude. No case supports plaintiffs’ position here advanced that physical invasion of sound and shock waves constitutes an actual physical taking rather" } ]

[ { "docid": "4139150", "title": "", "text": "The defendants assert also that, under the applicable Nebraska law, evidence to establish the alleged oral profit-sharing agreement was competent for the reason that “Parol evidence is admissible to show a contemporaneous oral agreement on the faith of which a written contract was executed and without which the written contract would not have been entered into.” The parol evidence rule is stated in 20 American Jurisprudence, Evidence, § 1099, as follows: “It is a general principle that where the parties to a contract have deliberately put their engagement in writing in such terms as import a legal obligation without any uncertainty as to the object or extent of such engagement, it is conclusively presumed that the entire engagement of the parties and the extent and manner of their undertaking have been reduced to writing; in other words the parol agreement is merged in the written agreement and all parol testimony of prior or contemporaneous conversations or declarations tending to substitute a new and different contract for the one evidenced by the writing is incompetent. * * *” See, also: .32 C.J.S., Evidence, § 851 and § 901; Restatement of the Law, Contracts, § 237, pages 331-332; Arman v. Structiform Engineering Co., 147 Neb. 658, 664—667, 24 N.W.2d 723, 727-728; Hoerger v. City State Bank, 151 Neb. 321, 325, 37 N.W.2d 393, 395; Union Selling Co. v. Jones, 8 Cir., 128 F. 672, 674—675; Connecticut Fire Insurance Co. v. Buchanan, 8 Cir., 141 F. 877, 897, 4 L.R.A.,N.S., 758; Frenzer v. Frenzer, 8 Cir., 2 F.2d 218, 221. The rule is recognized in Nebraska and is a part of the substantive law of that State. Theno v. National Assurance Corporation, 133 Neb. 618, 621-624, 276 N.W. 375, 377-378; Arman v. Structiform Engineering Co., supra, at page 663 of 147 Neb., at page 726 of 24 N.W.2d. In an early case, Sylvester v. Carpenter Paper Co., 55 Neb. 621, 625, 75 N.W. 1092, 1094, the Supreme Court of Nebraska held that, in the absence of fraud, mistake or ambiguity, a written agreement is “not only the best evidence, but the only competent" } ]

[ { "docid": "22968404", "title": "", "text": "they are within its scope. (3) An integrated agreement that is not binding or that is voidable and avoided does not discharge a prior agreement. But an integrated agreement, even though not binding, may be effective to render inoperative a term which would have been part of the agreement if it had not been integrated. Id.; see W. Jaeger, Williston on Contracts § 631, at 951-53 (3d ed. 1961). “The parol evidence rule is a matter of substantive law.” Schoch v. First Fidelity Bancorporation, 912 F.2d 654, 662 (3d Cir.1990) (citing Betz Lab., Inc. v. Hines, 647 F.2d 402, 405 (3d Cir.1981)); see also Fr. Winkler KG v. Stoller, 839 F.2d 1002, 1005 (3d Cir.1988) (“Despite its title, the rule is one of substantive contract law, and not one of evidence.” (citation omitted)). Since the substantive law of Pennsylvania governs this diversity case, we apply Pennsylvania’s version of the parol evidence rule. The leading Pennsylvania case on the parol evidence rule is Gianni v. R. Russel & Co., 281 Pa. 320, 126 A. 791 (1924). There, the Supreme Court of Pennsylvania wrote: Where parties, without any fraud or mistake, have deliberately put their engagements in writing, the law declares the writing to be not only the best, but the only evidence of their agreement. All preliminary negotiations, conversations and verbal agreements are merged in and superseded by the subsequent written contract, ... and unless fraud, accident or mistake be averred, the writing constitutes the agreement between the parties, and its terms cannot be added to nor subtracted from by parol evidence. The writing must be the entire contract between the parties if parol evidence is to be excluded, and to determine whether it is or not the writing will be looked at, and if it appears to be a contract complete within itself, couched in such terms as import a complete legal obligation without any uncertainty as to the object or extent of the engagement, it is conclusively presumed that the whole engagement of the parties, and the extent and manner of their undertaking, were reduced to writing. Id. 126" }, { "docid": "22873261", "title": "", "text": "the pipe line company and to require- it specifically to perform the contract. The district court entered its decree granting the relief prayed. The Circuit Court of Appeals reversed and remanded the case with directions to dismiss the bill. 39 F. (2d) 408. . The question is whether the contract is unenforceable because contrary to public policy of Arkansas. The general rule is that competent persons shall have the utmost liberty of contracting and that their agreements voluntarily and fairly made shall be held valid ¿nd enforced in the courts. Printing Company v. Sampson, L. R. 19 Eq. 462, 465. Baltimore & Ohio Southwestern Ry. v. Voigt, 176 U. S. 498, 505. The meaning of the phrase “public policy” is vague and variable; courts have not defined it and there is no fixed rule by which to determine what contracts are repugnant to it. The principle that contracts in contravention of public policy are not enforceable should be applied with caution and only in cases plainly within the reasons on which that doctrine rests. It is only because of the dominant public interest that one who, like respondent, has had the benefit of performance by the other party will be permitted to avoid his own promise. Steele v. Drummond, 275 U. S. 199, 205. B. & W. Taxi. Co. v. B. & Y. Taxi. Co., 276 U. S. 518, 528. Holman v. Johnson, 1 Cowp. 341, 343. In determining whether the contract here in question contravenes the public policy of Arkansas, the constitution, laws and judicial decisions of .that State and as well the applicable principles of the common law are to be considered. Primarily it is for the lawmakers to determine the public policy of the State. Kellogg v. Larkin, 3 Pin. (Wis.) 123, 136. Buck v. Walter, 115 Minn. 239, 244; 132 N. W. 205. McNamara v. Gargett, 68 Mich. 454, 460-461; 36 N. W. 218. People ex rel. Peabody v. Chicago Gas Trust Co., 130 Ill. 268, 294; 22 N. E. 798. The constitution of Arkansas (Art II, § 19) declares: “Perpetuities and monopolies are contrary to" }, { "docid": "14861032", "title": "", "text": "asking this Court to intrude upon the exclusive jurisdiction of the Oklahoma Corporation Commission. Defendant in effect asks this Court to either predict that the Corporation Commission would not permit the cost of gas or the payment obligation under this contract to be passed on to utility customers through increased rates or an increase in rate base, or to make a predictive judgment that if the Corporation Commission permits Defendant’s take-or-pay liability under this contract and the estimated take- or-pay liabilities of ONEOK Inc. and Oklahoma Natural Gas Company to be passed on to utility customers in the form of increased rates or by increasing the utility’s rate base, the rates to customers will be excessive and unreasonable. This it will not do. Nor will the Court nullify Defendant’s contract to insure the financial integrity of a public utility which is not even a party to the contract. Protection of a public utility’s financial integrity is initially within the authority and duties of the Corporation Commission through its rate-making function. Moreover, the Oklahoma Supreme Court’s recognition of both a strong public policy of freedom of contract and the carefully circumscribed circumstances in which a contract may be judicially voided for public policy reasons convince the Court that Defendant’s public policy defense is insufficient as a matter of law. See R. W. Hart & Co. v. Harris, 183 Okl. 588, 83 P.2d 565, 568 (1938) (whether a contract is against public policy is a question of law for the Court to determine from all of the circumstances of the case). “Public policy requires that competent persons ‘shall have the utmost liberty of contracting, and their contracts, when entered into fairly and voluntarily, shall be held sacred, and shall be enforced by courts of justice.’ ” Id., quoting Printing and Numerical Registering Co. v. Sampson, L.R. 19 Eg. 462, 465 [21 Eng.Rul.Cas. 696]. [T]he right of private contract is no small part of the liberty of the citizen, and ... the usual and most important function of courts of justice is rather to maintain and enforce contracts, than to enable parties thereto" }, { "docid": "14487685", "title": "", "text": "is embodied in a single document, the very essence of the obligation is its validity and enforcement. Hence an agreement, alleged to have been a part of the transaction, that the obligation should not be used as binding or enforceable can never be permitted to be shown, for the writing necessarily determines that very subject to the contrary; in the ordinary phrase, it is necessarily inconsistent with the writing.” Wigmore on Evidence (2d Ed.) vol. 5, § 2435. Defendant relies upon a line of eases, of which Burke v. Dulaney, 153 U. S. 228, 14 S. Ct. 816, 38 L. Ed. 698, is typical, which apply the rule that “parol evidence is admissible to show that a written paper which, in form, is a complete contract, of which there had been a manual tradition, was, nevertheless, not to become a binding contract until the performance of some condition precedent resting in parol.” That rule is well established, but it has no application here. Defendant, by the evidence offered', is not seeking to show a conditional delivery of the contract or bond, but to contradict their express provisions by showing that they were never intended, under any circumstances, to have any binding force whatever. The rule applicable here is well stated in Ruling Case Law as follows: “Where the law requires a written instrument, or where parties adopt that mode of contracting, it is a matter of principle and policy to prevent inferior evidence from being used, either as a substitute for or an alteration of the written contract. Having deliberately put their engagements into writing, in such terms as import a legal obligation, without any uncertainty as to the object or extent of the engagement, it is conclusively presumed that the whole engagement of the parties and the extent and manner of their undertaking, have been reduced to writing, and parol evidence is not permitted to vary or contradict the terms of such ■writing, or to substitute a new or different contract for it.” 10 R. C. L. 1018. Nothing would be gained by reviewing the many cases in which" }, { "docid": "22376272", "title": "", "text": "& Coke Co. v. Peoples' Gas-Light & Coke Co., 121 Illinois, 530; St. Louis v. St. Louis Gas-Light Co., 70 Missouri, 69. Hence, while it is justly urged that those rules which say that-a“given contract, is against public policy, should not be arbitrarily extended so as to interfere with the freedom of contract, Printing &c. Registering Co. v. Sampson, L. R. 19 Eq. 462, yet in the instance of- business of such character that it presumably cannot be restrained to any extent whatever without prejudice to the public interest, courts decline to enforce or sustain contracts imposing such restraint, however partial, because in contravention of public policy. This subject is much considered, and the authorities cited in West Virginia Transportation Co. v. Ohio River Pipe Line Co., 22 West Va. 600; Chicago &c Gas Co. v. Peoples' Gas Co., 121 Illinois, 530; Western Union Telegraph Co. v. American Union Telegraph Co., 65 Georgia, 160. The decision in Mitchel v. Reynolds, 1. P. Wms. 181; S. C. Smith’s Leading Cases, 407, 7th Eng. Ed.; 8th Am. Ed. 756, is the foundation of the rule in relation to the invalidity of contracts in restraint of trade; but as it was made under a condition of things, and a state of society, different' from those which now prevail, the rule laid down is not regarded as inflexible, and has been considerably modified. Public welfare is first considered, and if it be not involved, and the restraint upon one party is not greater than protection to the other party requires, the contract may be sustained. The question is, whether, under the particular circumstances of the case and the nature of the particular contract involved in it, the contract is, or is not, unreasonable. Rousillon v. Rousillon, 14 Ch. D. 351 ; Leather Cloth Co. v. Lorsont, L. R. 9 Eq. 345. “ Oases must be judged according to their circumstances,” remarked Mr. Justice Bradley in Oregon Steam Navigation Co. v. Winsor, 20 Wall. 64, 68, “and can only be rightly judged when the reason and grounds of the rule are carefully considered. There are" }, { "docid": "13521343", "title": "", "text": "Phenix Insurance Co., 129 U. S. 397, 9 S. Ct. 469, 32 L. Ed. 788; Railroad Co. v. Lockwood, 17 Wall. 357, 359, 363, 384, 21 L. Ed. 627. It is a fundamental principle of that law that common carriers are bound to exercise the utmost care and diligence in the performance of their duties. The courts of the United States recognize the fact that a common carrier and his customer do not stand upon a footing of equality, and that the individual customer has no real freedom of choice. “He cannot afford to higgle or stand out.” He prefers to accept any bill of lading the carrier tenders him, for in many cases he has no alternative; and it is against the policy of the law to allow a public carrier to abandon its obligations to the public by stipulating for exemptions which are unreasonable, and which excuse it from negligence in the performance of its duty. That such contracts are illegal and void under our law is well settled. See Railway Co. v. Stevens, 95 U. S. 655, 24 L. Ed. 535; Baltimore & Ohio Southwestern Ry. Co. v. Voigt, 176 U. S. 498, 505, 20 S. Ct. 385, 44 L. Ed. 560; Santa Fe, Prescott & Phenix Ry. Co. v. Grant Brothers Construction Co., 228 U. S. 177, 184, 33 S. Ct. 474, 57 L. Ed. 787; Pierce Co. v. Wells, Fargo & Co., 236 U. S. 278, 283, 35 S. Ct. 351, 59 L. Ed. 576; Norfolk Southern R. R. Co. v. Chatman, 244 U. S. 276, 37 S. Ct. 499, 61 L. Ed. 1131, L. R. A. 1917F, 1128. But an, agreement that the carrier shall not be liable for negligence, unless the injured party or his representative gives notice in writing of his claim within a specified period, is good under our law if the period named is a reasonable one. Gooch v. Oregon Short Line R. R. Co., 258 U. S. 22, 42 S. Ct. 192, 66 L. Ed. 443; Southern Pacific Co. v. Stewart, 248 U. S. 446, 449, 450, 39 S." }, { "docid": "22873260", "title": "", "text": "glass company upon condition that the same character of service be given to it that was given to other industries. All the agreements, save that of the glass company to continue to take its requirements of gas from the pipe line company, have been fully performed. The cost of the additional line constructed to serve the glass plant was $4,489.92. The oil company brought in seven wells while the suits were pending and twelve more after the contract was made. The gas from these was made available to the pipe line company for the service of its customers including the glass company. The latter took gas as agreed until January 2, 1929. About that time a company controlled by it completed a pipe line from gas fields to the glass plant. The glass company asserted that the contract was invalid because contrary to public policy and began to take practically all the gas it needed from its own subsidiary. Petitioners brought this suit to enjoin the glass company from taking gas from anyone other than the pipe line company and to require- it specifically to perform the contract. The district court entered its decree granting the relief prayed. The Circuit Court of Appeals reversed and remanded the case with directions to dismiss the bill. 39 F. (2d) 408. . The question is whether the contract is unenforceable because contrary to public policy of Arkansas. The general rule is that competent persons shall have the utmost liberty of contracting and that their agreements voluntarily and fairly made shall be held valid ¿nd enforced in the courts. Printing Company v. Sampson, L. R. 19 Eq. 462, 465. Baltimore & Ohio Southwestern Ry. v. Voigt, 176 U. S. 498, 505. The meaning of the phrase “public policy” is vague and variable; courts have not defined it and there is no fixed rule by which to determine what contracts are repugnant to it. The principle that contracts in contravention of public policy are not enforceable should be applied with caution and only in cases plainly within the reasons on which that doctrine rests. It" }, { "docid": "22814975", "title": "", "text": "Cravens v. Rodgers, 101 Mo. 247. Montana Union Ry. Co. v. Langlois, 9 Mont. 419. Hack & Bus Co. v. Sootsma, 84 Mich. 194. But in each of the last three cases the conclusion rests, at least in part, upon a provision of state statute or constitution. Arrangements similar in principle to that before us are sustained in English courts. Perth General Station Committee v. Ross, L. R. App. Cas. (1897) 479. In re Beadell, 2 C. B. (N. S.) 509. Barker v. Midland Ry. Co., 18 C.B. 45. The cases cited show that the decisions of the Kentucky Court of Appeals holding such arrangements invalid are contrary to the common law as generally understood and applied. And we are of opinion that petitioner here has failed to show any valid ground for disregarding this contract and that its interference cannot be justified. Care is to be observed lest the doctrine that a contract is void as against public policy be unreasonably extended. Detriment to the public interest is not be presumed in the absence of showing that something improper is done or contemplated. Steele v. Drummond, 275 U. S. 199. And it is to be remembered, as stated by Sir George Jessel, M. R., in Printing Company v. Sampson, L. R. 19 Eq. 462, 465, that public policy requires that competent persons “ shall have the utmost liberty of contracting, and that their contracts, when entered into fairly and voluntarily shall be held sacred, and shall be enforced by Courts of justice.” The station grounds belong to the railroad company and it lawfully may put them into any use that does not interfere with its duties as a common carrier. The privilege granted to respondent does not impair the railroad company’s service to the public or infringe any right of other taxicabmen to transport passengers to and from the station. While it gives the respondent advantage in getting business, passengers are free to engage anyone who may be ready to serve them. The carrying out of such contracts generally makes for good order at railway sta tions, prevents annoyance," }, { "docid": "21504999", "title": "", "text": "writing, signed by the parties. No evidence was offered to modify or deny it. In such a state of a case Mr. Jifstice Mitchell of the Supreme Court of Minnesota admirably stated the applicable law in Thompson v. Libby, 34 Minn. 374, 377, 26 N. W. 1, 2, in these words: “The only criterion of the comjjleteness of the written contract as a full expression of the agreement of the parties is the writing itself. If it imports on its face to be a complete expression of the whole agreement— that is, contains such language as imports a complete legal obligation — it is to be presumed that the parties have introduced into it every material item and term.” Chief Justice Puller in Seitz v. Brewers’ Refrigerating Co., 141 U. S. 510, 517, 12 S. Ct. 46, 48 (35 L. Ed. 837), delivering the opinion of the Supreme Court, said: “And when the writing itself upon its faee is couched in such terms as import a complete legal obligation without any uncertainty as to the object or extent of the engagement, it is conclusively presumed that the whole engagement of the parties, and the extent and manner of their undertaking, were reduced to writing.” Cold Blast Transp. Co. v. Kansas City Bolt & Nut Co. (C. C. A.) 114 F. 77, 80, 81, 57 L. R. A. 696; Union Selling Co. v. Jones (C. C. A.) 128 F. 672, 674, 675; Silver King Coalition Mines Co. v. Silver King C. M. Co. (C. C. A.) 204 F. 166, 173, 174, Ann. Cas. 1918B, 571; Sioux Falls Nat. Bank v. Klaveness (C. C. A.) 264 F. 40, 42; Century Electric Co. v. Detroit Copper & B. R. Mills (C. C. A.) 264 F. 49, 51, 52; El Dorado Refining Co. v. Lientz (C. C. A.) 7 F.(2d) 814, 818. Counsel for the receiver (one of the receivers having resigned since the payment) argue that the contract was revocable at any time before it was completely performed, that it was revoked by the appointment of the receivers and that thereafter Mr. Geddes" }, { "docid": "22622828", "title": "", "text": "as said by Sir G. Jessel, Master of the Nolls, in Printing &c. Company v. Sampson, L. R. 19 Eq. 462, “ if there is one thing which more than another public policy requires it is that men of full age and competent understanding shall have the utmost liberty of contracting, and their contracts when entered into freely and voluntarily shall be held sacred and shall be enforced by courts of justice.” The remedy intended to be accomplished by the act of Congress was to shield against the danger of contract or combi nation by the few against the interest of the many and to the detriment of freedom. The construction now given, I think, strikes down the interest of the many to the advantage and benefit of the few. It has been held in a case involving a combination among workingmen, that such combinations are embraced in the act of Congress in question, and this view was not doubted by this court. In re Debs, 64 Fed. Rep. 724, 745-755; 158 U. S. 564. The interpretation of the statute, therefore, which holds that reasonable agreements are within its purview, makes it embrace every peaceable organization or combination of the laborer to benefit his condition either by obtaining an increase of wages or diminution of the hours of labor. Combinations among labor for this purpose were treated as illegal under the construction of the law. which included reasonable contracts within the doctrine of the invalidity of contract or combinations in restraint of trade, and they were only held not to be embraced within that doctrine either by statutory exemption therefrom or by the progress which made reason the controlling factor on the subject. It follows that the construction which reads the rule of reason out of the statute embraces within its inhibition every contract or combination by which' workingmen seek to peaceably better .their condition. It is therefore, as I see it, absolutely true to say that the construction now adopted which works out such results not only frustrates the plain purpose intended to be accomplished by Congress, but also" }, { "docid": "22622827", "title": "", "text": "at least gravely impairs, both the liberty of the individual to contract and the freedom of trade ? If the rule of reason no longer determines the right of the individual to contract or secures the validity of contracts upon which trade depends and results, what becomes of the liberty of the citizen or of the freedom of trade? Secured no longer by the law of reason, all these rights become subject, when questioned, to the mere caprice of judicial authority. Thus, a law in favor of freedom of contract, it seems to me, is so interpreted as to gravely impair that freedom. Progress and not reaction was the purpose of the act of Congress. The construction now given the act disregards the whole current of' judicial authority and tests the right to contract by the conceptions of that right entertained at the time of the year-books instead of by the light of reason and the necessity of modern society. To do this violates, as I see it, the plainest conception of public policy; for as said by Sir G. Jessel, Master of the Nolls, in Printing &c. Company v. Sampson, L. R. 19 Eq. 462, “ if there is one thing which more than another public policy requires it is that men of full age and competent understanding shall have the utmost liberty of contracting, and their contracts when entered into freely and voluntarily shall be held sacred and shall be enforced by courts of justice.” The remedy intended to be accomplished by the act of Congress was to shield against the danger of contract or combi nation by the few against the interest of the many and to the detriment of freedom. The construction now given, I think, strikes down the interest of the many to the advantage and benefit of the few. It has been held in a case involving a combination among workingmen, that such combinations are embraced in the act of Congress in question, and this view was not doubted by this court. In re Debs, 64 Fed. Rep. 724, 745-755; 158 U. S. 564." }, { "docid": "11874007", "title": "", "text": "law to sales that occurred outside Missouri. This issue involves the interpretation and application of the choice-of-law provision in TMBC’s standard form contract, and thus is an issue of law reviewed de novo. See Schwan’s Sales Enters., Inc. v. SIG Pack, Inc., 476 F.3d 594, 595-96 (8th Cir. 2007). TMBC characterizes this issue as an unconstitutional extra-territorial application of Missouri penal law, arguing that “[t]o allow Missouri to control the regulation of law licenses and decide what constitutes the practice of law in other states is unprecedented” and violative of the Commerce and Full Faith and Credit Clauses of the United States Constitution. In mak ing this argument, TMBC relies on the fact that § 484.020(2) makes it a misdemeanor to engage in unauthorized law business and that the Missouri attorney-general has the right to sue for treble damages in the event the parties granted a private cause of action under the statute “neglect and fail to sue for or recover such treble amount.” Mo. Rev. Stat. § 484.020(2). The fundamental flaw in TMBC’s argu-' ment is that Missouri is not a party to this action. Missouri has not charged TMBC with any crimes, nor has the Missouri attorney general pursued an action against TMBC for treble damages arising out of its contracts with class members. Missouri makes no attempt to enforce its law extra-territorially. Thus, whether Missouri can control the regulation of law licenses extra-territorially and whether the Missouri attorney general can enforce § 484.020 extra-territorially are issues not before us. Instead, the question here is whether a corporation headquartered in Missouri can choose that Missouri law govern its conduct in standard form contracts it used nationwide. There is nothing inherently unconstitutional about enforcing a corporation’s choice to have its contractual duties governed by the law of a particular state. On the contrary, “[t]he general rule is that competent persons shall have the utmost liberty of contracting and that their agreements voluntarily and fairly made shall be held valid and enforced in the courts.” Twin City Pipe Line Co. v. Harding Glass Co., 283 U.S. 353, 356, 51 S.Ct." }, { "docid": "22772674", "title": "", "text": "unless it clearly appear that they contravene public right or the public welfare. It was well said by Sir George Jessel, M. R., in Printing &c. Co. v. Sampson, L. R. 19 Eq. 465: “ It must not be forgotten that you are not to extend arbitrarily. those rules which say that a given contract is void as being against public policy, because if there is one thing which more than another public policy requires it is that men of full age and competent understanding shall have the utmost liberty of contracting, and that their contracts, when entered into freely and voluntarily, shall be held sacred, and shall be enforced by courts of justice. Therefore, you have this paramount public policy to consider — that you are not lightly to interfere with this freedom of contract.” Upon what principle, then, did the cases relied on proceed, and are they .applicable to the present one? They were mainly two. \"First, the importance which the law justly attaches to human life and personal safety, and which therefore forbids the relaxation of care in the transportation of passengers which might be occasioned by stipulations relieving the carrier from responsibility. This principle was thus stated by Mr. Justice Bradley in the opinion of the court in the case of Railroad, Co. v. Lockwood: “In regulating the public establishment of common carriers, the great object of the law was to secure the utmost care and diligence in the performance of their important duties — an object essential to the welfare of every civilized community. Hence the common law rule which charged the common carrier as an insurer. Why charge' him as such ? Plainly for the purpose of raising the most stringent motive for the exercise of carefulness and fidelity in his trust. In regard to passengers the highest degree of carefulness and diligence is expressly exacted. In the one case the securing of the most exact diligence and fidelity .underlies the law, and is the reason for it; in the other, it is directly and absolutely prescribed by the law. It is obvious, therefore," }, { "docid": "22772673", "title": "", "text": "damages or injuries received on the train. This court held that a drover travelling on a pass, for the purpose of taking care of his stock on the train, is a passenger for hire, and that it is not lawful for a common carrier of such passenger to stipulate for exemption from responsibility for the negligence of himself or his servants. This case ha? been frequently followed, and it may be regarded as establishing a settled rule of policy. Railway Co. v. Stevens, 95 U. S. 655; Liverpool Steam Co. v. Phœnix Ins. Co., 129 U. S. 397. The principles declared in those cases are salutary, and we have no disposition to depart from them. At the same time it must not be forgotten that the right of private contract is no small part of the liberty of the citizen, and that the usual and most important function of courts of justice is rather to maintain and enforce contracts, than to enable parties thereto to escape from their obligation on the pretext of public policy, unless it clearly appear that they contravene public right or the public welfare. It was well said by Sir George Jessel, M. R., in Printing &c. Co. v. Sampson, L. R. 19 Eq. 465: “ It must not be forgotten that you are not to extend arbitrarily. those rules which say that a given contract is void as being against public policy, because if there is one thing which more than another public policy requires it is that men of full age and competent understanding shall have the utmost liberty of contracting, and that their contracts, when entered into freely and voluntarily, shall be held sacred, and shall be enforced by courts of justice. Therefore, you have this paramount public policy to consider — that you are not lightly to interfere with this freedom of contract.” Upon what principle, then, did the cases relied on proceed, and are they .applicable to the present one? They were mainly two. \"First, the importance which the law justly attaches to human life and personal safety, and which therefore" }, { "docid": "14487686", "title": "", "text": "delivery of the contract or bond, but to contradict their express provisions by showing that they were never intended, under any circumstances, to have any binding force whatever. The rule applicable here is well stated in Ruling Case Law as follows: “Where the law requires a written instrument, or where parties adopt that mode of contracting, it is a matter of principle and policy to prevent inferior evidence from being used, either as a substitute for or an alteration of the written contract. Having deliberately put their engagements into writing, in such terms as import a legal obligation, without any uncertainty as to the object or extent of the engagement, it is conclusively presumed that the whole engagement of the parties and the extent and manner of their undertaking, have been reduced to writing, and parol evidence is not permitted to vary or contradict the terms of such ■writing, or to substitute a new or different contract for it.” 10 R. C. L. 1018. Nothing would be gained by reviewing the many cases in which this rule has been applied. Some of those which we deem apropos and controlling are Peerless Coal Co. v. Steffey & Findley (C. C. A. 4th) 297 F. 829; Stang & Mitchell v. United States (C. C. A. 4th) 290 F. 136; E. I. Du Pont de Nemours & Co. v. Kelly (C. C. A. 4th) 252 F. 523; McGuire v. Gerstley, 204 U. S. 489, 27 S. Ct. 332, 51 L. Ed. 581; Van Winkle v. Crowell, 146 U. S. 42, 13 S. Ct. 18, 36 L. Ed. 880; Bofinger v. Tuyes, 120 U. S. 198, 7 S. Ct. 529, 30 L. Ed. 649; Gilbert v. Moline Plow Co., 119 U. S. 491, 7 S. Ct. 305, 30 L. Ed. 476; Richardson v. Hardwick, 106 U. S. 252, 1 S. Ct. 213, 27 L. Ed. 145; Martin v. Cole, 104 U. S. 30, 26 L. Ed. 647; Brown v. Spofford, 95 U. S. 474, 24 L. Ed. 508; Forsythe v. Kimball, 91 U. S. 291, 23 L. Ed. 352; Parish v. U. S., 75" }, { "docid": "2904593", "title": "", "text": "efficient service, but tend to impoverish the individual”). Second, tracing back through the history of Alabama’s public policy test reveals an underlying concern with the liberty of contract and, necessarily, the relative bargaining positions of the parties. In Anderson v. Blair, 202 Ala. 209, 80 So. 31 (1918), the Alabama Supreme Court noted: It must not be forgotten that you are not to extend arbitrarily those rules which say that a given contract is void as being against public policy, because, if there is one thing which more than another public policy requires, it is that men of full age and competent understanding shall have the utmost liberty of contracting, and that their contracts when entered into freely and voluntarily shall be held sacred and shall be enforced by courts of justice. Id., 80 So. at 33 (emphasis added) (quoting Printing & Numerical Registering Co. v. Sampson, 19 L.R.-Eq. 462, 465 (1875) (Jessel, M.R.)); see Lowery, 9 So.2d at 874. Obviously, the Alabama Supreme Court has considered a contract that was not “voluntarily and fairly made” to be detrimental to the public interest. See Lowery, 9 So.2d at 874; cf. Morgan v. South Central Bell Tele. Co., 466 So.2d 107, 117 (Ala.1985) (criteria used to determine whether exculpatory clause contrary to public policy include (1) relative bargaining positions, (2) whether contract of adhesion involved, and (3) whether weaker party subject to stronger party’s control). In Lowery, the court cited Baltimore & O.S. Ry. v. Voigt, 176 U.S. 498, 20 S.Ct. 385, 44 L.Ed. 560 (1900), which in turn quoted extensively from Railroad Co. v. Lockwood, 84 U.S. (17 Wall.) 357, 21 L.Ed. 627 (1873). Lockwood provides perhaps the clearest exposition of when a contract is not voluntarily and fairly made and, hence, detrimental to the public interest. Analyzing a contract that limited a common carrier’s liability for acts constituting ordinary negligence, the Court stated: The carrier and his customer do not stand on a footing of equality. The latter is only one individual of a million. He cannot afford to higgle or stand out and seek redress in the courts." }, { "docid": "2904592", "title": "", "text": "outlay and overhead operating expenses may lead to abuses hurtful to the public interest, and ultimately to a crippling of efficient services at reasonable cost.” Id., 173 So. at 16 (emphasis added). Again, in Harris v. Theus, 149 Ala. 133, 43 So. 131 (1907), the Alabama Supreme Court noted the following important considerations when it examined a contract to sell a business and a covenant not to compete: “Nothing is abandoned, and only a transfer is accomplished. The same occupation continues. The same number of mouths are fed.” Id., 43 So. at 133 (quoting Tuscaloosa Ice Mfg. Co. v. Williams, 127 Ala. 110, 28 So. 669, 671-72 (1899) (quoting in turn Oliver v. Gilmore, 52 F. 562, 568 (C.C.D. Mass.1892))). These cases clearly indicate that the Alabama courts define the “public interest” to include an interest in maintaining a supply of goods and services at a reasonable price. See James S. Kemper & Co. Southeast v. Cox & Assocs., 434 So.2d 1380, 1384 (Ala.1983) (contracts in restraint of trade “not only deprive the public of efficient service, but tend to impoverish the individual”). Second, tracing back through the history of Alabama’s public policy test reveals an underlying concern with the liberty of contract and, necessarily, the relative bargaining positions of the parties. In Anderson v. Blair, 202 Ala. 209, 80 So. 31 (1918), the Alabama Supreme Court noted: It must not be forgotten that you are not to extend arbitrarily those rules which say that a given contract is void as being against public policy, because, if there is one thing which more than another public policy requires, it is that men of full age and competent understanding shall have the utmost liberty of contracting, and that their contracts when entered into freely and voluntarily shall be held sacred and shall be enforced by courts of justice. Id., 80 So. at 33 (emphasis added) (quoting Printing & Numerical Registering Co. v. Sampson, 19 L.R.-Eq. 462, 465 (1875) (Jessel, M.R.)); see Lowery, 9 So.2d at 874. Obviously, the Alabama Supreme Court has considered a contract that was not “voluntarily and fairly" }, { "docid": "22814976", "title": "", "text": "of showing that something improper is done or contemplated. Steele v. Drummond, 275 U. S. 199. And it is to be remembered, as stated by Sir George Jessel, M. R., in Printing Company v. Sampson, L. R. 19 Eq. 462, 465, that public policy requires that competent persons “ shall have the utmost liberty of contracting, and that their contracts, when entered into fairly and voluntarily shall be held sacred, and shall be enforced by Courts of justice.” The station grounds belong to the railroad company and it lawfully may put them into any use that does not interfere with its duties as a common carrier. The privilege granted to respondent does not impair the railroad company’s service to the public or infringe any right of other taxicabmen to transport passengers to and from the station. While it gives the respondent advantage in getting business, passengers are free to engage anyone who may be ready to serve them. The carrying out of such contracts generally makes for good order at railway sta tions, prevents annoyance, serves convenience and promotes safety of passengers. D. L. & W. R. R. Co. v. Morristown, supra. There is here no complaint by or on behalf of passengers; no lack of service, unreasonable exaction or inconvenience of the public is shown. It would be unwarranted and arbitrary to assume that this contract is contrary to public interest. The grant of privileges to respondent creates no duty on the part of the railroad company to give like privileges .to others, and therefore there is no illegal discrimination. And, as the State is without power to require any part of the depot ground to be used as a public hack stand without providing just compensation therefor, then a fortiori such property may not be handed over for the use of petitioner without the consent of the owner. 5. The decree below should be affirmed unless federal courts are bound by Kentucky decisions which are directly opposed to this Court’s determination of the principles of common law properly to be applied in such cases. Petitioner argues that the" }, { "docid": "6794515", "title": "", "text": "to be valid, according to unquestionable authority. Horner v. Graves, 7 Bing. 743; Rousillon v. Rousillon, 14 Ch. Div. 351; [Oregon Steam] Nav. Co. v. Winsor, 20 Wall. 64, 67 [22 L. Ed. 315]. As said by the Supreme Court, in the case last cited, ‘eases must be judged according to their circumstances, and can only be rightly judged when the reason and grounds of the rule are carefully considered.’ “After a party has deliberately made his contract, and received the consideration therefor, it must plainly appear that it contravenes public policy before the courts will declare it void upon that ground; for, as said by the Master of' the Rolls, Sir George Jessel, in Printing Co. v. Sampson, L. R. 19 Eq. Cas., 462: ‘It must not be forgotten that we are not to extend arbitrarily those rules which say that a given contract is void, as being against public policy, because if there is one thing which more than another public policy requires, it is that men of full age and competent understanding shall have the utmost liberty of contracting, and that their contracts when entered into freely and voluntarily, shall be held sacred, and shall be enforced by courts of justice. Therefore we have this paramount public policy to consider — ■ that we are not likely to interfere with this freedom of contract.’ That is but saying that substantial justice and the obligation of contracts are entitled to superior consideration to the vague and indefinite notions of public policy, urged to avoid a contract for which the party has received full consideration. Such a defense always comes with a bad grace from a party to the contract who has received full consideration, and enjoyed the fruits of the contract that he alleges to have been made in contravention of law or principles of public policy.” (Italics supplied.) The learned counsel for appellant have very forcefully argued that the Godfrey Case, being a sales ease, is not in point, and we infer that they regard this ease as not controlling, for the reason that, in the employment" }, { "docid": "14861033", "title": "", "text": "recognition of both a strong public policy of freedom of contract and the carefully circumscribed circumstances in which a contract may be judicially voided for public policy reasons convince the Court that Defendant’s public policy defense is insufficient as a matter of law. See R. W. Hart & Co. v. Harris, 183 Okl. 588, 83 P.2d 565, 568 (1938) (whether a contract is against public policy is a question of law for the Court to determine from all of the circumstances of the case). “Public policy requires that competent persons ‘shall have the utmost liberty of contracting, and their contracts, when entered into fairly and voluntarily, shall be held sacred, and shall be enforced by courts of justice.’ ” Id., quoting Printing and Numerical Registering Co. v. Sampson, L.R. 19 Eg. 462, 465 [21 Eng.Rul.Cas. 696]. [T]he right of private contract is no small part of the liberty of the citizen, and ... the usual and most important function of courts of justice is rather to maintain and enforce contracts, than to enable parties thereto to escape from their obligation on the pretext of public policy, unless it clearly appear that they contravene public right or the public welfare. Baltimore & Ohio Southwestern Railway Co. v. Boight [Voight] 176 U.S. 498, 505, 20 S.Ct. 385, 387, 44 L.Ed. 560, 565 (1900), quoted in Telex Corp. v. Hamilton, 576 P.2d 767, 769 (Okla.1978). The power of courts to nullify contracts as in contravention of public policy is a very delicate power, to be exercised only rarely, with caution and restraint, and only in cases that are free from doubt. Shepard v. Farmers Insurance Co., 678 P.2d 250, 251 (Okla.1983); Johnston v. J.R. Watkins Co., 195 Okla. 341, 157 P.2d 755, 757 (1945); Camp v. Black Gold Petroleum Co., 189 Okla. 692, 119 P.2d 815, 817-18 (1941); R. W. Hart & Co. v. Harris, 83 P.2d at 568. Detriment to the public interest is not to be presumed, but must be clearly apparent before a court is justified in declaring a contract unenforceable on public policy grounds. See Johnston v. J.R. Watkins" } ]

[ { "docid": "16072492", "title": "", "text": "exists with respect to Linda-mood-Bell, I conclude that venue is also proper with respect to Lindamood-Bell. See 28 U.S.C. § 1391(c) (“For purposes of venue under this chapter, a defendant that is a corporation shall be deemed to reside in any judicial district in which it is subject to personal jurisdiction at the time the action is commenced.”). Nevertheless, because Lindamood-Bell also resides in California, in determining whether venue is proper with respect to Ms. Lindamood I must address the dispute regarding the proper interpretation of § 1391(b). Defendants’ motion and Plaintiffs’ response definitely raise one and possibly two questions regarding § 1391(b): (1) can § 1391(b)(2) be considered when all of the defendants reside in the same judicial district; and (2) if yes, where did “a substantial part of the events or omissions giving rise to the claim occur[ ]”? 28 U.S.C. § 1391(b)(2). As to the first question, I conclude that § 1391(b)(1), (2) provide alternative grounds for venue. As an initial matter, I note that Cobra Partners L.P. v. Liegl, 990 F.Supp. 332, 335 (S.D.N.Y.1998) adopted the same interpretation of § 1391(b) as the Canaday and Southern Marine Research decisions. I also note that the decisions in Canaday, Southern Marine Research, Inc., and Cobra Partners represent the minority view. See Gregory v. Pocono Grow Fertilizer Corp., 35 F.Supp.2d 295, 298 (W.D.N.Y.1999) (citing cases). For the reasons stated below, I conclude that Canaday, Southern Marine Research, Inc., and Cobra Partners are wrongly decided, and adopt the majority position. The Leroy decision does not mandate the outcomes in Canaday, Southern Marine Research, and Cobra Partners. In Leroy, Great Western United Corporation (“Great Western”), a Delaware corporation with its corporate headquarters in Dallas, Texas brought an action in the northern district of Texas against state officials from Idaho, New York, and Maryland for a declaratory judgment regarding the constitutionality of laws of those states that delayed Great Western’s proposed purchase of another corporation. In ruling on whether venue was proper the Supreme Court stated that “[i]n most instances the purpose of statutorily specified venue is to protect the defendant against" } ]

[ { "docid": "13206287", "title": "", "text": "...”—is the same language found in other venue-establishing statutes. See, e.g., 18 U.S.C. § 981(h) (civil forfeiture venue statute: “... may be brought in ...”); 28 U.S.C. § 1391 (general venue statute: “... may ... be brought only in ... ”); 28 U.S.C. § 1395(b) (civil forfeiture venue statute: “... may be prosecuted in ...”). Second, interpreting subsection (b)(1) as addressing only jurisdiction would be contrary to the clear, overarching congressional intent behind the legislation. See 137 Cong. Rec. S12235 (August 2, 1991) (statement by Senator D’Amato: “The first section [of Title I of the Annunzio-Wylie Act] deals with jurisdiction and venue, providing that civil forfeiture actions may be brought in the district where the illegal acts giving rise to forfeiture occurred, [emphasis added]”). Congress amended Section 1355 in order to relieve the government of the need to prosecute multiple forfeiture actions from the same case in different districts. Although interpreting Section 1355 as a jurisdiction-only statute would give the government some of the intended relief, it would not solve the problem which the Act was designed to address because the government would still have to file multiple forfeiture actions from the same ease in different districts when venue did not lie in one district for all of the property. A basic reading of the subsection’s language, as well as an understanding of the Annunzio-Wylie Act’s general purpose—as explained at 137 Cong.Rec. S16642—lead this Court to conclude that 28 U.S.C. § 1355(b)(1) establishes the Northern District of Georgia as a proper venue for this suit. VI. Claim Upon Which Relief Can be Granted. Claimants contend that Plaintiff has failed to state a claim upon which relief can be granted. Primarily, Claimants argue that Plaintiffs Complaint for Forfeiture fails to state facts showing any connection between the defendant money and the alleged unlawful activity. In reviewing a motion to dismiss a complaint for forfeiture, the Court must consider the allegations contained in the complaint for forfeiture to be true. Powell v. Lennon, 914 F.2d 1459,1463 (11th Cir.1990). The government need not trace the origin of all funds deposited into a bank" }, { "docid": "16072497", "title": "", "text": "Texas”), 185-86 (“it is the action taken in Idaho by Idaho residents ... as well as the future action that may be taken in the State by its officials ... that provides the basis for [the] claim.... In short, the District of Idaho is the only one in which ‘the claim arose’ within the meaning of § 1391(b).”). The Canaday, Southern Marine Research, and Cobra Partners interpretation fails to recognize that the Leroy court addressed where the claim in that case arose. In addition, the 1990 amendment of § 1391(b) eliminated any remaining controversy regarding how venue should be determined. In addition to changing the “claim arose” language to “a substantial part of the events or omissions giving rise to the claim,” and setting the basis for venue in separate subsections, Congress provided a new subsection— § 1391(b)(3) — and made it subordinate to the first two subsections. Congress easily could have done the same with respect to § 1391(b)(2), but it did not. This indicates Congress’ intent that § 1391(b)(1), (2) are alternative grounds for venue. The Cana-day, Southern Marine Research, and Cobra Partners decisions fail to give effect to the plain language of the statute. Finally, I note that my interpretation of § 1391(b) is consistent with that of a leading treatise. See 15 Charles A. Wright, Arthur R. Miller & Edward H. Cooper, Federal Practice and Procedure § 3804, at 16 (Supp.1999) (“The provision for residential venue, in paragraph (1) ... and the provision for transactional venue, in para graph (2) ... are in the alternative. Venue is proper if either one of those conditions is met.”); id. at § 8806, at 18 (Supp. 1999) (“It is [ ] clearer than ever that [§ 1391(b)(2)] may be used in any case and is not limited to cases in which defendants could not be sued jointly because they resided in different districts.”) For the foregoing reasons, I conclude that § 1391(b)(1), (2) are alternative grounds for venue. 2. I must next.decide where “a substantial part of the events or omissions giving rise to the claim occurred.” 28 U.S.C." }, { "docid": "1853216", "title": "", "text": "OPINION CEDARBAUM, District Judge. This is an action arising out of the purchase of certain Indiana corporations. Plaintiffs assert claims under RICO in addition to common law claims of fraud and breach of contract. Defendants move, pursuant to 28 U.S.C. § 1404(a) and 28 U.S.C. § 1406(a), to dismiss this federal question action for improper venue, or, in the alternative, to transfer it to the Northern District of Indiana. All of the defendants reside in Indiana. The issue addressed by both sides is whether 28 U.S.C. § 1391(b)(1) limits venue to the federal district in which any defendant resides in a case in which all of the defendants reside in the same state. For the reasons that follow, defendants’ motion is granted to transfer'the action to the Northern District of Indiana. 28 U.S.C. § 1391(b), the general venue statute for federal question cases, provides: A civil action wherein jurisdiction is not founded solely on diversity of citizenship may, except as otherwise provided by law, be brought only in (1) a judicial district where any defendant resides, if all defendants reside in the same State, (2) a judicial district in which a substantial part of the events or omissions giving rise to the claim occurred, or a substantial part of property that is the subject of the action is situated, or (3) a judicial district in which any defendant may be found, if there is no district in which the action may otherwise be brought (emphasis added). Canaday v. Koch, 598 F.Supp. 1139 (E.D.N.Y.1984) held that when venue is proper in a district pursuant to 28 U.S.C. § 1391(b)(1), venue does not lie elsewhere pursuant to 28 U.S.C. § 1391(b)(2). See Ca-naday, 598 F.Supp. at 1148. For the reasons set forth below, I adopt Judge Glasser’s thoughtful and persuasive reasoning in Cana-day. The purpose of statutorily specified venue is to protect defendants against the risk that a plaintiff will select an unfair or inconvenient place of trial. Leroy v. Great Western United Corp., 443 U.S. 173, 183-84, 99 S.Ct. 2710, 61 L.Ed.2d 464 (1979). Accordingly, venue statutes should be construed narrowly," }, { "docid": "3383446", "title": "", "text": "is filed in a district where: (1) any of the defendants reside, if all defendants reside in the same state; (2) a substantial part of the events or omissions giving rise to the claim occurred; or (3) the defendants are subject to personal jurisdiction at the time the action is commenced, if there is no district in which the action may otherwise be brought. See 28 U.S.C. § 1391(a). The “substantial part” language was added to § 1391(a) as part of the Judicial Improvements Act of 1990, Pub.L. No. 101-650, Title III, § 311, 104 Stat. 5114 (1990), superseding the former requirement that a diversity action be brought in the district where “the claim arose.” 28 U.S.C.S. § 1391(a) (Supp. 1994). Citing both the text of the amendments and the underlying legislative history, the Second Circuit has interpreted the Judicial Improvements Act of 1990 as clarifying Congress’ intent that Federal courts may recognize multiple venues as appropriate in a given ease. See Bates v. C & S Adjusters, Inc., 980 F.2d 865, 867 (2d Cir.1992) (citing H.R.Rep. No. 734, 101st Cong., 2d Sess. 23, reprinted in 1990 U.S.C.C.A.N. 6802, 6860, 6869); see also Jaquith v. Newhard, 1993 WL 127212 (S.D.N.Y.1993) (Leisure, J.); Schenk v. Red Sage, Inc., 1992 WL 111096 (S.D.N.Y.1992) (Leisure, J.); Generale Bank, New York Branch v. Wassel, 779 F.Supp. 310 (S.D.N.Y.1991) (Leisure, J.). In the instant case, this Court finds that since “a substantial part of the events ... giving rise to the claim,” 28 U.S.C. § 1391(a)(2), occurred in New York in the form of the trade show discussions between N.C.C. president Evanisko and Transtek representatives Silverman and Lozoya, venue is established under § 1391(a)(2). Indeed, there would have been no contract between N.C.C. and Transtek but for the Javits Center contact. Defendants’ representatives attended the trade show in New York City precisely because such a show can play a “substantial part” in the development of business relationships and subsequent contracts. Accordingly, finding venue to be properly established pursuant to 28 U.S.C. § 1391(a)(2), this Court denies defendants’ motion to dismiss for improper venue. CONCLUSION For" }, { "docid": "7141025", "title": "", "text": "§ 1391(a), which states that: (a) A civil action wherein jurisdiction is founded only on diversity of citizenship may, except as otherwise provided by law, be brought only in the judicial district where all plaintiffs or all defendants reside, or in which the claim arose. A corporate defendant is a resident of a particular judicial district for venue purposes if that company is incorporated, licensed to do business, or is doing business in that district. 28 U.S.C. § 1391(c). From the pleadings, affidavits and exhibits, the court has determined that United Coal is incorporated in Virginia, and Harbour Marine is incorporated in Ohio. While the latter may conduct some business in West Virginia, no allegations are made that it is licensed to do business or is doing business in Virginia. Thus, venue is not based on the district “where all plaintiffs reside,” because both plaintiffs do not reside in the same district. Since the defendant is a resident of West Virginia and asserts that it is not licensed to do business and it does not conduct business in Virginia, the second option for venue is inapplicable. The only relevant test for venue is where “the claim arose.” To determine where the claim arose, the court turns to the legislative history. Congress added the third venue option in 1966 with the explicit purpose of closing the venue gap created by actions brought by multiple parties. The meager history indicates that the enlargement of venue authority would facilitate the disposition of contract and tort claims by providing a more convenient forum to the litigants and the witnesses. S.Rep. No. 1752, 89th Cong., 2d Sess., reprinted in 1966 U.S. Code Cong. & Ad.News 3693, 3694; Brunette Machine Works, Ltd. v. Kockum Industries, Inc., 406 U.S. 706, 710 n. 8, 92 S.Ct. 1936, 1939 n. 8, 32 L.Ed.2d 428 (1972). Since the legislative history provides little guidance, the court examines the case law interpreting the clause. Plaintiffs urge the court to adopt the identity approach. Under that test, if a defendant is subject to jurisdiction under a state’s long-arm statute which extends jurisdiction to" }, { "docid": "677679", "title": "", "text": "Kroger Company v. Adkins Transfer Company, 284 F.Supp. 371, 377 (M.D.Tenn.1968), affd. on other grounds, 408 F.2d 813 (6 Cir. 1969). The Court believes that the issue is unlikely to be resolved by a mechanical differentiation of antitrust from other cases, and has tried instead to extract the logic from the cases interpreting Section 1391(b). Pri- or to 1966, Section 1391(b) provided that a civil action not founded solely on diversity “may be brought only in the judicial district where all defendants reside, except as otherwise provided by law.” Although the legislative history offers little insight into Congress’s purpose in laying venue alternatively in the district “in which the claim arose,” the Supreme Court has suggested that the amendment was intended to fill the “gap” in venue that existed prior to 1966. That “gap,” as described by the Supreme Court, was the occasional unavailability of any single forum in which a plaintiff could sue multiple defendants who resided in different states. Having so characterized the legislative intent, the Supreme Court concluded that “ * * * in construing venue statutes it is reasonable to prefer the construction that avoids leaving such a gap.” Brunette Machine Wks. v. Kockum Industries, 406 U.S. 706, 710 n. 8, 92 S.Ct. 1936, 1939, 32 L.Ed.2d 428 (1972) (dictum). Since the enactment of the amendment, the courts have found that an expansive reading of § 1391(b) may pose a problem which Congress did not consider in 1966. While the narrow venue grant of the pre1966 statute may, in some cases, have deprived plaintiffs of any proper forum, a generous reading of the amended statute might potentially allot some plaintiffs innumerable forums, On the one hand, in products liability cases brought against multiple defendants who reside in different districts, it may often be the case that, if the district in which the injury occurs is not recognized as that in which the claim arose for venue purposes, no forum would exist in which a plaintiff might bring a single suit against all of the defendants. On the other hand, in those suits which allege unlawful conduct" }, { "docid": "19323424", "title": "", "text": "plaintiff alleges that defendant passed off infringing goods in New York, jurisdiction exists over Choi as a non-domiciliary who “commits a tor-tious act within the state.” Though defendant’s contacts with the State are, indeed, minimal, they are sufficient to meet the requirements of New York’s long-arm statute and the Due Process Clause of the Constitution. Defendant’s second claim, challenging venue in this district, has merit. Plaintiff’s allegations of venue rest on section 1391(b) of the Judicial Code: A civil action wherein jurisdiction is not founded solely on diversity of citizenship may be brought only in the judicial district where all defendants reside, or in which the claim arose, except as otherwise provided by law. Since defendant does not reside in the Southern District of New York, plaintiff’s assertion of venue depends on whether “the claim arose” in this district. Plaintiff contends that the “plain meaning” of section 1391(b) is that venue lies in all districts where any part of the claim arises. . This interpretation, however, is supported by neither the language nor purposes of the provision. Thus a literal construction of the section, grounding venue “only in the judicial district . . in which the claim arose,” would not support the contention that venue is proper in any of several districts where part of the claim arises. Nor did Congress intend such a radical expansion of federal venue when it added the foregoing language to section 1391(b) in 1966. Rather, Congress sought “to close a ‘gap’ in the venue laws, which had [before 1966] given plaintiffs no proper venue for actions against multiple defendants residing in different districts” and to “provid[e] in some cases a more convenient forum, not only for the litigants involved, but also for the witnesses who are to testify in the case.” Neither goal indicates that Congress intended to expand federal venue to the extent that plaintiff suggests. Though rejecting plaintiff’s expansive view of section 1391(b), the Court need not adopt defendant’s very narrow reading, which would define the claim as arising only in the judicial district where defendant’s business contacts have been more substantial" }, { "docid": "2586119", "title": "", "text": "defendants reside in the Northern District. Plaintiffs cite some authority interpreting section 1392(a) to confer venue even where all defendants reside in the same district, so long as one defendant also has a residence in a different district____ However, it appears that the better view, based on the language of the section and its underlying policy, holds that where all defendants reside in the same district, section 1392(a) should not apply. 579 F.Supp. at 89 (emphasis in original) (citations and footnotes omitted). Considering the policy underlying § 1392(a) to permit a plaintiff to sue multiple defendants in a single district where otherwise he would have to bring multiple suits, id. at n. 6, the court found § 1392(a) inapplicable because the availability of the Northern District as a forum did not confront the parties with the necessity of multiple suits. The same reasoning here warrants the conclusion that venue exists only in the Southern District of New York, and that § 1392(a) is inapplicable. C. Venue Under § 1391(b) Based on Where the Claim Arose As discussed above, § 1391(b) permits venue to be found in the district “in which the claim arose” as an alternative to the district in which all defendants reside. An understanding of the applicability of this clause to the instant case is aided by a brief overview of the history of the statute. See generally 15 C. Wright, A. Miller & E. Cooper, Federal Practice & Procedure § 3806 (1976 & Supp.1984). Prior to 1966, § 1391(b) did not contain the language “or in which the claim arose.” Thus, a plaintiff could not commence suit in a district where the claim arose if no party resided there, nor could an action be transferred to such a district pursuant to 28 U.S.C. § 1404(a). Following some earlier amendments, §§ 1391(a) and (b) were amended in 1966 to close this “venue gap” by permitting a suit to be brought in or transferred to a district “in which the claim arose.” The closing of the “venue gap” which existed prior to 1966 has been addressed by the United" }, { "docid": "7747424", "title": "", "text": "a much more difficult undertaking when sophisticated multistate activities of relative complexity are in issue. The legislative history of Section 1391(b), by its very generality, is helpful in the resolution of the problem. The portion of Section 1391(b) extending venue to a district “in which the claim arose” was added by amendment in 1966, and the resulting “enlargement of venue” was intended merely to “facilitate the disposition of . claims by providing, in appropriate cases, a more convenient forum to the litigants and the witnesses involved.” The legislative concern was pragmatic: Since the place where the claim arose is the situs of events important to the case, Congress undertook “to facilitate the administration of jus tice” by permitting suit in a district where the litigation might more handily progress. This practical orientation of Section 1391(b), then, counsels against adherence to mechanical standards in its application. Rather, where “the claim arose” should in our view be ascertained by advertence to events having operative significance in the case, and a commonsense appraisal of the implications of those events for accessibility to witnesses and records. And, though a proliferation of permissible forums is staunchly to be avoided, it is evident that the often unfruitful pursuit of a single locality as the one and only district in which the claim arose is not needed to ensure the efficient conduct of the litigation. Not surprisingly, then, courts in some number have construed Section 1391(b) as conferring venue in a district where a substantial portion of the acts or omissions giving rise to the actions occurred, notwithstanding that venue might also lie in other districts. We endorse that interpretation wholeheartedly. So long as the substantial ity of the operative events is determined by assessment of their ramifications for efficient conduct of the suit — an important step upon which we would unfailingly insist — loyalty to the objectives of Section 1391(b) will be amply preserved. We come, then, to the question whether the case at bar can pass muster on that basis. Appellants seek damages for depredations assertedly inflicted in violation of 18 U.S.C. § 1385" }, { "docid": "2586123", "title": "", "text": "acceptable is that in the unusual case in which it is not clear that the claim arose in only one specific district, a plaintiff may choose between those two (or conceivably even more) districts that with approximately equal plausibility — in terms of the availability of witnesses, the accessibility of other relevant evidence, and the convenience of the defendant (but not of the plaintiff) — may be assigned as the locus of the claim. Id. (citation omitted). The court therefore left open the issue of whether a claim could arise in more than one district. Cases in this Circuit have concurred with Leroy that the “claim arose” language added to §§ 1391(a) and (b) was intended purely to fill the venue gap that had existed prior to the 1966 amendment. In Cheese-man v. Carey, supra, for example, the court stated: If venue gap filling was Congress’ only purpose in amending Sections 1391(a) and (b), it would appear that any given cause of action should be deemed to arise in only one district, since at that point the venue gap would be filled. And the most suitable analytical tool for determining in which district venue should lie would seem to be the “most significant contacts” or “weight of the contacts” approach. 485 F.Supp. at 213 (emphasis added) (citation omitted). See also id. at 212 (“[m]ultidistrict venue would appear permissible only where the claim had very substantial contacts with, or a close relationship to, each of the districts claimed as potentially appropriate”). Thus, venue based on where the claim arose would be proper in the district “where the vast majority of the acts giving rise to liability took place.” Davis v. Costa-Gavras, 580 F.Supp. 1082, 1090 (S.D.N.Y.1984). In the instant case, application of the “weight of the contacts” test would result in a finding that the plaintiffs’ claims arose in the Southern District of New York rather than in this district. All of the defendants, whose policies are challenged by plaintiffs, reside in the Southern District and set such policies there. In addition, although members of the purported class last resided in" }, { "docid": "13166385", "title": "", "text": "capacities; rather, venue in such suits is governed by 28 U.S.C. § 1391(b), which provides that A civil action wherein jurisdiction is not founded solely on diversity of citizenship may, except as otherwise provided by law, be brought only in (1) a judicial district where any defendant resides, if all defendants reside in the same State, (2) a judicial district in which a substantial part of the events or omissions giving rise to the claim occurred, or a substantial part of the property that is the subject of the action is situated, or (3) a judicial district in which any defendant may be found, if there is no district in which the action may otherwise be brought. 28 U.S.C. § 1391(b). Because all of the federal defendants do not reside in the same state, venue cannot lie in this district under § 1391(b)(1). Further, because none of the alleged events or omissions giving rise to the plaintiffs claims took place in the District of Columbia, but rather in Tennessee and/or Florida, venue cannot lie in this district under § 1391(b)(2). Any potential claim under § 1983 suffers from the same deficiency. See Flanagan v. Shively, 783 F.Supp. 922, 936-36 (M.D.Pa.1992) (only proper venue for civil rights suit brought by prison inmate against prison officials, who resided in several different states, was in district where claim arose). Therefore, any potential § 1983 claim against either the federal or state defendants is subject to dismissal pursuant to Federal Rule of Civil Procedure 12(b)(3). 3. The plaintiff fails to state a claim upon which relief can be granted, a. The plaintiffs claims against defendants Reno and Hawk must be dismissed because respondeat superior may not be the basis of a § 1983 or Bivens suit. Absent any allegations that defendants Reno and Hawk personally participated in the events which gave rise to the plaintiffs claims, or any corroborative allegations to support the inference that these defendants had notice of or acquiesced in the improper securing of detainers against the plaintiff by their subordinates, dismissal is appropriate. See Haynesworth v. Miller, 820 F.2d 1246," }, { "docid": "7747422", "title": "", "text": "are beyond the reach of Section 1391(e). That does not mean that the section is completely inapplicable to the case at bar, for one or more appellees remained in federal employ at the time appellants’ suit was filed. Section 1391(e) furnished venue for the action against those appellees and, as we have said, it specifically authorizes joinder of additional persons as parties if venue requirements otherwise applicable are met. The only possible alternative basis for venue, however, is Section 1391(b), a general provision pertaining to civil litigation not resting jurisdictionally on diverse citizenship. Since the District court ruled broadly here that venue did not lie in the District of Columbia under Section 1391, we must review the determination, implicit in its dismissal of appellants’ lawsuit, with respect to Section 1391(b). II. VENUE UNDER SECTION 1391(b) In Section 1391(b) Congress ordained; A civil action wherein jurisdiction is not founded solely on diversity of citizenship may be brought only in the judicial district where all defendants reside, or in which the claim arose, except as otherwise provided by law. As some of those made defendants to this litigation did not reside in the District of Columbia, venue under Section 1391(b) is proper only if it is a district “in which the claim arose.” At first blush that might appear to be a determination easy enough to make but, though simply phrased, this component of Section 1391(b) has sometimes proved puzzling in application for two principal reasons. In the first place, Congress did not supply any particular definition of the language “in which the claim arose,” either in statutory text or in pertinent legislative history, and no black-letter rule is derivable from other legal contexts in which that phraseology is employed. Perhaps more seriously, the reference to “the judicial district” in which the claim arose might suggest that only a single district can satisfy the státutory standard with respect to any given claim. Though resort to familiar common law theories might furnish a reasonable ground for selection of a particular district in uncomplicated tort or contract actions, choice of a single district is" }, { "docid": "19007375", "title": "", "text": "was “negotiated, drafted, entered and to be performed in Oklahoma.” (Def.’s Reply Brief at 7) Thus, Defendant argues, under 28 U.S.C. § 1391(a)(2) a substantial part of the events or omissions giving rise to the action occurred in Oklahoma rather than in Indiana. Defendant appears to contend that venue in Indiana is improper because venue is proper in Oklahoma, or stated otherwise, that venue is only proper in one district. This argument consistently has been repudiated. As another federal district court explained: Section 1391 was amended in 1990. Under the previous statute, venue was proper in the district “in which the claim arose,” and was usually limited to only one judicial district. The revised statute allows for venue in any district in which a substantial part of the events or omissions giving rise to the claim occurred. Thus, venue can be proper is several districts. Key Industries, Inc. v. O’Doski, Sellers & Clark, 872 F.Supp. 858, 864-65 (D.Kan.1994) (citations omitted). See also Sacody Technologies, Inc. v. Avant, Inc., 862 F.Supp. 1152, 1157 (S.D.N.Y.1994) (“The amendment [to section 1391] evinces Congress’ intent that venue may be proper in more than one federal district in a given ease”); Chemical Waste Management, Inc. v. Sims, 870 F.Supp. 870, 875 (N.D.Ill.1994) (“venue is proper in the Northern District of Illinois notwithstanding the possibility that defendants’ activities may have been more substantial elsewhere”); Wright, Miller & Cooper, Federal Practice and Procedure: Jurisdiction 2d § 3806 (Supp.1995) (“Under the amended statute it is now absolutely clear that there can be more than one district in which a substantial part of the events giving rise to the claim occurred”). The plain meaning of the section leads the Court to conclude that venue in the Southern District of Indiana is proper. A review of the facts of the controversy establishes the statutorily required nexus with this forum. Plaintiff alleges that a substantial part of the events giving rise to this dispute occurred in Indianapolis. Plaintiff alleges that it expended 45% of its labor in performing the Contract at its Indianapolis facility, specifically in the design and manufacture of" }, { "docid": "23138899", "title": "", "text": "the Western District of Pennsylvania. The creditor, a corporation with its principal place of business in that District, referred the account to C & S, a local collection agency which transacts no regular business in New York. Bates had meanwhile moved to the Western District of New York. When C & S mailed a collection notice to Bates at his Pennsylvania address, the Postal Service forwarded the notice to Bates’ new address in New York. In its answer, C & S asserted two affirmative defenses and also counterclaimed for costs, alleging that the action was instituted in bad faith and for purposes of harassment. C & S subsequently filed a motion to dismiss for improper venue, which the District Court granted. Discussion 1. Venue and the 1990 amendments to 28 U.S.C. § 1391(b) Bates concedes that the only plausible venue provision for this action is 28 U.S.C.A. § 1391(b)(2), which allows an action to be brought in “a judicial district in which a substantial part of the events or omissions giving rise to the claim occurred.” Prior to 1990, section 1391 allowed for venue in “the judicial district ... in which the claim arose.” 28 U.S.C. § 1391(b) (1988). This case represents our first opportunity to consider the significance of the 1990 amendments. Prior to 1966, venue was proper in federal question cases, absent a special venue statute, only in the defendant’s state of citizenship. If a plaintiff sought to sue multiple defendants who were citizens of different states, there might be no district where the entire action could be brought. See 1A Part 2 James W. Moore, Moore’s Federal Practice, II 0.342[4] at 4091-95 (2d ed. 1991). Congress closed this “venue gap” by adding a provision allowing suit in the district “in which the claim arose.” This phrase gave rise to a variety of conflicting interpretations. Some courts thought it meant that there could be only one such district; others believed there could be several. Different tests developed, with courts looking for “substantial contacts,” the “weight of contacts,” the place of injury or performance, or even to the boundaries" }, { "docid": "18452075", "title": "", "text": "York renders venue in this district improper, the defendant is on firmer ground. Venue is governed by 28 U.S.C. § 1391(b), which allows suit in the district “in which the claim arose.” Prior to the addition of this phrase in 1966, venue in federal question cases was strictly limited to the district in which all defendants resided. The amendment was enacted to fill the anomalous gap in cases where multiple defendants resided in different districts and there was no proper venue despite the existence of federal jurisdiction. Brunette Machine Works, Ltd. v. Kockum Industries, Inc., 406 U.S. 706, 710 n. 8, 92 S.Ct. 1936, 32 L.Ed.2d 428 (1972). In view of this history the amendment should not be interpreted to find venue in any of the multiplicity of districts in which some part of an alleged wrong, however small, took place. In the context of antitrust or trademark litigation, to take only two examples, such an interpretation could well establish venue in almost every district in the nation. Accordingly, the suggestion implicit in some cases that under § 1391(b) venue lies wherever a wrong or an injury occurs seems questionable. Iranian Shipping Lines, S. A. v. Moraites, 377 F.Supp. 644, 648 (S.D.N.Y.1974); Scott Paper Co. v. Scott’s Liquid Gold Inc., 374 F.Supp. 184, 190 (D.Del.1974); Albert Levine Associates v. Bertoni & Cotti, 314 F.Supp. 169 (S.D.N.Y.1970). The more persuasive approach appears to be that adopted in Honda Associates, Inc. v. Nozawa Trading, Inc., supra, that at most the statute gives rise to a right to sue only in a district where a substantial part of the claim arose. 374 F.Supp. at 889-92. Under the Honda test, venue does not properly lie in this district. Here, as in Honda, the defendant maintains no place of business, mail box, telephone or representative in New York and none of its employees or agents has ever entered the state for business purposes. Moreover it has not earned a penny as a result of its solicitations here and its advertising has been minimal. On its facts it is thus readily distinguishable from both Scott Paper" }, { "docid": "7141026", "title": "", "text": "conduct business in Virginia, the second option for venue is inapplicable. The only relevant test for venue is where “the claim arose.” To determine where the claim arose, the court turns to the legislative history. Congress added the third venue option in 1966 with the explicit purpose of closing the venue gap created by actions brought by multiple parties. The meager history indicates that the enlargement of venue authority would facilitate the disposition of contract and tort claims by providing a more convenient forum to the litigants and the witnesses. S.Rep. No. 1752, 89th Cong., 2d Sess., reprinted in 1966 U.S. Code Cong. & Ad.News 3693, 3694; Brunette Machine Works, Ltd. v. Kockum Industries, Inc., 406 U.S. 706, 710 n. 8, 92 S.Ct. 1936, 1939 n. 8, 32 L.Ed.2d 428 (1972). Since the legislative history provides little guidance, the court examines the case law interpreting the clause. Plaintiffs urge the court to adopt the identity approach. Under that test, if a defendant is subject to jurisdiction under a state’s long-arm statute which extends jurisdiction to the outer limits of due process, then the claim necessarily arises in that district. OCE Industries, Inc. v. Coleman, 487 F.Supp. 548, 552 (W.D.III.1980). See also Bastille Properties, Inc. v. Hometels of America, Inc., 476 F.Supp. 175, 178-82 (S.D.N.Y.1979). One commentator advocates the equation of the availability of process over a nonresident and proper venue under § 1391(a) for the following reasons: First it would minimize the number of instances in which plaintiff is put to the election of foregoing protections afforded him by a state with sufficient connection with the subject matter to justify it in exercising compulsory jurisdiction over the defendant, or shifting the choice of a state or federal forum to the defendant. Second, in cases in which the defendant is sued in an inconvenient forum it would broaden the choices available under § 1404(a) as interpreted in Hoffman v. Blaski, 363 U.S. 335 [80 S.Ct. 1084, 4 L.Ed.2d 1254] (1960). Third, it would shift the issue in motions for transfer from the largely technical questions of which fact of perhaps many" }, { "docid": "19007374", "title": "", "text": "benefits and protections of Indiana law and that Western Farmers reasonably would have anticipated being haled into this forum to resolve the instant dispute, this Court’s assumption of jurisdiction over Defendant comports with due process, and the motion to dismiss on personal jurisdiction grounds is denied. III. VENUE The Court next addresses Defendant’s motion to dismiss for improper venue. Venue in a diversity case is controlled by 28 U.S.C. § 1391(a), which states that in a diversity action venue is proper only in: (1) a judicial district where any defendant resides, if all defendants reside in the same State, (2) a judicial district in which a substantial part of the events or omissions giving rise to the claim occurred, or (3) a judicial district in which the defendants are subject to personal jurisdiction at the time the action is commenced, if there is no district in which the action may otherwise be brought. Turning first to clause (2), Defendant argues that venue is improper in the Southern District of Indiana because the Contract at issue was “negotiated, drafted, entered and to be performed in Oklahoma.” (Def.’s Reply Brief at 7) Thus, Defendant argues, under 28 U.S.C. § 1391(a)(2) a substantial part of the events or omissions giving rise to the action occurred in Oklahoma rather than in Indiana. Defendant appears to contend that venue in Indiana is improper because venue is proper in Oklahoma, or stated otherwise, that venue is only proper in one district. This argument consistently has been repudiated. As another federal district court explained: Section 1391 was amended in 1990. Under the previous statute, venue was proper in the district “in which the claim arose,” and was usually limited to only one judicial district. The revised statute allows for venue in any district in which a substantial part of the events or omissions giving rise to the claim occurred. Thus, venue can be proper is several districts. Key Industries, Inc. v. O’Doski, Sellers & Clark, 872 F.Supp. 858, 864-65 (D.Kan.1994) (citations omitted). See also Sacody Technologies, Inc. v. Avant, Inc., 862 F.Supp. 1152, 1157 (S.D.N.Y.1994) (“The amendment" }, { "docid": "1853217", "title": "", "text": "resides, if all defendants reside in the same State, (2) a judicial district in which a substantial part of the events or omissions giving rise to the claim occurred, or a substantial part of property that is the subject of the action is situated, or (3) a judicial district in which any defendant may be found, if there is no district in which the action may otherwise be brought (emphasis added). Canaday v. Koch, 598 F.Supp. 1139 (E.D.N.Y.1984) held that when venue is proper in a district pursuant to 28 U.S.C. § 1391(b)(1), venue does not lie elsewhere pursuant to 28 U.S.C. § 1391(b)(2). See Ca-naday, 598 F.Supp. at 1148. For the reasons set forth below, I adopt Judge Glasser’s thoughtful and persuasive reasoning in Cana-day. The purpose of statutorily specified venue is to protect defendants against the risk that a plaintiff will select an unfair or inconvenient place of trial. Leroy v. Great Western United Corp., 443 U.S. 173, 183-84, 99 S.Ct. 2710, 61 L.Ed.2d 464 (1979). Accordingly, venue statutes should be construed narrowly, so as to prevent a plaintiff from simply selecting the place of trial which bests suits his or her convenience. See Leroy, 443 U.S. at 184. Prior to 1966, under § 1391(b), venue was proper in federal question cases only in a defendant’s state of residence. Act of June 25, 1948, eh. 646, 62 Stat. 869, 935 (1948). This old law created venue gaps. For example, in a ease involving multiple defendants residing in different districts, no venue lay in federal court. See Brunette Machine Works, Ltd. v. Kockum Indus., Inc. 406 U.S. 706, 710 n. 8, 92 S.Ct. 1936, 32 L.Ed.2d 428 (1972). The 1966 amendment to 28 U.S.C. § 1391 closed this type of venue gap by authorizing venue “in the judicial district where all defendants reside, or in which the claim arose.” Pub.L. No. 89-714, § 1, 80 Stat. 1111 (1966); see Brunette, 406 U.S. at 710 n. 8 (purpose of the 1966 amendment was to close the venue gap). By a 1990 amendment, the language was changed from “in which the" }, { "docid": "1853218", "title": "", "text": "so as to prevent a plaintiff from simply selecting the place of trial which bests suits his or her convenience. See Leroy, 443 U.S. at 184. Prior to 1966, under § 1391(b), venue was proper in federal question cases only in a defendant’s state of residence. Act of June 25, 1948, eh. 646, 62 Stat. 869, 935 (1948). This old law created venue gaps. For example, in a ease involving multiple defendants residing in different districts, no venue lay in federal court. See Brunette Machine Works, Ltd. v. Kockum Indus., Inc. 406 U.S. 706, 710 n. 8, 92 S.Ct. 1936, 32 L.Ed.2d 428 (1972). The 1966 amendment to 28 U.S.C. § 1391 closed this type of venue gap by authorizing venue “in the judicial district where all defendants reside, or in which the claim arose.” Pub.L. No. 89-714, § 1, 80 Stat. 1111 (1966); see Brunette, 406 U.S. at 710 n. 8 (purpose of the 1966 amendment was to close the venue gap). By a 1990 amendment, the language was changed from “in which the claim arose,” to “in which a substantial part of the events or omissions giving rise to the claim occurred.” Pub.L. No. 101-650, Tit. Ill, § 311, 104 Stat. 5089, 5114 (1990). Courts in this Circuit have consistently held that the “claim arose” language inserted into the statute in 1966 — and since amended to “in which a substantial part of the events ... occurred” — was not aimed at expanding venue generally, but was intended only to fill the venue gap discussed above. Under this view, if all the defendants reside in the same state, there is no venue gap to fill, and the portions of the venue statute that filled' the historical gap by adding alternative places for trial do not come into play. See Cana-day, 598 F.Supp. at 1148; Welch Foods, Inc. v. Packer, 1994 WL 665399 at *2 (W.D.N.Y.1994); Now Plastics, Inc. v. HPT Plastics, Inc., 1990 WL 301521 at *2 (S.D.N.Y.1990); Gaymar Indus. v. Grant, 1988 WL 129365 at *3 (W.D.N.Y.1988); Southern Marine Research, Inc. v. Jetronic Indus., 590 F.Supp. 1192," }, { "docid": "16072496", "title": "", "text": "the subject of the action is situated, or (3) a judicial district in which any defendant may be found, if there is no district in which the action may otherwise be brought.”). As indicated above, the Court in Leroy only intended to foreclose recourse to § 1391(b)(2) when a plaintiff seeks to bring separate claims against multiple defendants residing in different states. The Court thus clearly left open the possibility that courts could resort to § 1391(b)(2) when a plaintiff brings a claim against a single or multiple defendants. Any doubt as to the accuracy of this interpretation of Leroy is dispelled by how the Supreme Court ultimately decided Leroy. In determining that Idaho was the proper venue for the case after the New York and Maryland defendants had been dismissed, the Court analyzed both where the remaining defendant resided and where the “claim arose.” See 443 U.S. at 183, 99 S.Ct. 2710, (“The first test of venue under [§ 1391(b) ] — the residence of the defendants — obviously points to Idaho rather than Texas”), 185-86 (“it is the action taken in Idaho by Idaho residents ... as well as the future action that may be taken in the State by its officials ... that provides the basis for [the] claim.... In short, the District of Idaho is the only one in which ‘the claim arose’ within the meaning of § 1391(b).”). The Canaday, Southern Marine Research, and Cobra Partners interpretation fails to recognize that the Leroy court addressed where the claim in that case arose. In addition, the 1990 amendment of § 1391(b) eliminated any remaining controversy regarding how venue should be determined. In addition to changing the “claim arose” language to “a substantial part of the events or omissions giving rise to the claim,” and setting the basis for venue in separate subsections, Congress provided a new subsection— § 1391(b)(3) — and made it subordinate to the first two subsections. Congress easily could have done the same with respect to § 1391(b)(2), but it did not. This indicates Congress’ intent that § 1391(b)(1), (2) are alternative grounds" } ]

[ { "docid": "21679362", "title": "", "text": "application, Kalmanson stated that he attempted to negotiate the permit matter over many months but that his calls to various city officials, including the mayor, were never returned or that he was otherwise rebuffed. Plaintiffs-Appellees filed their verified complaint against the City on November 12, 2002. On November 13, 2002, Chabad moved for a temporary restraining order and preliminary injunction. After a November 25, 2002, hearing, the district court granted Plaintiffs-Appellees motion for preliminary injunction on November 27, 2002 and consolidated the matter with that captioned Ritchy v. City of Cincinna ti, 233 F.Supp.2d 975. The Sixth Circuit Court of Appeals entered a stay of the order enjoining enforcement. Justice Stevens, writing as Circuit Justice, subsequently vacated that stay on November 29, 2002. II. STANDARD OF REVIEW “When ruling on a motion for a preliminary injunction, a district court must consider and balance four factors: (1) whether the movant has a strong likelihood of success on the merits; (2) whether the movant would suffer irreparable injury without the injunction; (3) whether issuance of the injunction would cause substantial harm to others; and (4) whether the public interest would be served by issuance of the injunction.” Blue Cross & Blue Shield Mut. of Ohio v. Columbia/HCA Healthcare Corp., 110 F.3d 318, 322 (6th Cir.1997) (citations omitted). We review a district court’s grant of a preliminary injunction for abuse of discretion. Mascio v. Pub. Employees Ret. Sys. of Ohio, 160 F.3d 310 (6th Cir.1998). “The injunction will seldom be disturbed unless the district court relied upon clearly erroneous findings of fact, improperly applied the governing law, or used an erroneous legal standard.” Id. at 312. “This Court ‘will reverse a district court’s weighing and balancing of the equities only in the rarest of circumstances.’ ” Id. (quoting Moltan Co. v. Eagle-Picher Indus., Inc. 55 F.3d 1171, 1175 (6th Cir.1995)). III. DISCUSSION A. STANDING Chabad has standing to bring a facial challenge against the City’s ordinance. Chabad seeks to use a traditional public forum for expressive activities during the seven week period for which the City’s ordinance prohibits all use of the type" } ]

[ { "docid": "3149631", "title": "", "text": "McQueary states that he wishes to congregate, picket, or demonstrate on that portion of a public right-of-way that is within 300 feet of a funeral, wake, memorial service or burial in a manner that does not, and is not intended to disrupt the event. (Rec. No. 1, Complaint ¶ 13). McQueary further wishes to make sounds and display images observable to or within earshot of funeral participants, in a manner that does not, and is not intended to, disrupt the funeral. McQueary wishes to make these sounds and display these images without seeking or obtaining authorization from the family of the deceased or person conducting the funeral. (Rec. No. 1, Complaint ¶ 14). McQueary states that he also wishes to distribute literature in a non-disruptive manner without first obtaining the permission of the family of the deceased or person conducting the funeral. (Rec. No. 1, Complaint ¶ 15). McQueary moves for a preliminary injunction (Rec. No. 2) enjoining the Attorney General from enforcing Sections 5(l)(b) and (c). The Attorney General filed a Counterclaim (Rec. No. 6), asking the Court to declare that the provisions are valid and moves, pursuant to Federal Rule of Civil Procedure 12(c), for judgment on the pleadings on his Counterclaim. (Rec. No. 8). II. STANDARDS OF REVIEW. When deciding whether to issue a preliminary injunction, a district court should balance: (1) whether the movant has a strong likelihood of success on the merits; (2) whether the movant would suffer irreparable injury if the injunction is not issued; (8) whether issuance of the injunction would cause substantial harm to others; and (4) whether the public interest would be served by issuance of the injunction. Tumblebus, Inc. v. Cranmer, 399 F.3d 754, 760 (6th Cir.), cert. denied, — U.S. -, 126 S.Ct. 361, 163 L.Ed.2d 68 (2005). In First Amendment cases, the first factor will often be determinative. See Connection Distrib. Co. v. Reno, 154 F.3d 281, 288 (6th Cir.1998). In this case, as in most First Amendment cases, the decision of whether to grant the requested injunction turns on McQueary’s likelihood of success on the merits. Id." }, { "docid": "3149693", "title": "", "text": "of this determination, the Court declines to address McQueary’s argument that the provisions constitute prior restraints on speech or that Section 5(l)(c) unconstitutionally conditions expression upon the approval of private individuals. B. Other Factors on Motion for Preliminary Injunction. It is “well-settled precedent” that “[t]he loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury” See G & V Lounge, Inc. v. Michigan Liquor Control Comm’n, 23 F.3d 1071, 1078 (6th Cir.1994). Further, “it is always in the public interest to prevent the violation of a party’s constitutional rights.” Id. at 1079. Finally, “if the plaintiff shows a substantial likelihood that the challenged law is unconstitutional, no substantial harm to others can be said to inhere in its enjoyment.” Deja Vu of Nashville, Inc. v. Metropolitan Gov’t of Nashville and Davidson County, 274 F.3d 377, 400 (6th Cir.2001). Because McQueary has established a strong likelihood of success on the merits on his First Amendment challenge to Sections 5(l)(b) and (c) of the Act, the Court finds that he would suffer irreparable injury if the injunction requested in this case is not issued; the injunction would not cause substantial harm to others; and the public interest will be served by issuance of the injunction. IV. CONCLUSION. For all the above reasons, the Court hereby ORDERS as follows: 1) The Motion for Preliminary Injunction (Rec. No. 2) is GRANTED; 2) The Motion for Judgment on the Pleadings (Rec. No. 8) is DENIED; 3) The Motion to Consolidate the Preliminary Injunction Hearing with the Trial (Rec. No. 17) is DENIED as moot; and 4) The Attorney General, his agents and assigns are hereby ENJOINED from enforcing Sections 5(l)(b) and (c) of Kentucky House Bill No. 333 (2006 Kentucky Laws Ch. 51) and Kentucky Senate Bill No. 93 (2006 Kentucky Laws Ch. 50). . Section l(l)(b)(4) of HB 333 reads “Building in which a funeral home or memorial service is being conducted.” The Attorney General asserts that, when the Acts are codified in the Kentucky Revised Statutes, Section l(l)(b) will list five places protected by the 300-foot zone and" }, { "docid": "12602162", "title": "", "text": "must find that Plaintiffs and their patients’ will suffer an irreparable injury if the preliminary injunction does not issue. See ACLU of KY. v. McCreary County, Kentucky, 354 F.3d 438, 445 (6th Cir.2003), citing Elrod v. Burns, 427 U.S. 347, 373, 96 S.Ct. 2673, 49 L.Ed.2d 547 (1976) (affirming district court’s grant of preliminary judgment for plaintiffs who al-leged violation of their First Amendment rights); see also Overstreet v. Lexington-Fayette Urban County Gov’t, 305 F.3d 566, 578 (6th Cir.2002) (“[cjourts have also held that a plaintiff can demonstrate that a denial of an injunction will cause irrepara-ble harm if the claim is based upon a violation of the plaintiffs constitutional rights.”) Thus, this factor of the prelimi-nary injunction inquiry weighs in favor of granting Plaintiffs’ Motion for Preliminary Injunction. C. Substantial Harm to Others Because Plaintiffs have shown a substantial likelihood of success on the merits on the ground that the Act is unconstitutional, “no substantial harm to others can be said to inhere in its enjoinment.” See Deja Vu of Nashville, Inc. v. Metropolitan Gov’t of Nashville, 214 F.3d 377, 400 (6th Cir.2001), citing Connection Distrib. Co. v. Reno, 154 F.3d 281, 288 (6th Cir.1998). Thus, this factor of the preliminary injunction inquiry weighs in favor of granting Plaintiffs’ Motion for Preliminary Injunction. D. Public Interest “ ‘It is always in the public interest to prevent violation of a party’s constitutional rights.’ ” Id. at 400, citing G & V Lounge, Inc. v. Michigan Liquor Control Comm’n, 23 F.3d 1071, 1079 (6th Cir.1994). Thus, the public interest factor of the preliminary injunction inquiry also weighs in favor of granting Plaintiffs’ Motion for Preliminary Injunction. V. CONCLUSION Because Plaintiffs have demonstrated a strong likelihood of success on the merits regarding an alleged violation of their constitutional rights, the other factors to consider in granting a preliminary injunction automatically weigh in Plaintiffs’ favor. Because Plaintiffs have made sufficient allegations in their complaint to establish standing, and because all four factors to consider in issuing a preliminary injunction weigh heavily in favor of doing so, this Court DENIES Defendant Allen’s Motion To" }, { "docid": "5623408", "title": "", "text": "face, the scheme is an unconstitutional prior restraint upon one’s freedom of expression. II. In deciding whether to grant a preliminary injunction, a district court must consider and balance four factors: (1) whether the plaintiff has established a substantial likelihood or probability of success on the merits; (2) whether there is a threat of irreparable harm to the plaintiff; (3) whether issuance of the injunction would cause substantial harm to others; and (4) whether the public interest would be served by granting injunctive relief. See Connection Distrib. Co. v. Reno, 154 F.3d 281, 288 (6th Cir.1998), cert. denied, — U.S. -, 119 S.Ct. 1496, 143 L.Ed.2d 650 (1999). This Court reviews the grant or denial of a preliminary injunction for an abuse of discretion. Id. “ ‘The district court’s determination will be disturbed only if the district court relied upon clearly erroneous findings of fact, improperly applied the governing law, or used an erroneous legal standard.’ ” Id. (quoting Blue Cross & Blue Shield Mutual of Ohio v. Blue Cross and Blue Shield Ass’n, 110 F.3d 318, 322 (6th Cir.1997)). In cases involving the First Amendment, the crucial inquiry is usually whether the plaintiff has demonstrated a likelihood of success on the merits. Id. This is so because, as in this case, the issues of the public interest and harm to the respective parties largely depend on the constitutionality of the statute. Id. III. The sole issue raised on appeal is whether Paducah’s licensing scheme, on its face, contains adequate procedural safeguards as required by the First Amendment. We conclude that it does not. As an initial matter, we note that Nightclubs has standing to bring a facial attack against the City’s licensing scheme. “In the area of freedom of expression it is well established that one has standing to challenge a statute on the ground that it delegates overly broad licensing discretion to an administrative office, whether or not his conduct could be proscribed by a properly drawn statute, and whether or not he applied for a license.” Freedman v. Maryland, 380 U.S. 51, 56, 85 S.Ct. 734, 13" }, { "docid": "12241822", "title": "", "text": "courts have found that this requirement is not necessary in plaintiff class actions where, as here, the members of the proposed class are juridically linked. See, e.g., Payton v. County of Kane, 308 F.3d 673, 679 (7th Cir.2002) (citing Fallick v. Nationwide Mut. Ins. Co., 162 F.3d 410 (6th Cir.1998)). Thus, because Plaintiffs have made sufficient allegations in their complaint that they face a direct and substantial risk of the deprivation of their constitutional rights by Defendants, they have standing to bring this action. III. LEGAL STANDARD Federal Rule of Civil Procedure 65 authorizes the Court to grant a temporary restraining order. When deciding whether to grant preliminary injunctive relief, the Court considers four factors: (1) whether the movant has a strong likelihood of success on the merits; (2) whether the mov-ant would otherwise suffer irreparable injury; (3) whether issuance of preliminary injunctive relief would cause substantial harm to others; and (4) whether the public interest would be served by issuance of a preliminary injunctive relief. See Leary v. Daeschner, 228 F.3d 729, 736 (6th Cir. 2000); see also Mason County Medical Ass’n v. Knebel, 563 F.2d 256, 261 (6th Cir.1977). IV. ANALYSIS A. Strong Likelihood Of Success On The Merits The Supreme Court has held that “[n]o right is more precious in a free country than that of having a voice in the election of those who make the laws under which, as good citizens, we must live. Other rights, even the most basic, are illusory if the right to vote is undermined.” Wesberry v. Sanders, 376 U.S. 1, 17, 84 S.Ct. 526, 11 L.Ed.2d 481 (1964). The right to vote, which Plaintiffs allege is threatened here, implicates a liberty interest protected by the Due Process Clause of the Fourteenth Amendment. Bell v. Marinko, 235 F.Supp.2d 772, 777 (N.D.Ohio 2002). The timing and manner in which the Defendants intend to send notice and conduct hearings regarding Plaintiff Voters’ exercise of that right raise grave due process concerns. The Due Process Clause requires notice that is “reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of" }, { "docid": "21393317", "title": "", "text": "while keeping her parents unaware of her pursuit of a judicial bypass. II. DISCUSSION “This court reviews a challenge to the grant or denial of a preliminary injunction under an abuse of discretion standard and accords great deference to the decision of the district court. The district court’s determination will be disturbed only if the district court relied upon clearly erroneous findings of fact, improperly applied the governing law, or used an erroneous legal standard.” Blue Cross & Blue Shield Mutual of Ohio v. Columbia/HCA Healthcare Corp., 110 F.3d 318, 322 (6th Cir.1997) (citations omitted). “When ruling on a motion for a preliminary injunction, a district court must consider and balance four factors: (1) whether the movant has a strong likelihood of success on the merits; (2) whether the mov-ant would suffer irreparable injury without the injunction; (3) whether issuance of the injunction would cause substantial harm to others; and (4) whether the public interest would be served by issuance of the injunction.” Id. (citations omitted). The district court determined that MPP had demonstrated a strong likelihood of success on the merits and that the other preliminary injunction factors weighed in favor of granting the injunction. The district court also ruled that, under Tennessee law, the provisions it found likely unconstitutional should not be severed from the rest of the judicial bypass procedure. We hold that the district court abused its discretion in finding that MPP had demonstrated a strong likelihood of success on the merits. Alternatively, we hold that the district court abused its discretion in not severing the provisions it found offensive. A. Likelihood of success on the merits The Supreme Court interpreted the Due Process Clause of the Fourteenth Amendment to include a woman’s right to an abortion in Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973), and affirmed the central holding of Roe in Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833, 112 S.Ct. 2791, 120 L.Ed.2d 674 (1992). A plurality of the justices in Casey recognized the weighty concerns of the state in “the protection of potential life”" }, { "docid": "21204798", "title": "", "text": "its argument pertaining to Warshak’s likelihood of success on the merits, the government contends that other preliminary injunction factors — irreparable harm and balancing of the interests of the public and the parties — do not support the injunction here. The district court determined that Warshak would be irreparably harmed by future intrusions into his private e-mails, and that money damages cannot compensate him for this harm. With regard to the balancing of interests, the district court noted that “it is always in the public interest to prevent violation of a party’s constitutional rights.” D. Ct. Op. at 15 (citing Deja Vu of Nashville, Inc. v. Metro. Gov’t of Nashville & Davidson County, 274 F.3d 377, 400 (6th Cir.2001)). The district court also stated that its order would not unduly inhibit law enforcement, as the preliminary injunction would still permit e-mail seizures pursuant to a warrant or after the provision of notice to the account holder, and that law enforcement interests cannot trump the Fourth Amendment concerns raised by the government’s conduct. It therefore concluded that “all four factors weigh in favor of granting preliminary injunctive relief to Warshak.” Id. at 15-16. This balancing determination is reviewed for an abuse of discretion, under which this Court “accords great deference to the decision of the district court. The district court’s determination will be disturbed only if the district court relied upon clearly erroneous findings of fact, improperly applied the governing law, or used an erroneous legal standard.” Blue Cross & Blue Shield Mut. v. Blue Cross & Blue Shield Ass’n, 110 F.3d 318, 322 (6th Cir.1997). On appeal, the government contends that Warshak will not suffer irreparable harm, relying again on its argument that Warshak cannot show an imminent threat of future seizures, and also contending that he can recover money damages for any future violations of the SCA, that he would receive notice of future seizures of his e-mails now that he has been indicted and there would be no reason to hide the investigation, and that a motion to suppress in his criminal trial represents another adequate remedy for" }, { "docid": "3149632", "title": "", "text": "6), asking the Court to declare that the provisions are valid and moves, pursuant to Federal Rule of Civil Procedure 12(c), for judgment on the pleadings on his Counterclaim. (Rec. No. 8). II. STANDARDS OF REVIEW. When deciding whether to issue a preliminary injunction, a district court should balance: (1) whether the movant has a strong likelihood of success on the merits; (2) whether the movant would suffer irreparable injury if the injunction is not issued; (8) whether issuance of the injunction would cause substantial harm to others; and (4) whether the public interest would be served by issuance of the injunction. Tumblebus, Inc. v. Cranmer, 399 F.3d 754, 760 (6th Cir.), cert. denied, — U.S. -, 126 S.Ct. 361, 163 L.Ed.2d 68 (2005). In First Amendment cases, the first factor will often be determinative. See Connection Distrib. Co. v. Reno, 154 F.3d 281, 288 (6th Cir.1998). In this case, as in most First Amendment cases, the decision of whether to grant the requested injunction turns on McQueary’s likelihood of success on the merits. Id. Federal Rule 12(c) provides that, “[a]f-ter the pleadings are closed but within such time as not to delay the trial, any party may move for judgment on the pleadings.” Fed.R.Civ.P. 12(c). Like a Rule 12(b)(6) motion, a Rule 12(c) motion tests the legal sufficiency of the plaintiff’s complaint. See Scheid v. Fanny Farmer Candy Shops Inc., 859 F.2d 434, 436 n. 1 (6th Cir.1988). When deciding the motion, “[t]he court must construe the complaint in the light most favorable to the plaintiff, accept all factual allegations as true, and determine whether the plaintiff undoubtedly can prove no set of facts in support of his claims that would entitle him to relief.” Cline v. Rogers, 87 F.3d 176, 179 (6th Cir.1996). III. ANALYSIS. Neither party has requested a hearing on this matter. Both parties agree that, as a facial challenge to the provisions at issue, this matter involves only issues of law and no issues of fact. In McQueary’s Motion to Consolidate the hearing on the Motion for Preliminary Injunction with the trial on the merits" }, { "docid": "15332233", "title": "", "text": "general policy that motions for summary judgment will not be considered until after the close of discovery. See, e.g., McLaren Performance Technologies, Inc. v. Dana Corp., 126 F.Supp.2d 468, 470 (E.D.Mich.2000); Helwig v. Kelsey-Hayes Co., 907 F.Supp. 253, 255 (E.D.Mich.1995). In light of this policy, Plaintiff City of Melvindale agreed to withdraw this portion of its motion because discovery is not yet completed and this part of the motion depends on factual issues. C. Plaintiff City of Melvindale’s Motion for Rule 65 Injunctive Relief In a rather peculiar move after three years of litigation, Plaintiff City of Melvin-dale moves the Court for a “preliminary” injunction to require Defendant to implement changes at its plant to reduce the odor. ‘When ruling on a motion for a preliminary injunction, a district court must consider and balance four factors: (1) whether the movant has a strong likelihood of success on the merits; (2) whether the movant would suffer irreparable injury without the injunction; (3) whether issuance of the injunction would cause substantial harm to others; and (4) whether the public interest would be served by issuance of the injunction.” Memphis Planned Parenthood, Inc. v. Sundquist, 175 F.3d 456, 460 (6th Cir.1999); Blue Cross & Blue Shield Mutual of Ohio v. Blue Cross & Blue Shield Ass’n, 110 F.3d 318, 322 (6th Cir.1997). See Forry, Inc. v. Neundorfer, Inc., 837 F.2d 259, 262 (6th Cir.1988); Unsecured Creditors’ Committee of DeLorean Motor Co. v. DeLorean, 755 F.2d 1223, 1228 (6th Cir.1985); Mason County Medical Association v. Knebel, 563 F.2d 256 (6th Cir.1977). These four considerations “are factors to be balanced, not prerequisites that must be met.” DeLorean, 755 F.2d at 1229. First, Plaintiff City of Melvindale does not have a strong likelihood of success on the merits of a claim of nuisance per se, as discussed above. In addition, Plaintiff City of Melvindale does not have a strong likelihood of success on the merits of a nuisance in fact claim in light of facts adduced by Defendant that the odor may be caused in part or in whole by other industries in the area. The" }, { "docid": "6835473", "title": "", "text": "746 (1948). With our review standard and the gravity of the relief in mind, we now address the district court’s order in the case at hand granting Plaintiff injunctive relief. B. Analysis — Whether the District Court Properly Granted a Preliminary Injunction In exercising its discretion with respect to a motion for a preliminary injunction, a district court must give consideration to four factors: “(1) whether the movant has a strong likelihood of success on the merits; (2) whether the movant would suffer irreparable injury without the injunction; (3) whether issuance of the injunction would cause substantial harm to others; and (4) whether the public interest would be served by issuance of the injunction.” Rock & Roll Hall of Fame & Museum, Inc. v. Gentile Prods., 134 F.3d 749, 753 (6th Cir.1998). Mascio, 160 F.3d at 312-13. Federal Rule of Civil Procedure 52(c) “requires a district court to make specific findings concerning each of these four factors, unless fewer are dispositive of the issue.” See In re DeLorean Co., 755 F.2d 1223, 1228 (6th Cir.1985). In Elrod v. Burns, 427 U.S. 347, 373, 96 S.Ct. 2673, 49 L.Ed.2d 547 (1976), the Supreme Court held that when reviewing a motion for a preliminary injunction, if it is found that a constitutional right is being threatened or impaired, a finding of irreparable injury is mandated. In other words, the first factor of the four-factor preliminary injunction inquiry — whether the plaintiff shows a substantial likelihood of succeeding on the merits — should be addressed first insofar as a successful showing on the first factor mandates a successful showing on the second factor— whether the plaintiff will suffer irreparable harm. See id.; see also Connection Distrib. Co. v. Reno, 154 F.3d 281, 288 (6th Cir.1998) (finding that “[wjhen a party seeks a preliminary injunction on the basis of a potential violation of the First Amendment, the likelihood of success on the merits often will be the determinative factor”); Deerfield Med. Ctr. v. City of Deerfield Beach, 661 F.2d 328, 338 (5th Cir.1981) (holding that if the constitutional right of privacy is either threatened" }, { "docid": "12241825", "title": "", "text": "‘the fear that, if these rights are not jealously safeguarded, persons will be deterred, even if imperceptibly, from exercising those rights in the future.’ ” See United Food & Commercial Workers Union, Local 1099 v. Southwest Ohio Reg’l Transit Auth., 163 F.3d 341, 363 (6th Cir.1998) (quoting Newsom v. Norris, 888 F.2d 371, 378 (6th Cir.1989)). Consequently, Plaintiffs have demonstrated a substantial likelihood of success on the merits of their claim. They have made a strong showing that Defendants’ intended actions regarding pre-election challenges to voter eligibility abridge the Plaintiffs’ fundamental right to vote and violate the Due Process Clause. B. Irreparable Injury Because this Court has found that the Defendants’ challenged actions threaten or impair both Plaintiffs’ constitutional right to due process and constitutional right to vote, the Court must find that Plaintiffs will suffer an irreparable injury if the temporary restraining order does not issue. See ACLU of KY. v. McCreary County, Kentucky, 354 F.3d 438, 445 (6th Cir.2003) (citing Elrod v. Burns, 427 U.S. 347, 373, 96 S.Ct. 2673, 49 L.Ed.2d 547 (1976) (affirming district court’s grant of preliminary judgment for plaintiffs who alleged violation of them First Amendment rights)); see also Overstreet v. Lexington-Fayette Urban County Gov’t, 305 F.3d 566, 578 (6th Cir.2002) (“[cjourts have also held that a plaintiff can demonstrate that a denial of an injunction will cause irreparable harm if the claim is based upon a violation of the plaintiffs constitutional rights.”) Thus, this factor of the inquiry weighs in favor of granting Plaintiffs’ Motion for a Temporary Restraining Order. C. Substantial Harm to Others Because Plaintiffs have shown a substantial likelihood of success on the merits on the ground that the Defendants’ challenged actions are unconstitutional, “no substantial harm to others can be said to inhere in its enjoinment.” See Deja Vu of Nashville, Inc. v. Metro. Gov’t of Nashville, 274 F.3d 377, 400 (6th Cir.2001) (citing Connection Distrib. Co. v. Reno, 154 F.3d 281, 288 (6th Cir.1998)). Thus, this factor of the inquiry weighs in favor of granting Plaintiffs’ Motion for a Temporary Restraining Order. D.Public Interest \"'It is always in" }, { "docid": "8702942", "title": "", "text": "from the mark “Polk City Directory.” Specifically, Plaintiff alleges that Defendant has violated the Lanham Act by: (1) utilizing the domain name “MrPOLK.com”; (2) marketing its products under the name “Polk Directories”; (3) utilizing the names “Polk Directories,” and “MrP0LK.com” to market a variety of products and services; (4) marketing and utilizing the business number “1-800-ASK-POLK” and the email address “[email protected]”; (5) developing a logo similar to Plaintiffs logo. (See Compl. at ¶ 14-15; PI. Br. at 4-5.) Now before the Court is Plaintiffs motion for a preliminary injunction, filed on July 23, 2002. Defendant filed its response on August 16, 2002, and Plaintiff filed a reply on August 22, 2002. The Court heard oral argument on August 28, 2002. II. DISCUSSION A. LEGAL STANDARD “When ruling on a motion for a preliminary injunction, a district court must consider and balance four factors: (1) whether the movant has a Strong likelihood of success on the merits; (2) whether the mov-ant would suffer irreparable injury without the injunction; (3) whether issuance of the injunction would cause substantial harm to others; and (4) whether the public interest would be served by issuance of the injunction.” Blue Cross & Blue Shield Mut. of Ohio v. Blue Cross & Blue Shield Ass’n, 110 F.3d 318, 322 (6th Cir.1997). B. ANALYSIS 1. LIKELIHOOD OF SUCCESS ON THE MERITS Plaintiff alleges claims under the Lan-ham Act of trademark infringement and unfair competition. Thus, the Court must first consider Plaintiffs likelihood of success on the merits of these claims. Section 32 of the Lanham Act, 15 U.S.C. § 1114, provides, in relevant part: (1) Any person who shall, without the consent of the registrant— (a) use in commerce any reproduction, counterfeit, copy, or colorable imitation of a registered mark in connection with the sale, offering for sale, distribution, or advertising of any goods or services on or in connection with which such use is likely to cause confusion, or to cause mistake, or to deceive; or (b) reproduce, counterfeit, copy, or col-orably imitate a registered mark and apply such reproduction, counterfeit, copy, or colorable imitation to labels," }, { "docid": "2460986", "title": "", "text": "portion of the retirement allowance.” The retirant is precluded from electing division (C)(1)(a), under which certain persons can receive “both compensation for the employment and a retirement allowance.” In light of the new statute, the Retirement System notified Judge Mascio that his retirement allowance would be suspended effective January 1, 1997. Mascio then brought the present declaratory judgment/injunction suit, claiming a violation of his rights under the Contract Clause (Art. I, § 10) and Bill of Attainder Clause (Art. I, § 9) of the United States Constitution. Concluding that Mascio had demonstrated a substantial likelihood of success on the merits of these claims, the district court granted a preliminary injunction blocking suspension of the retirement allowance. This appeal followed. II The granting of a preliminary injunction is subject to appellate review under an “abuse of discretion” standard. The injunction will seldom be disturbed unless the district court relied upon clearly erroneous findings of fact, improperly applied the governing law, or used an erroneous legal standard. See Blue Cross & Blue Shield Mut. of Ohio v. Blue Cross and Blue Shield Ass’n, 110 F.3d 318, 322 (6th Cir.1997). In exercising its discretion with respect to a motion for a preliminary injunction, a district court must give consideration to four factors: “(1) whether the movant has a strong likelihood of success on the merits; (2) whether the movant would suffer irreparable injury without the injunction; (3) whether issuance of the injunction would cause substantial harm to others; and (4) whether the public interest would be served by issuance of the injunction.” Rock & Roll Hall of Fame & Museum, Inc. v. Gentile Prods., 134 F.3d 749, 753 (6th Cir.1998). In this circuit, “the four considerations applicable to preliminary injunction decisions are factors to be balanced, not prerequisites that must be met.” In re DeLorean Motor Co., 755 F.2d 1223, 1229 (6th Cir.1985). This court “will reverse a district court’s weighing and balancing of the equities only in the rarest of circumstances.” Moltan Co. v. Eagle-Picher Indus., Inc., 55 F.3d 1171, 1175 (6th Cir.1995). In its balancing of the four factors in the" }, { "docid": "5623407", "title": "", "text": "remand. Id. Section ll-15(e) states, “The applicant shall have the right to seek prompt judicial review of the Board of Commissioners’ decision in any court of competent jurisdiction as provided by law. The action shall be promptly reviewed by the court.” Ord. § ll-15(e). Section 11-17 prescribes almost identical appeal rights for a license holder seeking an appeal of the suspension or revocation of a license. See Ord. § 11 — 17(a)—(f). Soon after the Paducah ordinance went into effect, Nightclubs filed this action, challenging the constitutionality of the ordinance both on its face and as applied. After conducting a hearing on the plaintiffs motion for a preliminary injunction, the District Court enjoined only those sections of the ordinance pertaining to the high cost of licensing fees and the requirement that landowners submit notarized acknowledgments along with license applications. See Ord. §§ 11 — 6(e)(13), ll-9(a)(d). The District Court declined to enjoin the remaining operational and licensing provisions of the ordinance. Nightclubs appeals that denial with respect to the licensing scheme, arguing that on its face, the scheme is an unconstitutional prior restraint upon one’s freedom of expression. II. In deciding whether to grant a preliminary injunction, a district court must consider and balance four factors: (1) whether the plaintiff has established a substantial likelihood or probability of success on the merits; (2) whether there is a threat of irreparable harm to the plaintiff; (3) whether issuance of the injunction would cause substantial harm to others; and (4) whether the public interest would be served by granting injunctive relief. See Connection Distrib. Co. v. Reno, 154 F.3d 281, 288 (6th Cir.1998), cert. denied, — U.S. -, 119 S.Ct. 1496, 143 L.Ed.2d 650 (1999). This Court reviews the grant or denial of a preliminary injunction for an abuse of discretion. Id. “ ‘The district court’s determination will be disturbed only if the district court relied upon clearly erroneous findings of fact, improperly applied the governing law, or used an erroneous legal standard.’ ” Id. (quoting Blue Cross & Blue Shield Mutual of Ohio v. Blue Cross and Blue Shield Ass’n, 110" }, { "docid": "21393350", "title": "", "text": "F.3d 310, 312-13 (6th Cir.1998). As Judge Nelson recognized in Mascio: The injunction will seldom be disturbed unless the district court relied upon clearly erroneous findings of fact, improperly applied the governing law, or used an erroneous legal standard. See Blue Cross & Blue Shield Mut. of Ohio v. Blue Cross & Blue Shield Ass’n, 110 F.3d 318, 322 (6th Cir.1977). In exercising its discretion with respect to a motion for a preliminary injunction, a district court must give consideration to four factors: “(1) whether the movant has a strong likelihood of success on the merits; (2) whether the movant would suffer irreparable injury without the injunction; (3) whether issuance of the injunction would cause substantial harm to others; and (4) whether the public interest would be served by issuance of the injunction.” Rock & Roll Hall of Fame & Museum, Inc. v. Gentile Prods., 134 F.3d 749, 753 (6th Cir.1998). In this circuit, “the four considerations applicable to preliminary injunction decisions are factors to be balanced, not prerequisites that must be met.” In re DeLorean Motor Co., 755 F.2d 1223, 1229 (6th Cir.1985). The court “will reverse a district court’s weighing and balancing of the equities only in the rarest of circumstances.” Moltan Co. v. Eagle-Picher Indus., Inc., 55 F.3d 1171, 1175 (6th Cir.1995). 160 F.3d at 312-13 (emphasis added). In the present case, Judge Nelson’s de-' cisión to join Judge Norris in reversing the district court’s order granting Memphis Planned Parenthood, Inc. (“MPP”) a preliminary injunction, flies in the face of his accurate acknowledgment and application of the standard of review set forth in Mascio. The facts of this ease hardly rise to the level of the “rarest of circumstances” for reversal of the district court’s preliminary injunction, particularly where the majority conspicuously fails to note any instance where the district court “relied upon clearly erroneous findings of fact, improperly applied the governing law, or used an erroneous legal standard.” Mascio, 160 F.3d at 312. On the contrary, it is the majority that relies upon clearly erroneous and speculative findings of fact, improperly applies the law — or" }, { "docid": "16464638", "title": "", "text": "exercise of discretion under the Declaratory Judgment Act, 28 U.S.C. § 2201(a), for abuse of discretion.’” (quoting Scottsdale Ins. Co. v. Roumph, 211 F.3d 964, 967 (6th Cir.2000))). In considering whether preliminary injunctive relief should be granted, a court considers four factors: “(1) whether the movant has a strong likelihood of success on the merits; (2) whether the movant would suffer irreparable injury without the injunction; (3) whether issuance of the injunction would cause substantial harm to others; and (4) whether the public interest would be served by issuance of the injunction.” Chabad of S. Ohio v. City of Cincinnati, 363 F.3d 427, 432 (6th Cir.2004) (quoting Blue Cross & Blue Shield Mut. of Ohio v. Blue Cross & Blue Shield Ass’n, 110 F.3d 318, 322 (6th Cir.1997)). “Although no one factor is controlling, a finding that there is simply no likelihood of success on the merits is usually fatal.” Gonzales v. Nat’l Bd. of Med. Examiners, 225 F.3d 620, 625 (6th Cir.2000). “In general, ‘[t]he standard for a preliminary injunction is essentially the same as for a permanent injunction with the exception that [for a preliminary injunction] the plaintiff must show a likelihood of success on the merits rather than actual success.’ ” ACLU of Ky. v. McCreary Cnty., 607 F.3d 439, 445 (6th Cir.2010) (quoting Amoco Prod. Co. v. Vill. of Gambell, 480 U.S. 531, 546 n. 12, 107 S.Ct. 1396, 94 L.Ed.2d 542 (1987)). The district court found that none of Jolivette’s constitutional claims had merit, and that when balanced with the other factors, injunctive relief was not warranted. Jolivette, — F.Supp.2d at-, 2012 WL 3527733, at *16. We consider each of Jolivette’s arguments on appeal in turn. III. FIRST AMENDMENT CLAIM Jolivette first argues that Defendants’ determination that he is ineligible to run as an independent candidate because he is affiliated with a political party violates his First Amendment rights to free speech and association. See Appellant Br. at 8. The focus of our inquiry is thus on this constitutional question. The grant of the protest against Jolivette’s independent candidacy by the Board of Elections and" }, { "docid": "21393349", "title": "", "text": "rape with no means of financial or emotional support, to the point that the court’s holding leaves these young girls with no voice and, as a result — no choice. It is a repug nant outcome from which I cannot distance myself far enough, and from which I therefore adamantly dissent. I. Standard of Review — Preliminary Injunction At the outset, I wish to emphasize the proper standard of review under which this court proceeds in reviewing a challenge to the grant of a preliminary injunction. Although the majority recites the proper standard in its decision, its recitation is nothing more than a mere expression of words where the majority goes on to employ a de novo standard of review in reaching its legally erroneous, result-driven holding. Our review of a district court’s decision to grant a preliminary injunction is extremely limited where we are required to accord great deference to the district court’s decision in determining whether the court abused its discretion in granting the preliminary injunction. Mascio v. Public Employees Retirement Sys., 160 F.3d 310, 312-13 (6th Cir.1998). As Judge Nelson recognized in Mascio: The injunction will seldom be disturbed unless the district court relied upon clearly erroneous findings of fact, improperly applied the governing law, or used an erroneous legal standard. See Blue Cross & Blue Shield Mut. of Ohio v. Blue Cross & Blue Shield Ass’n, 110 F.3d 318, 322 (6th Cir.1977). In exercising its discretion with respect to a motion for a preliminary injunction, a district court must give consideration to four factors: “(1) whether the movant has a strong likelihood of success on the merits; (2) whether the movant would suffer irreparable injury without the injunction; (3) whether issuance of the injunction would cause substantial harm to others; and (4) whether the public interest would be served by issuance of the injunction.” Rock & Roll Hall of Fame & Museum, Inc. v. Gentile Prods., 134 F.3d 749, 753 (6th Cir.1998). In this circuit, “the four considerations applicable to preliminary injunction decisions are factors to be balanced, not prerequisites that must be met.” In re" }, { "docid": "23240706", "title": "", "text": "at 27-30.) Nonetheless, the district court granted Connection’s motion for an injunction pending this appeal of the denial of the preliminary injunction. The district court concluded that, even though there was not a strong likelihood of success on the merits of the appeal, a stay of its order denying the preliminary injunction was warranted both because of the substantial legal questions involved in the case and because Connection would be irreparably harmed, in the form of its potential demise, if it were forced to comply with the statute during the pendency of the appeal. (J.A. at 37-38.) Accordingly, the district court issued an injunction'barring the enforcement of the Act against Connection prior to the resolution of this appeal. II. STANDARD OF REVIEW In determining whether or not to grant a preliminary injunction, a district court considers four factors: (1) the plaintiffs likelihood of success on the merits; (2) whether the plaintiff could suffer irreparable harm without the injunction; (3) whether granting the injunction will cause substantial harm to others; and (4) the impact of the injunction on the public interest. Golden v. Kelsey-Hayes Co., 73 F.3d 648, 653 (6th Cir.1996), cert. denied, — U.S. -, 117 S.Ct. 49, 136 L.Ed.2d 13 (1996). “None of these factors, standing alone, is a prerequisite to relief; rather, the court should balance them.” Id. (citations omitted). An appeals court reviews a challenge to a district court’s ruling on a preliminary injunction for abuse of discretion. Blue Cross & Blue Shield Mutual of Ohio v. Blue Cross and Blue Shield Ass’n, 110 F.3d 318, 322 (6th Cir.1997). “The district court’s determination will be disturbed only if the district court relied upon clearly erroneous findings of fact, improperly applied the governing law, or used an erroneous legal standard.” Id. When a party seeks a preliminary injunction on the basis of the potential violation of the First Amendment, the likelihood of success on the merits often will be the determinative factor. With regard to the factor of irreparable injury, for example, it is well-settled that “loss of First Amendment freedoms, for even minimal periods of time, unquestionably" }, { "docid": "16464637", "title": "", "text": "jurisdiction under 28 U.S.C. § 1331. See Morrison v. Colley, 467 F.3d 503, 505-06 (6th Cir.2006). We have jurisdiction over the appeal pursuant to 28 U.S.C. § 1291. II. STANDARD OF REVIEW We review the district court’s denial of preliminary and permanent injunctive relief for abuse of discretion. See ACLU of Ohio, Inc. v. Taft, 385 F.3d 641, 645 (6th Cir.2004). Accordingly, we review “the district court’s legal conclusions de novo and its factual findings for clear error.” Taubman Co. v. Webfeats, 319 F.3d 770, 774 (6th Cir.2003) (quoting Owner-Operator Indep. Drivers Ass’n v. Bis-sell, 210 F.3d 595, 597 (6th Cir.2000)); see Worldwide Basketball and Sport Tours, Inc. v. NCAA, 388 F.3d 955, 958 (6th Cir. 2004). We also review for abuse of discretion the district judge’s decision not to grant declaratory relief. See Taft, 385 F.3d at 645 (“Although the district court did not specifically rule on the [plaintiffs] request for declaratory relief, instead dismissing the case in toto after ruling on the [plaintiffs] motion for preliminary injunctive relief, we review a ‘district court’s exercise of discretion under the Declaratory Judgment Act, 28 U.S.C. § 2201(a), for abuse of discretion.’” (quoting Scottsdale Ins. Co. v. Roumph, 211 F.3d 964, 967 (6th Cir.2000))). In considering whether preliminary injunctive relief should be granted, a court considers four factors: “(1) whether the movant has a strong likelihood of success on the merits; (2) whether the movant would suffer irreparable injury without the injunction; (3) whether issuance of the injunction would cause substantial harm to others; and (4) whether the public interest would be served by issuance of the injunction.” Chabad of S. Ohio v. City of Cincinnati, 363 F.3d 427, 432 (6th Cir.2004) (quoting Blue Cross & Blue Shield Mut. of Ohio v. Blue Cross & Blue Shield Ass’n, 110 F.3d 318, 322 (6th Cir.1997)). “Although no one factor is controlling, a finding that there is simply no likelihood of success on the merits is usually fatal.” Gonzales v. Nat’l Bd. of Med. Examiners, 225 F.3d 620, 625 (6th Cir.2000). “In general, ‘[t]he standard for a preliminary injunction is essentially the same" }, { "docid": "6835472", "title": "", "text": "(emphasizing that a preliminary injunction is the strong arm of equity which should not be extended to cases which are doubtful or do not come within well-established principles of law). We review the district court’s decision to grant a preliminary injunction for an abuse of discretion- while giving great deference to the district court’s determination; however, our deference to the district court is not absolute. Mascio v. Pub. Employees Ret. Sys., 160 F.3d 310, 312-13 (6th Cir.1998). Which is to say, the injunction will be disturbed if the district court relied upon clearly erroneous findings of fact, improperly applied the governing law, or used an erroneous legal standard. See Blue Cross & Blue Shield Mut. v. Blue Cross & Blue Shield Ass’n, 110 F.3d 318, 322 (6th Cir.1997). “A finding is ‘clearly erroneous’ when although there is evidence to support it, the reviewing court is left with the definite and firm conviction that a mistake has been committed.” See United States v. United States Gypsum, Co., 333 U.S. 364, 395, 68 S.Ct. 525, 92 L.Ed. 746 (1948). With our review standard and the gravity of the relief in mind, we now address the district court’s order in the case at hand granting Plaintiff injunctive relief. B. Analysis — Whether the District Court Properly Granted a Preliminary Injunction In exercising its discretion with respect to a motion for a preliminary injunction, a district court must give consideration to four factors: “(1) whether the movant has a strong likelihood of success on the merits; (2) whether the movant would suffer irreparable injury without the injunction; (3) whether issuance of the injunction would cause substantial harm to others; and (4) whether the public interest would be served by issuance of the injunction.” Rock & Roll Hall of Fame & Museum, Inc. v. Gentile Prods., 134 F.3d 749, 753 (6th Cir.1998). Mascio, 160 F.3d at 312-13. Federal Rule of Civil Procedure 52(c) “requires a district court to make specific findings concerning each of these four factors, unless fewer are dispositive of the issue.” See In re DeLorean Co., 755 F.2d 1223, 1228 (6th Cir.1985)." } ]

[ { "docid": "22870402", "title": "", "text": "the State has a law which if enforced would give relief. The federal remedy is supplementary to the State and the state remedy need not be first sought and refused before the federal one is invoked.” 81 S.Ct. at page 482, 5 L.Ed.2d 492, at page 503. With a clear congressional policy to protect the life of the living from the hazard of death caused by unconstitutional deprivations of civil rights, where then do we find the statutory machinery to give effective redress after death ? We find it unnecessary to pass on the historically documented contention of the plaintiff that § 1986, note 6, supra, by its incorporating reference to the “second section of this act” grants a general right of action either “to the person injured” or “his legal representatives” in the broad terms of the first clause without the time or monetary limitations set forth in the proviso. This is so because we are of the clear view that Congress adopted as federal law the currently effective state law on the general right of survival. This was done by § 1988. With respect to vindication of federally guaranteed civil rights, Congress provided that in all cases where the laws of the United States are “suitable to carry the same into effect” but are “not adapted to the object, or are deficient in the provisions necessary to furnish suitable remedies and punish offenses against law” then the “common law, as modified and changed by the constitution and statutes of the State” in which the federal court is sitting “so far as the same is not inconsistent with the Constitution and laws of the United States” are to “be extended to and govern * * * the trial and disposition” of the case. In determining the impact of this section on our specific problem, we should bear in mind again that we are concerned solely with statutory interpretation. Without a doubt Congress has the constitutional power to spell out a comprehensive right of survival for civil rights claims. The question is therefore one of the everyday variety: has it" } ]

[ { "docid": "8771993", "title": "", "text": "death of the party whose rights were allegedly violated. No federal statute directly addresses the issue: “federal law simply does not ‘cover every issue that may arise in the context of a federal civil rights action.’ ” Robertson v. Wegmann, 436 U.S. 584, 588, 98 S.Ct. 1991, 56 L.Ed.2d 554 (1978) (quoting Moor v. County of Alameda, 411 U.S. 693, 702, 93 S.Ct. 1785, 36 L.Ed.2d 596 (1973)). Under 42 U.S.C. § 1988, where federal law is silent, state law normally governs, unless inconsistent with federal law: [I]n all cases where [federal laws] are not adapted to the object, or are deficient in the provisions necessary to furnish suitable remedies and punish offenses against law, the common law, as modified and changed by the constitution and statutes of the State wherein the court having jurisdiction of such civil or criminal cause is held, so far as the same is not inconsistent with the Consti tution and laws of the United States, shall be extended to and govern the said courts in the trial and disposition of the cause.... Id., § 1988(a). At common law, the claim of an injured party did not survive the death of either the injured party himself or the alleged wrongdoer. Robertson, 436 U.S. at 589, 98 S.Ct. 1991, (quoting Moor, 411 U.S. at 702 n. 14, 93 S.Ct. 1785); Pine v. Rust, 404 Mass. 411, 417, 535 N.E.2d 1247 (1989). That rule, which was often harsh in its application, has been modified by statute in Massachusetts. See Mass. Gen. Laws ch. 228, § 1. The Massachusetts survival statute provides as follows: In addition to the actions which survive by the common law, the following shall survive:— (1) Actions under chapter two hundred and forty-seven [i.e., for replevin]; (2) Actions of tort (a) for assault, battery, imprisonment or other damage to the person; (b) for consequential damages arising out of injury to the person and consisting of expenses incurred by a husband, wife, parent or guardian for medical, nursing, hospital or surgical services in connection with or on account of such injury; (c) for goods taken" }, { "docid": "1018242", "title": "", "text": "this action as a survivor’s action on behalf of the heirs of the decedent and the wrongful death action for benefit to the beneficially titled next of kin in accordance with Ohio Revised Code 2125.01 et seq. who are plaintiff Leanna Jaco, the decedent’s father Ralph C. Storer and decedent’s brother David L. Storer”. The district court held that decedent’s civil rights cause of action did not survive his death, and therefore granted defendant’s motion to dismiss for failure to state a claim. There ensued this appeal. The real controversy in this case is more one of standing than of the sufficiency of the complaint to state a cause of action. The resolution of the standing issue requires an examination of the interrelationship between the federal civil rights statute, 42 U.S.C. § 1983, and Ohio’s survival and wrongful death statutes.. Section 1983 creates a cause of action for deprivation of civil rights. By its own terminology, the statute grants the cause of action “to the party injured”. Accordingly, it is an action personal to the injured party. In addressing the very issue presented herein, the United States Supreme Court in Robertson v. Wegmann, 436 U.S. 584, 98 S.Ct. 1991, 56 L.Ed.2d 554 (1978), mandated that determination of the applicable survivorship rule for actions arising pursuant to 42 U.S.C. § 1983, was governed by 42 U.S.C. § 1988. In Robertson, the Court stated that: This statute recognizes that in certain areas “federal law is unsuited or insufficient ‘to furnish suitable remedies’ federal law simply does not “cover every issue that may arise in the context of a federal civil rights action.” Moor v. County of Alameda, 411 U.S. 693, 702, 703, 93 S.Ct. 1785, 1795, 1792, 36 L.Ed.2d 596 (1973), quoting 42 U.S.C. § 1988. When federal law is thus “deficient”, § 1988 instructs us to turn to “the common law, as modified and changed by the constitution and statutes of the (forum) State,” as long as these are “not inconsistent with the Constitution and laws of the United States.” * * * * * 4= [0]ne specific area not covered" }, { "docid": "2387544", "title": "", "text": "for the death of an unmarried minor son. However, in its order denying a motion for new trial, the court changed its position on standing, concluding that no one may seek vindication for the violation of another’s rights. The Court of Appeals reversed. No appeal had been taken from that part of the trial court’s order denying plaintiff’s claim for damages, but it cannot be said that the holding is dictum for our purposes here, because the “critical issue” before the court was whether plaintiff had standing to seek a declaratory judgment that the state statutes permitting such use of deadly force were unconstitutional. The court’s answer was in the affirmative, by reference to the Missouri wrongful death statute. At 593. Contra to the suggestion made by the Court of Appeals for the Sixth Circuit in Hall v. Wooten, supra, the Court of Appeals for the Eighth Circuit thus deemed the wrongful death action to be remedial. So, too, have two district courts which have had occasion to determine the issue. In Galindo v. Brownell, supra, the court concluded that “resort to such remedy is necessary to render the Civil Eights Act fully effective in this case and is therefore sanctioned under 42 U.S.C. § 1988.” At 931. In Pollard v. United States, 384 F.Supp. 304 (M.D.Ala.1974), an action seeking recovery against the United States and various state officials for, inter alia, wrongful death arising out of syphilis study, the court held: “Since there is no express federal remedy for wrongful death under the civil rights statutes (42 U.S.C. §§ 1981, 1983 and 1985), the common and statutory law of the State of Alabama must be looked to for a suitable remedy not inconsistent with the Constitution and laws of the United States. 42 U.S.C. § 1988. An action against these state defendants for the wrongful deaths of plaintiffs’ decedents resulting from violations of the civil rights statutes gives rise, by virtue of Alabama’s wrongful death statute, to federally enforceable claims for damages by their personal representatives.” At 306. The Court agrees with these determinations, and in so doing, refers" }, { "docid": "4993517", "title": "", "text": "no federal common law right to seek contribution from F.O.P. on plaintiff’s 1981 or 1983 claims. Because sections 1981 and 1983 were enacted in the immediate post-Civil War era, we must consider a statute that was not relevant in either Northwest Airlines or Texas Industries. 42 U.S.C. § 1988 provides, in pertinent part, that the jurisdiction in civil and criminal matters conferred on the district courts by the provisions of [various post-Civil War statutes, including the present 42 U.S.C. §§ 1981 & 1983], for the protection of all persons in the United States in their civil rights, and for their vindication, shall be exercised and enforced in conformity with the laws of the United States, so far as such laws are suitable to carry the same into effect; but in all cases where they are not adapted to the object, or are deficient in the provisions necessary to furnish suitable remedies and punish offenses against law, the common law, as modified and changed by the constitution and statutes of the State wherein the court having jurisdiction of such civil or criminal came is held, so far as the same is not inconsistent with the Constitution and laws of the United States, shall be extended to and govern the said courts in the trial and disposition of the cause. (Emphasis added.) Arguably, then, we may also examine the law of Kansas to determine whether the named defendants have a right to seek contribution from F.O.P. on the plaintiff’s section 1981 and 1983 claims. See Sager v. City of Woodland Park, 543 F.Supp. 282, 297 n. 19 (D.Colo.1982) (applying Colorado statutory and common law contribution remedies in section 1983 action); but cf. Moor v. Alameda County, Calif, 411 U.S. 693, 703-04, 93 S.Ct. 1785, 1792-93, 36 L.Ed.2d 596 (1973) (“But we do not believe that the section, without more, was meant to authorize the wholesale importation into federal law of state causes of action.”). It is clear from the complaint in this case that plaintiff is alleging an intentional tort. Indeed, an employment discrimination action could not be maintained under either of" }, { "docid": "7888041", "title": "", "text": "the common and statutory law of the State of Alabama must be looked to for a suitable remedy not inconsistent with the Constitution and laws of the United States. 42 U.S.C. § 1988. An action against these state defendants for the wrongful deaths of plaintiffs’ decedents resulting from violations of the civil rights statutes gives rise, by virtue of Alabama's wrongful death statute, to federally enforceable claims for damages by their personal representatives. Brazier v. Cherry, 293 F.2d 401 (5th Cir. 1961), cert. denied, 368 U.S. 921, 82 S.Ct. 243, 7 L.Ed.2d 136 (1961), cited with approval in Moor v. County of Alameda, 411 U.S. 693, 702-703, n. 14, 93 S.Ct. 1785, 36 L.Ed.2d 596 (1973). With the exception of 42 U.S.C. § 1986, which will be considered below, none of the civil rights statutes at issue in this motion contains a statutory period of limitation. It is well established that in such instances where Congress has provided no period of limitation for a federal claim, the federal court must borrow the applicable statute of limitations which the state in which it sits would enforce had an action seeking similar relief been brought in a court of that state. O’Sullivan v. Felix, 233 U.S. 318, 34 S.Ct. 596, 58 L.Ed. 980 (1914); McGuire v. Baker, 421 F.2d 895, 898 (5th Cir. 1970), cert. denied, 400 U.S. 820, 91 S.Ct. 37, 27 L.Ed.2d 47 (1970); Beard v. Stephens, 372 F.2d 685, 688 (5th Cir. 1967). Title 7, § 123 of the Alabama Code provides that all actions for wrongful death must be brought “within two years from and after the death of the testator or intestate.” Whether this provision be considered a statute of limitations or an essential element of the right to sue, Nicholson v. Lockwood Greene Engineers, Inc., 278 Ala. 497, 500, 179 So.2d 76 (1965); Woodward Iron Company v. Craig, 256 Ala. 37, 53 So.2d 586 (1951), it is clear that an Alabama court would enforce the two-year limitation period if a similar suit had been brought before it. Plaintiffs argue, however, that this Court should adopt the" }, { "docid": "21496079", "title": "", "text": "the Federal law is not suitable for carrying its policy into effect. Where the Federal statute is deficient state law may be looked to. There is a substantial distinction between the wrongful death action and the survival suit. Damages in the wrongful death action may not exceed $25,000.00. In the survival statute there are particular items which are specifically excluded. See C.R.S. '63, 153-1-9. See also Publix Cab Co. v. Colorado National Bank of Denver, 139 Colo. 205, 338 P.2d 702, 78 A.L.R.2d 198 (1959). Therefore, the local law which is here applicable is the survival statute under which the administrator owns the action for the benefit of the estate. See Brazier v. Cherry, 5 Cir. 1961, 293 F.2d 401, cert, denied 368 U.S. 921, 82 S.Ct. 243, 7 L.Ed.2d 136. In the Brazier case suit was brought under the Civil Rights Act by a surviving widow individually and as administratrix. This also was a case in which decedent allegedly had been beaten to death by the defendant police officers. The trial court dismissed the action and the Fifth Circuit reversed that decision holding that 42 U.S.C. § 1988 adopted as Federal law the currently effective state statute on survival of actions and did so in order to permit full and effectual enforcement of the Civil Rights statutes. It was noted that inasmuch as the fiduciary plaintiff was also the widow, resort to the wrongful death action could have been appropriate. We must conclude then that the motions to dismiss, insofar as they are based on the proposition that the plaintiff is not a real party in interest, are without merit and the same must be denied. We must also reject the motions to dismiss based upon the fact that the survival statute specifically limits the damages, since this factor does not affect our jurisdiction. See Douglas v. City of Jeannette, 319 U.S. 157, 63 S.Ct. 877, 87 L.Ed. 1324 (1943). Therefore, the fact that the damages might well be limited under the survival statute does not require that the action itself be dismissed. Defendants Hoffman and Capra and the" }, { "docid": "2387545", "title": "", "text": "supra, the court concluded that “resort to such remedy is necessary to render the Civil Eights Act fully effective in this case and is therefore sanctioned under 42 U.S.C. § 1988.” At 931. In Pollard v. United States, 384 F.Supp. 304 (M.D.Ala.1974), an action seeking recovery against the United States and various state officials for, inter alia, wrongful death arising out of syphilis study, the court held: “Since there is no express federal remedy for wrongful death under the civil rights statutes (42 U.S.C. §§ 1981, 1983 and 1985), the common and statutory law of the State of Alabama must be looked to for a suitable remedy not inconsistent with the Constitution and laws of the United States. 42 U.S.C. § 1988. An action against these state defendants for the wrongful deaths of plaintiffs’ decedents resulting from violations of the civil rights statutes gives rise, by virtue of Alabama’s wrongful death statute, to federally enforceable claims for damages by their personal representatives.” At 306. The Court agrees with these determinations, and in so doing, refers to the reasoning of the Court of Appeals for the Fifth Circuit in the Brazier opinion, because although the specific determination may have been unnecessary to the holding, the reasoning has equally applicable force: “[§ 1988] reflects a purpose on the part of Congress that the redress available will effectuate the broad policies of the civil rights statutes. “There is nothing in this comprehensive declai'ation of a purpose to make a policy fully effective which would justify reading the single word ‘remedies’ in a literal sense. . Used, as it was in parallel with the phrase ‘and punish offenses against law,’ it comprehends those facilities available in local state law but unavailable in federal legislation, which will permit the full effectual enforcement of the policy sought to be achieved by the statutes. And in a very real sense the utilization of local death and survival statutes does not do more than create an effective remedy. This is so because the right is surely a federally protected one — the right to be free from deprivation" }, { "docid": "8617568", "title": "", "text": "rights statutes are deficient with respect to survivorship. Brazier v. Cherry, 5 Cir. 1961, 293 F.2d 401, 408, cert. denied, 1961, 368 U.S. 921, 82 S.Ct. 243, 7 L.Ed.2d 136. Other courts, including the Supreme Court, have reached the same conclusion. Moor v. County of Alameda, 1973, 411 U.S. 693, 702, n. 14, 93 S.Ct. 1785, 36 L.Ed.2d 596. Pritchard v. Smith, 8 Cir. 1961, 289 F.2d 153, 155. We therefore must apply Louisiana’s survivorship law unless that law “is inconsistent with the Constitution and laws of the United States.” In analyzing whether La.Civ.Code Ann. art. 2315 is incompatible with federal law, it is important to clarify the type of action we are dealing with. As the district court stressed: “We emphasize at the outset that we are not concerned with wrongful death actions for damages to others caused by the tort victim’s death. Also to be distinguished are survival of causes of action, where the tort victim dies without bringing suit, and the question is whether a party may institute suit to recover for the tort victim’s own damages.” 391 F.Supp. at 1361 (emphasis in original). Instead, we are concerned with a pending action for damages, instituted by a plaintiff on his own behalf before his death, seeking damages to redress a violation of his civil rights. Moreover, we are dealing with a situation in which the application of the relevant state survival law to a federal cause of action will leave the plaintiff without a remedy in either federal or state courts. See Moragne v. State Marine Lines, 1970, 398 U.S. 375, 90 S.Ct. 1772, 26 L.Ed.2d 339. This we refuse to do. Because Louisiana’s survivorship provisions would cause Shaw’s pending civil rights action to abate, we find that Louisiana law is inconsistent with the broad remedial purposes embodied in the Civil Rights Acts — laws designed to insure to all citizens “the right to be free from deprivation of constitutional civil rights.” Brazier v. Cherry, 293 F.2d at 409. We therefore decline to apply Louisiana law of survival. As the Supreme Court said in Moor v. County" }, { "docid": "8771992", "title": "", "text": "purpose, and that is to test the legal sufficiency of the allegations, not of the evidence likely to be introduced at trial or on a motion for summary judgment.” In re Digital Equipment Corp. Securities Litigation, 601 F.Supp. 311, 313 n.2 (D.Mass.1984). The court must “assume the truth of all well-pleaded facts and indulge all reasonable inferences that fit the plaintiffs stated theory of liability.” Redondo-Borges v. United States Dept. of Housing and Urban Development, 421 F.3d 1, 5 (1st Cir.2005). A claim should be dismissed pursuant to Rule 12(b)(6) “only if ‘it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.’” Roeder v. Alpha Industries, 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)). B. Whether the Claim Abated Upon the Death of the Son The initial question presented is whether an action under 42 U.S.C. § 1983 alleging a deprivation of procedural due process survives the death of the party whose rights were allegedly violated. No federal statute directly addresses the issue: “federal law simply does not ‘cover every issue that may arise in the context of a federal civil rights action.’ ” Robertson v. Wegmann, 436 U.S. 584, 588, 98 S.Ct. 1991, 56 L.Ed.2d 554 (1978) (quoting Moor v. County of Alameda, 411 U.S. 693, 702, 93 S.Ct. 1785, 36 L.Ed.2d 596 (1973)). Under 42 U.S.C. § 1988, where federal law is silent, state law normally governs, unless inconsistent with federal law: [I]n all cases where [federal laws] are not adapted to the object, or are deficient in the provisions necessary to furnish suitable remedies and punish offenses against law, the common law, as modified and changed by the constitution and statutes of the State wherein the court having jurisdiction of such civil or criminal cause is held, so far as the same is not inconsistent with the Consti tution and laws of the United States, shall be extended to and govern the said courts in the trial and disposition" }, { "docid": "7888040", "title": "", "text": "ORDER JOHNSON, Chief Judge. This cause is now submitted upon separate motions of the individual state defendants and of the United States for this Court to enter summary judgments in their favor with respect to certain claims. The submission is upon the pleadings, depositions, affidavits, interrogatories, documents, and briefs of the parties. Motion for summary judgment by the individual state defendants. The defendants Myers, Chenault, Burleson, Strandell, Adams, and Bush (hereinafter, the “state defendants”) move this Court to enter partial summary judgments in their favor with respect to all claims filed by plaintiff administrators and executors whose decedents died more than two years preceding the filing of the original complaint in this cause on July 24, 1973. Claims have been alleged against the state defendants arising under both federal law and state law: (1) Federal law. Plaintiffs have stated claims against the state defendants arising under 42 U.S.C. §§ 1981, 1983,1985, and 1986. Since there is no express federal remedy for wrongful death under the civil rights statutes (42 U.S.C. §§ 1981, 1983, and 1985), the common and statutory law of the State of Alabama must be looked to for a suitable remedy not inconsistent with the Constitution and laws of the United States. 42 U.S.C. § 1988. An action against these state defendants for the wrongful deaths of plaintiffs’ decedents resulting from violations of the civil rights statutes gives rise, by virtue of Alabama's wrongful death statute, to federally enforceable claims for damages by their personal representatives. Brazier v. Cherry, 293 F.2d 401 (5th Cir. 1961), cert. denied, 368 U.S. 921, 82 S.Ct. 243, 7 L.Ed.2d 136 (1961), cited with approval in Moor v. County of Alameda, 411 U.S. 693, 702-703, n. 14, 93 S.Ct. 1785, 36 L.Ed.2d 596 (1973). With the exception of 42 U.S.C. § 1986, which will be considered below, none of the civil rights statutes at issue in this motion contains a statutory period of limitation. It is well established that in such instances where Congress has provided no period of limitation for a federal claim, the federal court must borrow the applicable statute of" }, { "docid": "14222705", "title": "", "text": "be as he amplifies them in his answers to interrogatories. I Shirer moves to dismiss the case here as moot on the ground that Dean died on April 6, 1975, and that his action under 42 U.S.C. § 1983 does not survive. Counsel for plaintiff has moved to substitute Mrs. Clyde C. Dean, administratrix of the Estate of Clyde C. Dean, as the proper party to this action. The Supreme Court has noted in Moor v. County of Alameda, 411 U.S. 693, 702-03 and n. 14, 93 S.Ct. 1785, 1792, 36 L.Ed.2d 596 (1973), that the question of survivability under 42 U.S.C. § 1983 is an area which is not covered by existing federal law. Although dictum, the Court suggests, “Pursuant to § 1988 state survivorship statutes which reverse the common-law rule may be used in the context of actions brought under § 1983,” and refers to Brazier v. Cherry, 293 F.2d 401 (5th Cir.), cert. den., 368 U.S. 921 (1961), 82 S.Ct. 243, 7 L.Ed.2d 136. Several circuits have stated it is appropriate for federal courts to look to state law to determine whether a § 1983 action survives: Spence v. Staras, 507 F.2d 554 (7th Cir. 1974); Hall v. Wooten, 506 F.2d 564 (6th Cir. 1974); Brazier v. Cherry, 293 F.2d 401 (5th Cir.), cert. den., 368 U.S. 921, 82 S.Ct. 243, 7 L.Ed.2d 136 (1961); see Mattis v. Schnarr, 502 F.2d 588 (8th Cir. 1974). And in Scott v. Vandiver, 476 F.2d 238 (4th Cir. 1973), in which this court looked to state law to ascertain a sheriff’s responsibility in a § 1983 action for the actions of his subordinates, we noted, at page 242, that in questions of survivability of a § 1983 cause of action, federal courts have relied on state law, citing Brazier v. Cherry, supra. The court, in Brazier, pointed out that while Congress has the “constitutional power to spell out a comprehensive right of survival for civil rights claims,” 293 F.2d at 406, Congress has not exercised this power and therefore resort must be taken to state law, by authority of 42" }, { "docid": "2852879", "title": "", "text": "stalking abroad in disguise, while whipping and lynchings and banishment have been visited upon unoffending American citizens, the local ad- ministrations have been found inadequate or unwilling to apply the proper correction. Id. at 374. Similarly, Congressman Butler stated that: This then is what we offer to a man whose house has been burned, as a remedy; to the woman whose husband has been murdered, as a remedy; to the children whose father has been killed, as a remedy. Id. at 807. The general rule in this area, adopted by the circuits and approved by the Supreme Court, is that § 1983 actions survive the plaintiff’s death if that would be the result under the applicable state law. See Moor v. Cty. of Alameda, 411 U.S. 693, 702-03 n. 14, 93 S.Ct. 1785, 1792 n.14, 36 L.Ed.2d 596 (1973); Brazier v. Cherry, 293 F.2d 401 (5th Cir.) cert. denied, 368 U.S. 921, 82 S.Ct. 243, 7 L.Ed.2d 136 (1961); see also Duchesne v. Sugarman, 566 F.2d 817, 821 (2d Cir. 1977); Beard v. Robinson, 563 F.2d 331, 333 (7th Cir. 1977), cert. denied, 438 U.S. 907, 98 S.Ct. 3125, 57 L.Ed.2d 1149 (1978); (Bivens action); Pritchard v. Smith, 289 F.2d 153 (8th Cir. 1961) (action survived the defendant’s death); Salazar v. Dowd, 256 F.Supp. 220, 222-23 (D.Colo.1966). As stated by the Fifth Circuit in Brazier v. Cherry, the lead case in this area: [I]t defies history to conclude that congress purposely meant to assure to the living freedom from such unconstitutional deprivation but that, with like precision, it meant to withdraw the protections of the Civil Rights statutes against the peril of death. The policy of law and the legislative aim was certainly to protect the security of life and limb as well as property against these actions. Violent injury that would kill was not less prohibited than violence that would cripple. 293 F.2d at 404. The statutory mechanism that authorizes resort to state survival law to permit civil rights actions to survive the plaintiffs death is 42 U.S.C. § 1988. Because § 1983 is silent on the question of" }, { "docid": "840895", "title": "", "text": "not explicitly provide for the survival of a civil rights action. Defendants’ contention is without merit. Congress has provided that: “[I]n all cases where [federal statutes for the protection of civil rights] are not adapted to the object, or are deficient in the provisions necessary to furnish suitable remedies . . ., the common law, as modified and changed by the constitution and statutes of the State wherein the court having jurisdiction of such . cause is held, so far as the same is not inconsistent with the Constitution and laws of the United States, shall be extended to and govern the said courts in the trial and disposition of the cause . Civil Rights Act of 1866, 42 U.S.C. § 1988. This provision has been held to fill the gap in § 1983 caused by the death of a victim by authorizing adoption of state survival statutes. This conclusion derives from the history and purpose of the Civil Rights Acts as a means of redress for deprivations of constitutional rights. As the Court of Appeals explained in Brazier v. Cherry, 293 F.2d 401, 404 (5th Cir.), cert. denied, 368 U.S. 921, 82 S.Ct. 243, 7 L.Ed.2d 136 (1961): “[I]t defies history to conclude that Congress purposely meant to assure to the living freedom from such unconstitutional deprivations, but that, with like precision, it meant to withdraw the protection of civil rights statutes against the peril of death. The policy of the law and the legislative aim was certainly to protect the security of life and limb as well as property against these actions. Violent injury that would kill was not less prohibited than violence which would cripple.” [Footnote omitted.] The line of cases reaching this conclusion has been cited with approval by the Supreme Court. See Moor v. County of Alameda, 411 U.S. 693, 702-03 n. 14, 93 S.Ct. 1785, 36 L.Ed.2d 596 (1973). Pennsylvania law provides for the survival of actions. Pennsylvania Survival Act, 20 Pa.C.S.A. §§ 3371 et seq. It is therefore clear that plaintiff may sue in her representative capacity to redress deprivations of decedent’s civil" }, { "docid": "1018243", "title": "", "text": "injured party. In addressing the very issue presented herein, the United States Supreme Court in Robertson v. Wegmann, 436 U.S. 584, 98 S.Ct. 1991, 56 L.Ed.2d 554 (1978), mandated that determination of the applicable survivorship rule for actions arising pursuant to 42 U.S.C. § 1983, was governed by 42 U.S.C. § 1988. In Robertson, the Court stated that: This statute recognizes that in certain areas “federal law is unsuited or insufficient ‘to furnish suitable remedies’ federal law simply does not “cover every issue that may arise in the context of a federal civil rights action.” Moor v. County of Alameda, 411 U.S. 693, 702, 703, 93 S.Ct. 1785, 1795, 1792, 36 L.Ed.2d 596 (1973), quoting 42 U.S.C. § 1988. When federal law is thus “deficient”, § 1988 instructs us to turn to “the common law, as modified and changed by the constitution and statutes of the (forum) State,” as long as these are “not inconsistent with the Constitution and laws of the United States.” * * * * * 4= [0]ne specific area not covered by federal law is that relating to “the survival of civil rights actions under § 1983 upon the death of either the plaintiff or defendant.” 436 U.S. at 587, 589, 98 S.Ct. at 1994. As noted in Robertson v. Wegmann, the law of the forum is “the principle reference point in determining survival of civil rights actions, subject to the important proviso that state law may not be applied when it is ‘inconsistent with the Constitution and laws of the United States’ ”. 436 U.S. at 590, 98 S.Ct. at 1995. [emphasis added]. Accordingly, a review of the law of the State of Ohio as it applies in this case is in order. Ohio’s survival of actions statute, Ohio Rev.Code § 2305.21 reads [emphasis added]: In addition to the causes of action which survive at common law, causes of action for mesne profits, or injuries to the person or property, or for deceit or fraud, also shall survive; and such actions may be brought notwithstanding the death of the person entitled or liable thereto. Ohio’s" }, { "docid": "8617567", "title": "", "text": "the common law, as modified and changed by the constitution and statutes of the State wherein the court having jurisdiction of such civil or criminal cause is held, so far as the United States, shall be extended to and govern the said courts in the trial and disposition of the cause, and, if it is of a criminal nature, in the infliction of punishment on the party found guilty.” In effect, § 1988 sets forth a three step process for determining the applicable substantive law in civil rights cases. First, the Court must decide whether the Civil Rights Acts are “deficient” in furnishing a remedy for the vindication of a plaintiff’s civil rights. If this inquiry is answered affirmatively, we are then directed to look to state law to fill the interstices in the federal provisions. Finally, if there is state law available to fill the gap in the federal statutes, we must insure that the state law is not inconsistent with federal statutory and constitutional law. This Court has already determined that the civil rights statutes are deficient with respect to survivorship. Brazier v. Cherry, 5 Cir. 1961, 293 F.2d 401, 408, cert. denied, 1961, 368 U.S. 921, 82 S.Ct. 243, 7 L.Ed.2d 136. Other courts, including the Supreme Court, have reached the same conclusion. Moor v. County of Alameda, 1973, 411 U.S. 693, 702, n. 14, 93 S.Ct. 1785, 36 L.Ed.2d 596. Pritchard v. Smith, 8 Cir. 1961, 289 F.2d 153, 155. We therefore must apply Louisiana’s survivorship law unless that law “is inconsistent with the Constitution and laws of the United States.” In analyzing whether La.Civ.Code Ann. art. 2315 is incompatible with federal law, it is important to clarify the type of action we are dealing with. As the district court stressed: “We emphasize at the outset that we are not concerned with wrongful death actions for damages to others caused by the tort victim’s death. Also to be distinguished are survival of causes of action, where the tort victim dies without bringing suit, and the question is whether a party may institute suit to recover for" }, { "docid": "10484329", "title": "", "text": "F.2d 1003 (5th Cir.1984), and Johnson v. Rogers, 621 F.2d 300 (8th Cir.1980), argue that federal law is deficient on this issue and state law controls. Neither party has cited nor has the court found any controlling pronouncement from the Second Circuit Court of Appeals. “Whether a right of contribution [or set-off] exists on behalf of § 1983 defendants who are jointly and severally liable is a complex, open question.” M. Schwartz & J. Kirklin, Section 1983 Litigation: Claims, Defenses, and Fees, § 14.14 at 314 (1986 & Supp.1987) (“§ 1983 Litigation”). The answer begins with 42 U.S.C. § 1988 which provides, in relevant part: The jurisdiction in civil ... matters conferred on the district courts by the provisions of this chapter ... for the protection of all persons in the United States in their civil rights, and for their vindication, shall be exercised and enforced in conformity with the laws of the United States, so far as such laws are suitable to carry the same into effect; but in all cases where they are not adapted to the object, or are deficient in the provisions necessary to furnish suitable remedies ... the common law, as modified and changed by the constitution and statutes of the State wherein the court having jurisdiction of such civil or criminal cause is held, so far as the same is not inconsistent with the Constitution and laws of the United States, shall be extended to and govern the said courts in the trial and disposition of the cause. “This statute recognizes that in certain areas ‘federal law is unsuited or insufficient “to furnish suitable remedies;” ’ federal law simply does not ‘cover every issue that may arise in the context of a federal civil rights action.’ ” Robertson v. Wegmann, 436 U.S. 584, 588, 98 S.Ct. 1991, 1994, 56 L.Ed.2d 554 (1978), quoting Moor v. County of Alameda, 411 U.S. 693, 703, 702, 93 S.Ct. 1785, 1792, 36 L.Ed.2d 596 (1973), quoting 42 U.S.C. § 1988. When federal law is deficient, § 1983 “invites federal courts to adopt state rules to further, but not" }, { "docid": "23196379", "title": "", "text": "a remedy for wrongful killings that resulted from the proscribed conduct, the statute itself does not provide a mechanism to implement such a remedy. See, e.g., Bell v. City of Milwaukee, 746 F.2d 1205, 1239 (7th Cir.1984); Brazier v. Cherry, 293 F.2d 401, 404-05 (5th Cir.), cert. denied, 368 U.S. 921, 82 S.Ct. 243, 7 L.Ed.2d 136 (1961). For instance, when the constitutional violation has resulted in death, § 1983 does not specify whether the cause of action it creates survives the death, who are the injured parties, the nature of the claims that may be pursued or who may pursue them, or the types of damages recoverable. We are not left totally without guidance, however, in that 42 U.S.C. § 1988 authorizes federal courts to undertake a three-step process to determine whether to borrow law from another source to aid their enforcement of federal civil rights statutes. See, e.g., Wilson v. Garcia, 471 U.S. at 267, 105 S.Ct. at 1942; Burnett v. Grattan, 468 U.S. 42, 47-48, 104 S.Ct. 2924, 2928, 82 L.Ed.2d 36 (1984). Section 1988 first directs that courts look to federal law “so far as such laws are suitable to carry [the civil and criminal civil rights statutes] into effect.” 42 U.S.C. § 1988. Second, if federal law is “not adapted to the object” or is “deficient in the provisions necessary to furnish suitable remedies and punish offenses,” courts must consider borrowing the law of the forum state. Id. Third, the federal court must reject the application of state law if it is “inconsistent with the Constitution and laws of the United States.” Id. The Supreme Court once granted certio-rari to consider whether § 1983, independently or in conjunction with state law, may be used by survivors when the decedent’s death resulted from a constitutional violation, and, if so, whether state law must be used as the measure of damages. Jones v. Hildebrant, 432 U.S. 183, 184-85, 97 S.Ct. 2283, 2284-85, 53 L.Ed.2d 209 (1977). But it dismissed the case without deciding the issue because the claim of the plaintiff-petitioner, mother of the decedent, was not" }, { "docid": "7454420", "title": "", "text": "Court’s file indicates that this action was commenced on April 13, 1973, well over two years since plaintiff’s discharge. The uncontested evidence before the Court reflects that the plaintiff filed charges with the Commission on January 7, 1971, against Dobbs Houses, Inc. There is no evidence in the record that plaintiff filed charges against any other defendant in this proceeding. Plaintiff has not filed an affidavit contesting the facts set out in the affidavit submitted by the defendant. The Court concludes, with respect to all claims under §§ 1981 and 1985(3), that the one-year Alabama statute of limitations bars plaintiff from proceeding against any defendant, save Dobbs Houses, Inc. Neither 42 U.S.C. § 1981 or § 1985(3) provide limitations for the causes of action which they create. The federal courts, therefore,- must look to the most nearly analogous state statute of limitation which will determine the time within which a cause of action may be commenced. 28 U.S.C. § 1652; 42 U.S. C. § 1988. The application of state limitation statutes for federally-created causes of action under the Reconstruction Civil Rights Acts, 42 U.S.C. §§ 1981-1985 is well settled. O’Sullivan v. Felix, 233 U.S. 318, 34 S.Ct. 596, 58 L.Ed. 980 (1914). As the Fifth Circuit concluded in Beard v. Stephens, 372 F.2d 685 (5th Cir. 1967): Congress has created many federal rights without prescribing a period of enforcement. In such cases the federal courts borrow'the limitations period prescribed by the state where the court sits. The applicable period of limitations is that which the state itself would enforce had an action seek ing similar relief been brought in the court of that state. * * * # * * We look first to federal laws to determine the nature of the claim and then to the state court interpretation of the state’s “statutory catalogue” to see where the claim fits into the state’s scheme. Id. at 688. See also, e. g., Duncan v. Nelson, 466 F.2d 939 (7th Cir. 1972); Nevels v. Wilson, 423 F.2d 691 (5th Cir. 1970); Knowles v. Carson, 419 F.2d 369 (5th Cir. 1869). The" }, { "docid": "3709253", "title": "", "text": "OPINION AND ORDER GIERBOLINI, Senior District Judge. This Opinion and Order addresses the motion to dismiss filed by co-defendant Luyando’s estate and the motion to substitute parties filed by the plaintiff. Informative Motion and Request for Relief Thereof, docket # 78, asks for dismissal of this action against co-defendant Luyando because he died early in 1993. The plaintiff filed his Opposition to the dismissal, docket # 79, and the estate of co-defendant Luyando filed an Opposition to Plaintiffs Opposition, docket # 81. We deny the co-defendant’s motion to dismiss Luyando from this action. In Moor v. Alameda County, 411 U.S. 693, 702-3 n. 14, 93 S.Ct. 1785, 1792, n. 14, 36 L.Ed.2d 596 (1973), the U.S. Supreme Court recognized that 42 U.S.C. § 1983 does not address the issue of the survivorship of civil rights actions upon the death of a plaintiff or a defendant. It stated that “[although an injured party’s personal claim was extinguished at common law upon the death of either the injured party himself or the alleged wrongdoer ... it has been held that pursuant to § 1988 state survivorship statutes which reverse the common-law rule may be used in the context of actions brought under § 1983.” See also Robertson v. Wegmann, 436 U.S. 584, 588-90, 98 S.Ct. 1991, 1994-95, 56 L.Ed.2d 554 (1978) (under 42 U.S.C. § 1988, state survivorship statutes provide “the principal reference point in determining survival of civil rights actions” unless the state law is “ ‘inconsistent with the Constitution and the laws of the United States’ ”). Many federal district and appellate courts have addressed the issue of the survivorship of civil rights actions, coming out with different results depending on the pertinent state survivorship statute. See White v. Walsh, 649 F.2d 560, 562 n. 4 (8th Cir.1981) (civil rights claim that defendants conspired to deny plaintiff a fair trial by empaneling an all-white jury survived the death of defendant), citing Gray v. Wallace, 319 S.W.2d 582, 584-85 (Mo.1958) (Mo. Supreme Court ruled that a plaintiffs cause of action for malicious prosecution did not abate by reason of the death" }, { "docid": "2852878", "title": "", "text": "1866 and 1870 civil rights acts and the Ku Klux Klan Act of 1871. These statutes provide relief to injured parties as a result of certain civil rights deprivations. These statutes are sadly lacking in detail, however, only sketching the barest parameters of recovery. In this regard, neither 42 U.S.C. §§ 1983 nor 1985(3) describes who the injured parties are when death occurs, the nature of the claims, the types of damages recoverable or the specific source of law to turn to for enlightenment. However, there is no question that congress intended, through these statutes, to deter official lawlessness, to compensate the bereaved families for the then-rampant state and local acts of officially-condoned murder and thereby provide remedies in death cases, as well as in situations involving non-fatal injuries. For example, President Grant’s message to congress specifically referred to losses of life which prompted his request for remedial federal legislation. See Cong. Globe, 42d Cong., 1st Sess., p.244. Floor debates on the bill frequently reflected that theme. Senator Lowe of Kansas stated: While murder is stalking abroad in disguise, while whipping and lynchings and banishment have been visited upon unoffending American citizens, the local ad- ministrations have been found inadequate or unwilling to apply the proper correction. Id. at 374. Similarly, Congressman Butler stated that: This then is what we offer to a man whose house has been burned, as a remedy; to the woman whose husband has been murdered, as a remedy; to the children whose father has been killed, as a remedy. Id. at 807. The general rule in this area, adopted by the circuits and approved by the Supreme Court, is that § 1983 actions survive the plaintiff’s death if that would be the result under the applicable state law. See Moor v. Cty. of Alameda, 411 U.S. 693, 702-03 n. 14, 93 S.Ct. 1785, 1792 n.14, 36 L.Ed.2d 596 (1973); Brazier v. Cherry, 293 F.2d 401 (5th Cir.) cert. denied, 368 U.S. 921, 82 S.Ct. 243, 7 L.Ed.2d 136 (1961); see also Duchesne v. Sugarman, 566 F.2d 817, 821 (2d Cir. 1977); Beard v. Robinson, 563" } ]

[ { "docid": "22370355", "title": "", "text": "district court’s order denying additional discovery for abuse of discretion. See United States v. Kitsap Physicians Serv., 314 F.3d 995, 1000 (9th Cir.2002). A party requesting a continuance pursuant to Rule 56(f) must identify by affidavit the specific facts that further discovery would reveal, and explain why those facts would preclude summary judgment. See Fed. R.Civ.P. 56(f); California v. Campbell, 138 F.3d 772, 779 (9th Cir.1998); see also 10B Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure § 2740 (3d ed.1998) (“when the movant has met the initial burden required for the granting of a summary judgment, the opposing party either must establish a genuine issue for trial under Rule 56(e) or explain why he cannot yet do so under Rule 56(f)”). Because Tatum did not satisfy the requirements of Rule 56(f), the district court did not abuse its discretion by denying her request for a continuance. See Kitsap, 314 F.3d at 1000 (“Failure to comply with [the requirements of Rule 56(f) ] is a proper ground for denying relief.”). Tatum’s request for a continuance did not identify the specific facts that further discovery would have revealed or explain why those facts would have precluded summary judgment. In a declaration supporting Tatum’s opposition, her counsel stated that he had not yet received transcripts of several witness’ depositions, including those of Officer Torres, Officer Busalacchi, and a paramedic who treated Fullard. The declaration does not, however, refer to any specific fact in these depositions or explain why the information contained in them was “essential to justify [Tatum’s] opposition.” Fed.R.Civ.P. 56(f). The declaration does not indicate that deferring the resolution of the defendants’ motion for summary judgment until the depositions had been transcribed and filed would have allowed Tatum to produce evidence creating a genuine issue of material fact as to whether any of the officers involved in Fullard’s arrest used excessive force. The declaration does not explain how a continuance would have allowed Tatum to produce evidence creating a factual issue regarding probable cause. Absent a showing by Tatum that additional discovery would have revealed" } ]

[ { "docid": "12823555", "title": "", "text": "judgment as a matter of law.” Fed.R.Civ.P. 56(c). The party seeking summary judgment “always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of ‘the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,’ which it believes demonstrate the absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) (quoting Fed.R.Civ.P. 56(c)). The movant may meet this standard by presenting evidence demonstrating the absence of a dispute of material fact or by showing that the nonmoving party has not presented evidence in support of an element of its case on which it bears the burden of proof. Id. at 322-23, 106 S.Ct. 2548. The moving party need not supply “affidavits or other similar materials negating the opponent’s claim.” Id. at 323, 106 S.Ct. 2548. Once the moving party meets its burden, the nonmoving party must “go beyond the pleadings and by her own affidavits, or by the ‘depositions, answers to interrogatories, and admissions on file,’ designate ‘specific facts showing that there is a genuine issue for trial.’ ” Id. at 324, 106 S.Ct. 2548 (quoting Fed.R.Civ.P. 56(e)). Although the nonmoving party need not present evidence that would be admissible at trial, it may not rest on his pleadings. Id. “[T]he plain language of rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party’s case, and on which that party will bear the burden of proof at trial.” Id. at 322, 106 S.Ct. 2548; see also Graham v. State Farm Mut. Ins. Co., 193 F.3d 1274, 1281-82 (11th Cir.1999). Under ERISA, the Plaintiff has “the burden of showing that [s]he is entitled to the ‘benefits under the terms of [the] plan.’ ” Stvartak v. Eastman Kodak Co., 945 F.Supp. 1532, 1536 (M.D.Fla.1996) aff'd, 144 F.3d 54 (11th Cir.1998) (quoting 29 U.S.C. § 1132(a)). See also" }, { "docid": "15729061", "title": "", "text": "impair [Firestone] from a return to work.” Id. at CF 20. By consequence, Liberty notified plaintiff on October 15, 2002, that it had affirmed its original decision to cap plaintiffs disability benefits at twenty-four months of payments. On August 22, 2003, plaintiff filed suit in this court, seeking reversal of Liberty’s decision to terminate his benefits. Now before this court is defendant’s motion for partial summary judgment on the sole issue of what standard of review this court must apply when evaluating defendant’s decision to terminate plaintiffs benefits. LEGAL STANDARD I. Summary Judgment Summary judgment is proper when the pleadings, discovery and affidavits show that there is “no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c). Material facts are those which may affect the outcome of the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A dispute as to a material fact is genuine if there is sufficient evidence for a reasonable jury to return a verdict for the nonmoving party. Id. The moving party for summary judgment bears the burden of identifying those portions of the pleadings, discovery and affidavits that demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). On an issue for which the opposing party will have the burden of proof at trial, the moving party need only point out “that there is an absence of evidence to support the non-moving party’s case.” Id. Once the moving party meets its initial burden, the nonmoving party must go beyond the pleadings and, by its own affidavits or discovery, “set forth specific facts showing that there is a genuine issue for trial.” Fed.R.Civ.P. 56(e). Mere allegations or denials do not defeat a moving party’s allegations. Id.; see also Gasaway v. Northwestern Mut. Life Ins. Co., 26 F.3d 957, 960 (9th Cir.1994). The court may not make credibility determinations, Anderson, 477 U.S. at 249, 106 S.Ct. 2505, and inferences" }, { "docid": "14008517", "title": "", "text": "this burden, “the non-moving party has no obligation to produce anything, even if the nonmoving party would have the ultimate burden of persuasion at trial.” Nissan Fire & Marine Ins. Co., Ltd. v. Fritz Cos., Inc., 210 F.3d 1099, 1102-03 (9th Cir.2000). However, if the nonmoving party has the burden of proof at trial, the moving party must only show “that there is an absence of evidence to support the nonmoving party’s case.” Celotex Corp., 477 U.S. at 325, 106 S.Ct. 2548. Once the moving party has met its burden of proof, the nonmoving party must produce evidence on which a reasonable trier of fact could find in its favor viewing the record as a whole in light of the evi-dentiary burden the law places on that party. See Triton Energy Corp. v. Square D Co., 68 F.3d 1216, 1221 (9th Cir.1995). The nonmoving party cannot simply rest on its allegations without any significant probative evidence tending to support the complaint. See Nissan Fire & Marine Ins. Co. v. Fritz Cos., 210 F.3d 1099, 1107 (9th Cir.2000). Instead, the nonmoving party, through affidavits or other admissible evidence, “must set forth specific facts showing that there is a genuine issue for trial.” Fed.R. Civ.P 56(e). [T]he plain language of Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to the 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., 477 U.S. at 322-23, 106 S.Ct. 2548. Evidence submitted in support of, or in opposition to, a motion for summary judgment must be admissible under the standard articulated in 56(e). Properly authenticated documents can be used in a motion for summary judgment if appropriately authenticated by affidavit or declaration. See Hal Roach Studios" }, { "docid": "820834", "title": "", "text": "91 L.Ed.2d 202 (1986). A dispute as to a material fact is genuine if there is sufficient evidence for a reasonable jury to return a verdict for the nonmoving party. Id. The party moving for summary judgment bears the burden of identifying those portions of the pleadings, discovery and affidavits that demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). On an issue for which the opposing party will have the burden of proof at trial, the moving party need only point out “that there is an absence of evidence to support the nonmoving party’s case.” Id. Once the moving party meets its initial burden, the nonmoving party must go beyond the pleadings and, by its own affidavits or discovery, “set forth specific facts showing that there is a genuine issue for trial.” Fed.R.Civ.P. 56(e). Mere allegations or denials do not defeat a moving party’s allegations. Id.; Gasaway v. Nw. Mut. Life Ins. Co., 26 F.3d 957, 960 (9th Cir.1994). The court may not make credibility determinations, and inferences to be drawn from the facts must be viewed in the light most favorable to the party opposing the motion. Masson v. New Yorker Magazine, 501 U.S. 496, 520, 111 S.Ct. 2419, 115 L.Ed.2d 447 (1991); Anderson, 477 U.S. at 249, 106 S.Ct. 2505. The moving party may “move with or without supporting affidavits for a summary judgment in the party’s favor upon all [claims] or any part thereof.” Fed. R.Civ.P. 56(a). “Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein.” Fed.R.Civ.P. 56(e). DISCUSSION “Whether an activity is excluded from hours worked under the FLSA ... is a mixed question of law and fact. The nature of the employees’ duties is a question of fact, and the application of the FLSA to those duties is a question of law.” Ballaris v. Wacker Siltronic Corp., 370 F.3d 901," }, { "docid": "5656535", "title": "", "text": "after the report was posted, an “unknown third party” was able to electronically remove the redactions and expose the unredacted text of the report. Id. ¶ 4. The unredacted report was then posted on various websites. Id. Plaintiffs also assert that some ROE for U.S. forces in Iraq are publicly available, including copies sold on the internet. See Pis.’ Exh. E (screenshot of eBay webpage purporting to sell ROE cards). LEGAL STANDARD Summary judgment is proper when the pleadings, discovery, and affidavits show that there is “no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c). Material facts are those which may affect the outcome of the proceedings. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A dispute as to a material fact is genuine if there is sufficient evidence for a reasonable jury to return a verdict for the nonmoving party. Id. The party moving for summary judgment bears the burden of identifying those portions of the pleadings, discovery, and affidavits that demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). On an issue for which the opposing party will have the burden of proof at trial, the moving party need only point out “that there is an absence of evidence to support the non-moving party’s case.” Id. Once the moving party meets its initial burden, the nonmoving party must go beyond the pleadings and, by its own affidavits or discovery, “set forth specific facts showing that there is a genuine issue for trial.” Fed.R.Civ.P. 56(e). Mere allegations or denials do not defeat a moving party’s allegations. Id.; see also Gasaway v. Northwestern Mut. Life Ins. Co., 26 F.3d 957, 960 (9th Cir.1994). The court may not make credibility determinations, Anderson, 477 U.S. at 249, 106 S.Ct. 2505, and inferences drawn from the facts must be viewed in the light most favorable to the party opposing the motion. Masson v. New" }, { "docid": "14587503", "title": "", "text": "for the non-moving party. See id. at 248-49, 106 S.Ct. 2505. The party moving for summary judgment has the initial burden of identifying those portions of the pleadings, discovery and disclosures on file, and affidavits that demonstrate the absence of a genuine issue of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). When the nonmoving party has the burden of proof at trial, the moving party need point out only “that there is an absence of evidence to support the nonmoving party’s case.” Id. at 325, 106 S.Ct. 2548. If the moving party meets this initial burden, the non-moving party must go beyond the pleadings and — by its own affidavits or discovery — set forth specific facts showing a genuine issue for trial. See Fed.R.Civ.P. 56(e); Celotex, 477 U.S. at 324, 106 S.Ct. 2548; Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). If the non-moving party does not produce evidence to show a genuine issue of material fact, the moving party is entitled to summary judgment. See Celotex, 477 U.S. at 323, 106 S.Ct. 2548. In ruling on a motion for summary judgment, inferences drawn from the underlying facts are viewed in the light most favorable to the non-moving party. See Matsushita, 475 U.S. at 587, 106 S.Ct. 1348. Here, Plaintiff did not file a brief, and Defendants thus assert that the Court should grant summary judgment. See Defendants’ Reply, ECF No. 72 at 2. A court may not grant a summary judgment motion solely because the opposing party fails to file an opposition. The court must still review the sufficiency of Defendants’ motion under the summary judgment standard. See Martinez v. Stanford, 323 F.3d 1178, 1182-83 (9th Cir.2003) (local rule cannot mandate automatic entry of judgment for moving party without considering whether motion satisfies Rule 56); Henry v. Gill Indus., 983 F.2d 943, 950 (9th Cir.1993) (same). IV. DISCUSSION A. Excessive Force Claims (Claims One, Five, Six, Seven, Eight, and Eleven) Plaintiff asserts that officers of the" }, { "docid": "5541194", "title": "", "text": "brought within two years of J. Mata’s acquittal, some claims are timely. See Tr. at 31:25-32:6 (Montoya). STANDARD FOR SUMMARY JUDGMENT Summary judgment shall be granted “if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(c)(2). The movant bears the initial burden of “showing] that there is an absence of evidence to support the nonmoving party’s case.” Bacchus Indus., Inc. v. Arvin Indus., Inc., 939 F.2d 887, 891 (10th Cir.1991)(internal quotation marks omitted). See Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Once the movant meets this burden, rule 56(e) requires the non-moving party to designate specific facts that would be admissible in evidence showing that there is a genuine issue for trial. See Celotex Corp. v. Catrett, 477 U.S. at 324, 106 S.Ct. 2548. Rule 56 provides that “an opposing party may not rely merely on allegations or denials in its own pleadings; rather, its response must — by affidavits or as otherwise provided in this rule — set out specific facts showing a genuine issue for trial.” Fed.R.Civ.P. 56(e)(2). “It is not enough for the party opposing a properly supported motion for summary judgment to “rest on mere allegations or denials of his pleadings.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Vitkus v. Beatrice Co., 11 F.3d 1535, 1539 (10th Cir.1993) (“However, the nonmoving party may not rest on its pleadings but must set forth specific facts showing that there is a genuine issue for trial as to those dispositive matters for which it carries the burden of proof.”)(internal quotation omitted); Applied Genetics Int’l, Inc. v. First Affiliated Sec., Inc., 912 F.2d 1238, 1241 (10th Cir.1990) (the party opposing a motion for summary judgment must “set forth specific facts showing that there is a genuine issue for trial as to those dispositive matters for which it carries the burden of proof.”);" }, { "docid": "11747850", "title": "", "text": "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). Rule 56 further requires the entry of summary judgment, after adequate time for discovery, 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, 91 L.Ed.2d 265 (1986) (citing Fed.R.Civ.P. 56(c)). “[S]um- mary judgment is appropriate — in fact, is mandated — where there are no disputed issues of material fact and the movant must prevail as a matter of law. In other words, the record must reveal that no reasonable jury could find for the non-moving party.” Dempsey v. Atchison, Topeka, & Santa Fe Ry. Co., 16 F.3d 832, 836 (7th Cir.1994) (citations and quotations omitted). A party seeking summary judgment bears the initial responsibility of informing the court of the basis for its motion and identifying those portions of the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, that it believes demonstrate the absence of a genuine issue of material fact. See Celotex, 477 U.S. at 323, 106 S.Ct. 2548; Fed.R.Civ.P. 56(c). The moving party may discharge its initial responsibility by simply “ ‘showing’ — that is, pointing out to the district court — that there is an absence of evidence to support the nonmoving party’s case.” Celotex, 477 U.S. at 325, 106 S.Ct. 2548. When the nonmoving party would have the burden of proof at trial, the moving party is not required to support its motion with affidavits or other similar materials negating the opponent’s claim. Celotex, 477 U.S. at 323, 325, 106 S.Ct. 2548; Green v. Whiteco Indus., Inc., 17 F.3d 199, 201 n. 3 (7th Cir.1994); Fitzpatrick v. Catholic Bishop of Chi, 916 F.2d 1254, 1256 (7th Cir.1990). However, the moving party, if it chooses, may support its motion for summary judgment with affidavits or other materials, and, if" }, { "docid": "12565509", "title": "", "text": "of the record which are believed to show the absence of a genuine issue of material fact. Id. at 323, 106 S.Ct. at 2553. This defendants have done. If the moving party does not bear the burden of proof at trial and that party makes a showing to demonstrate the absence of a genuine issue of material fact, the nonmoving party cannot rest on its pleadings but must make a specific showing of facts presenting a genuine issue for trial. Id. at 323-24, 106 S.Ct. at 2553; Fed.R.Civ.P. 56(e). Plaintiff has failed to make such a showing and, for the reasons expressed infra, the court does not believe that allowing plaintiff more time for discovery would enable plaintiff to make such a showing. As a general rule, granting summary judgment prior to the completion of all discovery is inappropriate. See Snook v. Trust Co. of Ga. Bank of Savannah, N.A., 859 F.2d 865, 870 (11th Cir.1988); Visa Int’l Serv. Ass’n v. Bankcard Holders, 784 F.2d 1472, 1475 (9th Cir.1986); see also Celotex, 477 U.S. at 322, 106 S.Ct. at 2552 (summary judgment appropriate only “after adequate time for discovery”). Under Federal Rule 56(f), the district court has discretionary authority to deny a motion for summary judgment in response to the nonmoving party’s plea for additional discovery. The Supreme Court has stated that Rule 56(e)’s requirement that the party opposing a summary judgment motion set forth specific facts showing that there is a genuine issue for trial “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.” 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). The relevant question is whether the non-movant has sufficiently identified the information sought by discovery, the reasons the information has not yet been obtained, and the materiality of the information to its opposition to the summary judgment motion. See generally 10A C. Wright, A. Miller, & M. Kane, Federal Practice and Procedure: Civil 2d" }, { "docid": "23355051", "title": "", "text": "to Bifurcate Damages Issues to which the Plaintiff did not respond. DEFENDANT’S MOTION FOR SUMMARY JUDGMENT A. Summary Judgment Standard The Federal Rules of Civil Procedure mandate that motions for summary judgment be granted “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(c). “In other words, the record must reveal that no reasonable jury could find for the nonmoving party.” Dempsey v. Atchison, Topeka, & Santa Fe Ry. Co., 16 F.3d 832, 836 (7th Cir.1994) (citations and quotation marks omitted). Rule 56(c) further requires the entry of summary judgment, after adequate time for discovery, 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, 91 L.Ed.2d 265 (1986). A party seeking summary judgment bears the initial responsibility of informing a court of the basis for its motion and identifying those portions of the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, which it believes demonstrate the absence of a genuine issue of material fact. Celotex, 477 U.S. at 323, 106 S.Ct. 2548. The moving party may discharge its “initial responsibility” by simply “ ‘showing’ — that is, pointing out to the district court — that there is an absence of evidence to support the non-moving party’s case.” Id. at 325, 106 S.Ct. 2548. When the non-moving party would have the burden of proof at trial, the moving party is not required to support its motion with affidavits or other similar materials negating the opponent’s claim. Id. at 323, 325, 106 S.Ct. 2548; Green v. Whiteco Indus., Inc., 17 F.3d 199, 201 n. 3 (7th Cir.1994); Fitzpatrick v. Catholic Bishop of Chicago, 916 F.2d 1254, 1256 (7th Cir.1990). However, the moving" }, { "docid": "12565508", "title": "", "text": "judgment on the grounds that the RI/FS now under way at the Oxford site might turn up additional evidence which plaintiff did not consider when making its decisions, but which might now justify those decisions. The court finds this argument to be without merit. Under Fed.R.Civ.P. 56(c), summary judgment “shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Summary judgment is properly awarded against a party who fails to make a showing sufficient to establish the existence of an element essential to its case, and on which it 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 party moving for summary judgment has the initial burden of informing the court of the basis of the motion and identifying those portions of the record which are believed to show the absence of a genuine issue of material fact. Id. at 323, 106 S.Ct. at 2553. This defendants have done. If the moving party does not bear the burden of proof at trial and that party makes a showing to demonstrate the absence of a genuine issue of material fact, the nonmoving party cannot rest on its pleadings but must make a specific showing of facts presenting a genuine issue for trial. Id. at 323-24, 106 S.Ct. at 2553; Fed.R.Civ.P. 56(e). Plaintiff has failed to make such a showing and, for the reasons expressed infra, the court does not believe that allowing plaintiff more time for discovery would enable plaintiff to make such a showing. As a general rule, granting summary judgment prior to the completion of all discovery is inappropriate. See Snook v. Trust Co. of Ga. Bank of Savannah, N.A., 859 F.2d 865, 870 (11th Cir.1988); Visa Int’l Serv. Ass’n v. Bankcard Holders, 784 F.2d 1472, 1475 (9th Cir.1986); see also Celotex, 477 U.S. at" }, { "docid": "20414222", "title": "", "text": "is appropriate when “the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c). A party moving for summary judgment “always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, which it believes demonstrate the absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) (internal quotation marks omitted). Where the movant will have the burden of proof on an issue at trial, it must “affirmatively demonstrate that no reasonable trier of fact could find other than for the moving party.” Soremekun v. Thrifty Payless, Inc., 509 F.3d 978, 984 (9th Cir.2007); see also S. Cal. Gas Co. v. City of Santa Ana, 336 F.3d 885, 888 (9th Cir.2003) (noting that a party moving for summary judgment on claim as to which it will have the burden at trial “must establish beyond controversy every- essential element” of the claim) (internal quotation marks omitted). With respect to an issue as to which the non-moving party will have the burden of proof, the movant “can prevail merely by pointing out that there is an absence of evidence to support the non-moving party’s case.” Soremekun, 509 F.3d at 984. When a motion for summary judgment is properly made and supported, the nonmovant cannot defeat the motion by resting upon the allegations or denials of its own pleading, rather the “non-moving party must set forth, by affidavit or as otherwise provided in Rule 56, ‘specific facts showing that there is a genuine issue for trial.’ ” Id. (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)). “Conelusory, speculative testimony in affidavits and moving papers is insufficient to raise genuine issues of fact and defeat summary judgment.” Id. To" }, { "docid": "3364626", "title": "", "text": "entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party’s case, and on which that party will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986). The party moving for summary judgment “bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of ‘the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,’ which it believes demonstrate the absence of a genuine issue of material fact.” Id. at 323, 106 S.Ct. at 2553. When the moving party does not bear the burden of persuasion at trial, as is the ease here, its burden “may 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. Once the moving party has filed a properly supported motion, the burden shifts to the nonmoving party to “set forth specific facts showing that there is a genuine issue for trial.” Fed.R.Civ.P. 56(e). The nonmoving party “may not rest upon the mere allegations or denials of the [nonmoving] party’s pleading,” id., but must support its response with affidavits, depositions, answers to interrogatories, or admissions on file. See Celotex, 477 U.S. at 324, 106 S.Ct. at 2553; Schoch v. First Fidelity Bancorporation, 912 F.2d 654, 657 (3d Cir.1990). Although the evidence presented on a motion for summary judgment does not have to be in admissible form, see Celotex, 477 U.S. at 324, 106 S.Ct. at 2553, Rule 56(e) requires the presentation of evidence “as would be admissible” at trial, see Fed.R.Civ.P. 56(e), and thus the evidence must be “reducible] to admissible evidence” at trial, see Celotex, 477 U.S. at 327, 106 S.Ct. at 2555. See, e.g., J.F. Feeser, Inc. v. Serv-A-Portion, Inc., 909 F.2d 1524, 1542 (3d Cir.1990); Williams v. Borough of" }, { "docid": "112332", "title": "", "text": "moving party is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c). Material facts are those which may affect the outcome of the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A dispute as to a material fact is genuine if there is sufficient evidence for a reasonable jury to return a verdict for the nonmoving party. Id. The party moving for summary judgment bears the burden of identifying those portions of the pleadings, discovery and affidavits that demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). On an issue for which the opposing party will have the burden of proof at trial, the moving party need only point out “that there is an absence of evidence to support the non-moving party’s case.” Id. Once the moving party meets its initial burden, the nonmoving party must go beyond the pleadings and, by its own affidavits or discovery, “set forth specific facts showing that there is a genuine issue for trial.” Fed.R.Civ.P. 56(e). Mere allegations or denials do not defeat a moving party’s allegations. Id.; Gasaway v. Northwestern Mut. Life Ins. Co., 26 F.3d 957, 960 (9th Cir.1994). The court may not make credibility determinations, and inferences to be drawn from the facts must be viewed in the light most favorable to the party opposing the motion. Masson v. New Yorker Magazine, 501 U.S. 496, 520, 111 S.Ct. 2419, 115 L.Ed.2d 447 (1991); Anderson, 477 U.S. at 249, 106 S.Ct. 2505. The moving party may “move with or without supporting affidavits for a summary judgment in the party’s favor upon all [claims] or any part thereof.” Fed.R.Civ.P. 56(a). “Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein.” Fed.R.Civ.P. 56(e). DISCUSSION I. Motion for Class Certification Plaintiffs seek certification of a nationwide class for claims arising under the" }, { "docid": "8181631", "title": "", "text": "R. Civ.P. 56(a). “In other words, the record must reveal that no reasonable jury could find for the nonmoving party.” Keri v. Bd. of Trs. of Purdue Univ., 458 F.3d 620, 627 (7th Cir.2006) (quoting Dempsey v. Atchison, Topeka, & Santa Fe Ry. Co., 16 F.3d 832, 836 (7th Cir.1994)). Rule 56 further requires the entry of summary judgment, after adequate time for discovery, 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, 91 L.Ed.2d 265 (1986). A party seeking summary judgment bears the initial responsibility of informing a court of the basis for its motion and identifying those portions of the record which it believes demonstrate the absence of a genuine issue of material fact. Id. at 323, 106 S.Ct. 2548. The moving party may discharge its initial responsibility by simply “ ‘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. 2548. When the nonmoving party has the burden of proof at trial, the moving party is not required to support its motion with affidavits or other similar materials negating the opponent’s claim. Id. at 323, 106 S.Ct. 2548. Once a properly supported motion for summary judgment is made, the nonmoving party cannot resist the motion and withstand summary judgment by merely resting on its pleadings. Keri, 458 F.3d at 628. Instead, it must come forward with specific facts showing that there is a genu ine issue for trial; raising some metaphysical doubt as to the material facts is not enough. Matsushita Elec. Indus. Co. Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586-87, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). Conclusory allegations, if not supported by the record, will not preclude summary judgment. Keri, 458 F.3d at 628 (citing Haywood v. N. Am. Van Lines, Inc., 121 F.3d 1066, 1071 (7th Cir.1997))." }, { "docid": "18274447", "title": "", "text": "asks the court to hold PALCO liable for violations of the CWA. LEGAL STANDARD I. Summary Judgment Summary judgment is proper when the pleadings, discovery, and affidavits show that there is “no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c). Material facts are those which may affect the outcome of the proceedings. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A dispute as to a material fact is genuine if there is sufficient evidence for a reasonable jury to return a verdict for the nonmoving party. Id. The party moving for summary judgment bears the burden of identifying those portions of the pleadings, discovery, and affidavits that demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). On an issue for which the opposing party will have the burden of proof at trial, the moving party need only point out “that there is an absence of evidence to support the non-moving party’s case.” Id. Once the moving party meets its initial burden, the nonmoving party must go beyond the pleadings and, by its own affidavits or discovery, “set forth specific facts showing that there is a genuine issue for trial.” Fed.R.Civ.P. 56(e). Mere allegations or denials do not defeat a moving party’s allegations. Id.; see also Gasaway v. Northwestern Mut. Life Ins. Co., 26 F.3d 957, 960 (9th Cir.1994). The court may not make credibility determinations, Anderson, 477 U.S. at 249, 106 S.Ct. 2505, and inferences drawn from the facts must be viewed in the light most favorable to the party opposing the motion. Masson v. New Yorker Magazine, 501 U.S. 496, 520, 111 S.Ct. 2419, 115 L.Ed.2d 447 (1991). II. Standing An Article III court cannot entertain the claims of a litigant unless that party has demonstrated the threshold jurisdictional issue of whether it has constitutional and prudential standing to sue. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 112" }, { "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": "2437932", "title": "", "text": "— that there is an absence of evidence to support the nonmoving party’s case.” 477 U.S. at 325, 106 S.Ct. at 2554 (emphasis added); Bacchus Indus., Inc. v. Arvin Indus., Inc., 939 F.2d 887, 891 (10th Cir.1991). “[W]e find no express or implied requirement in Rule 56,” the Court explained, “that the moving party support its motion with affidavits or other similar materials negating the opponent’s claim.” 477 U.S. at 323, 106 S.Ct. at 2553 (emphasis in original). Once the moving party has met its initial burden, “the burden shifts back to the non-moving party to show that there is a genuine issue of material fact. Bacchus, 939 F.2d at 891. To discharge its burden, the nonmoving party must “go beyond the pleadings and by her own affidavits, or by the ‘depositions, answers to interrogatories, and admissions on file,’ designate ‘specific facts showing that there is a genuine issue for trial.’ ” Celotex, 477 U.S. at 324, 106 S.Ct. at 2553 (quoting Fed.R.Civ.P. 56(e)).” Jensen v. Kimble, 1 F.3d at 1077. As the Court explained in Celotex: In our view, the plain language of Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party’s case, and on which that party will bear the burden of proof at trial. 477 U.S. at 322, 106 S.Ct. at 2552. Under Utah law, “[t]he interpretation of an unambiguous contract is a question of law to be determined by the court and may be decided on summary judgment. As a general rule, “The construction of an insurance policy is a matter of law.” Grimes v. Swaim, 971 F.2d 622, 623 (10th Cir.1992). If the policy language is clear and unambiguous, the court must construe it according to its plain and ordinary meaning.” Utah Power & Light Co. v. Federal Ins. Co., 983 F.2d 1549, 1553 (10th Cir.1993) (citations omitted). Treated as a matter of law, the construction of an insurance contract can be resolved by the Court in" }, { "docid": "112331", "title": "", "text": "Rules 23(a) and 23(b) have been met. See Zinser v. Accufix Research Inst., Inc., 253 F.3d 1180, 1188 (9th Cir. 2001), amended by 273 F.3d 1266 (9th Cir.2001); Hanon v. Dataproducts Corp., 976 F.2d 497, 508 (9th Cir.1992). However, in adjudicating a motion for class certification, the court accepts the allegations in the complaint as true so long as those allegations are sufficiently specific to permit an informed assessment as to whether the requirements of Rule 23 have been satisfied. See Blackie v. Barrack, 524 F.2d 891, 901 n. 17 (9th Cir.1975), cert. denied, 429 U.S. 816, 97 S.Ct. 57, 50 L.Ed.2d 75 (1976). The merits of the class members’ substantive claims are generally irrelevant to this inquiry. Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 177-78, 94 S.Ct. 2140, 40 L.Ed.2d 732 (1974); Moore v. Hughes Helicopters, Inc., 708 F.2d 475, 480 (9th Cir.1983). II. Motion for Summary Judgment Summary judgment is proper when the pleadings, discovery and affidavits show that there is “no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c). Material facts are those which may affect the outcome of the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A dispute as to a material fact is genuine if there is sufficient evidence for a reasonable jury to return a verdict for the nonmoving party. Id. The party moving for summary judgment bears the burden of identifying those portions of the pleadings, discovery and affidavits that demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). On an issue for which the opposing party will have the burden of proof at trial, the moving party need only point out “that there is an absence of evidence to support the non-moving party’s case.” Id. Once the moving party meets its initial burden, the nonmoving party must go beyond the pleadings and, by its own affidavits or discovery, “set forth" }, { "docid": "6781982", "title": "", "text": "The moving 'party bears the initial burden of demonstrating the absence of a genuine issue of fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). If the moving party fails to meet this burden, “the nonmov-ing party has no obligation to produce anything, even if the nonmoving party would have the ultimate burden of persuasion at trial.” Nissan Fire & Marine Ins. Co., Ltd. v. Fritz Cos., Inc., 210 F.3d 1099, 1102-03 (9th Cir.2000). However, if the nonmoving party has the burden of proof at trial, the moving party must only show “that there is an absence of evidence to support the nonmoving party’s case.” Celotex Corp., 477 U.S. at 325, 106 S.Ct. 2548. Once the moving party has met its burden of proof, the nonmoving party must produce evidence on which a reasonable trier of fact could find in its favor viewing the record as a whole in light of the evi-dentiary burden the law places on that party. See Triton Energy Corp. v. Square D Co.,. 68 F.3d 1216, 1221 (9th Cir.1995). The nonmoving party cannot simply rest on its allegations without any significant probative evidence tending to support the complaint. See Nissan Fire & Marine Ins. Co. v. Fritz Cos., 210 F.3d 1099, 1107 (9th Cir.2000). Instead, the nonmoving party, through affidavits or other admissible evidence, “must set forth specific facts showing that there is a genuine issue for trial.” Fed.R. Civ.P 56(e). [T]he plain language of Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to the 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., 477 U.S. at 322-23, 106 S.Ct. 2548. Evidence submitted in support of, or" } ]

[ { "docid": "22547975", "title": "", "text": "such hy\"courts ofj ustiae, who leave it to be enforced where this can be done in its real character, viz., that of a penalty” [Italics not in original.] See, also, Quinn v. United States, 99 U. S. 30; Clark v. Barnard, 108 U. S. 436, 454; Watts v. Camors, 115 U. S. 353, 360; Bignall v. Gould, 119 U. S. 495. The last .cited case illustrates the character of disproportion apparent on the face of a contract which has influelicecl a court when endeavoring to ascertain tbe meaning of parties to a contract in a stipulation for the payment of a designated sum.for the breach of a condition. There the penal sum was $10,000, several breaches of the conditions of the bond might be committed,- to each of which the stipulated sum would be applicable, and one such breach might be the failure to obtain a release of a claim of but ten dollars. The courts in England, as already intimated, consistently maintain the right of individuals, when contracting with each other, to estimate the value of property or otherwise, determine the quantum of damages for a breach of an agreement, ¿where the damage is of an uncertain nature. Irving v. Manning, (1841) 1 H. L. Cas. 287, 307, 308; Ranger v. Great Western Ry. Co., (1854) 5 Ib. 72, 94, 104, 118; Dimech v. Corlett, (1858) 12 Moore’s P. C. 199, 229; Lord Elphinstone v. Monkland Iron & Coal Co., (1886) App. Cas. 332, 345, 346; Price v. Green, (1847) 16 M. & W. 346, 354. ¥e content ourselves with a few brief excerpts from some of the decisions just referred to. In Ranger v. Great Western Railway Co., in the course of his opinion Lord Cranworth said (p.94): “ There is no. doubt, that where the doing of any particular-act is secured by a penalty, a court of equity is, in general, anxious to treat the penalty as being merely a mode of securing the due performance of the act contracted to be done, and not as a sum of money really intended to be paid. On the" } ]

[ { "docid": "754968", "title": "", "text": "strictly to deter physicians from breaching their contracts. A liquidated damage provision is “a sum fixed as an estimate made by the parties at the time when the contract is entered into, of the extent of injury which a breach will cause.” Williston, Contracts § 776; see also Pacific Hardware & Steel Co. v. United States, 48 Ct.Cl. 399, 406 (1913). At common law, contractual provisions calling for damages without regard to the extent or character of a subsequent breach were regarded as penalties and consequently unenforceable. Van Buren v. Digges, 11 How. (52 U.S.) 460, 461, 476, 13 L.Ed. 771 (1850); Sun Printing & Publishing Assoc. v. Moore, 183 U.S. 642, 22 S.Ct. 240, 46 L.Ed. 366 (1902). The modern trend is to permit the parties to a contract to determine damages in the event of breach without judicial interference unless such a provision is unreasonable or unconscionable. United States v. Bethlehem Steel Co., 205 U.S. 105, 27 S.Ct. 450, 51 L.Ed. 731 (1907); Jennie-O Foods, Inc. v. United States, 217 Ct.Cl. 314, 580 F.2d 400, 412 (1978). Whether a liquidated damage provision is in fact unconscionable or an unenforceable penalty provision is a matter of law to be determined by the Court in light of all the circumstances. See In re United Merchants & Mfrs., Inc., 674 F.2d 134, 141 (2d Cir.1982) (New York law); In re Construction Diversification, Inc., 36 B.R. 434, 436 (1983) (applying Michigan law). The general rule for determining if a liquidated damages provision is valid and enforceable was aptly stated by the United States Supreme Court in Priebe & Sons, Inc. v. United States, 332 U.S. 407, 68 S.Ct. 123, 92 L.Ed. 32 (1947): * * * When they [liquidated damages provisions] are fair and reasonable attempts to fix just compensation for anticipated loss caused by breach of contract, they are enforced. * * * They serve a particularly useful function when damages are uncertain in nature or amount or are unmeasurable, as is the case in many government contracts. * * * And the fact that the damages suffered are shown to" }, { "docid": "4015411", "title": "", "text": "state law. In Priebe & Sons v. United States, 332 U.S. 407, 411, 68 S.Ct. 123, 125, 92 L.Ed. 32, the Supreme Court made this statement: “It is customary, where Congress has not adopted a different standard, to apply to the construction of government contracts the principles of general contract law. United States v. Standard Rice Co., 323 U.S. 106, 111, 65 S.Ct. 145, 147, 89 L.Ed. 104, and cases cited. That has been done in other cases where the Court has considered the enforceability of ‘liquidated damages’ provisions in government contracts. United States v. Bethlehem Steel Co., 205 U.S. 105, 120-121, 27 S.Ct. 450, 455, 456, 51 L.Ed. 731; Wise v. United States, 249 U.S. 361, 365-366, 39 S.Ct. 303, 304, 63 L.Ed. 647. We adhere to those decisions and follow the same course here.” There are also important considerations of policy that make it preferable to apply federal common law rather than local law to the interpretation of Government contracts. The contract involved here pertains to the construction of a large dam. A project of such magnitude ordinarily can be undertaken only by the Federal Government) and the Government is engaged in such monumental construction in various parts of the country. Obviously it is highly desirable that the contracts which are necessarily involved in such projects receive a uniform interpretation in the courts. Therefore this Court will apply general principles of contract law to the questions that arise in connection with the contract before it. The contract under consideration here is quite complex. At least two of its pertinent provisions were changed by agreement of the parties while the work was in progress. The meaning of these provisions is in dispute, and the facts surrounding the framing of the disputed provisions will be necessary to a proper interpretation of the contract. The Government’s general contractors contend that the contract in question cannot be construed to indemnify the United States against the consequences of its own negligence in the absence of an express provision to that effect, and California authorities are cited in support of this contention; but this" }, { "docid": "22097811", "title": "", "text": "no doubt of the validity of the provision for “liquidated damages” when applied under those circumstances. United States v. Bethlehem Steel Co., supra; Wise v. United States, supra. And see Maryland Dredging Co. v. United States, 241 U. S. 184; Robinson v. United States, 261 U. S. 486. But under this procurement program delays of the contractors which did not interfere with prompt deliveries plainly would not occasion damage. That was as certain when the contract was made as it later proved to be. Yet that was the only situation to which the provision in question could ever apply. Under these circumstances this provision for “liquidated damages” could not possibly be a reasonable forecast of just compensation for the damage caused by a breach of contract. It might, as respondent suggests, have an in terrorem effect of encouraging prompt preparation for delivery. But the argument is a tacit admission that the provision was included not to make a fair estimate of damages to be suffered but to serve only as an added spur to performance. It is well-settled contract law that courts do not give their imprimatur to such arrangements. See Kothe v. Taylor Trust, supra; Restatement, Contracts § 339. All provisions for damages are, of course, deterrents of default. But an exaction of punishment for a breach which could produce no possible damage has long been deemed oppressive and unjust. See Salmond & Williams on Contracts (2d ed. 1945) § 202. It is said, however, that a different rule should obtain here because of the broad procurement powers involved under the Lend-Lease Act. We are pointed, however, to no provision by which the Congress authorized the imposition of penalties as sanctions to that program; nor do we find any. We cannot infer such a power. The power to purchase on appropriate terms and conditions is, of course, inferred from every power to purchase. But if that is the source of congressional authority to impose penalties, then any procurement officer, in war or in peace, could impose them. That is contrary to the premise underlying all our decisions on this" }, { "docid": "19231834", "title": "", "text": "admissions. Id. The court must view the inferences to be drawn from the underlying facts in the light most favorable to the nonmoving party. Matsushita Elec. Ind. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). Entry of summary judgment is mandated, “after adequate time for discovery,” against a party who fails to establish “an element essential to that party’s case, and on which that party will bear the burden of proof at trial.” Celotex Corp., 477 U.S. at 322, 106 S.Ct. 2548. B. Enforceability of Liquidated Damages Clauses Liquidated damages are used “to allocate the consequences of a breach before it occurs,” Jennie-O Foods, Inc. v. United States, 580 F.2d 400, 412 (Ct.Cl.1978) (per curiam), which “save[s] the time and expense of litigating the issue of damages,” DJ Mfg. Corp. v. United States, 86 F.3d 1130, 1133 (Fed.Cir.1996). Liquidated damages “serve a particularly useful function when damages are uncertain in nature or amount or are unmeasurable, as is the case in many government contracts.” Priebe & Sons, Inc. v. United States, 332 U.S. 407, 411, 68 S.Ct. 123, 92 L.Ed. 32 (1947). Thus, “[w]here parties have by their contract agreed upon a liquidated damages clause as a reasonable forecast of just compensation for breach of contract and damages are difficult to estimate accurately, such provision should be enforced.” Jennie-O Foods, Inc., 580 F.2d at 413-14; see also FAR 11.501 (noting that use of a liquidated damages clause is proper if damages “would be difficult or impossible to estimate accurately or prove” and that the “rate must be a reasonable forecast” of the anticipated damages). On the other hand, courts will not enforce a liquidated damages clause when the amount of liquidated damages is “plainly without reasonable relation to any probable damage which may follow a breach,” Kothe v. R.C. Taylor Trust, 280 U.S. 224, 226, 50 S.Ct. 142, 74 L.Ed. 382 (1930), or is “so extravagant, or so disproportionate to the amount of property loss, as to show that compensation was not the object aimed at or as to imply fraud, mistake," }, { "docid": "15972334", "title": "", "text": "L.Ed. 32 (1947); United States v. Bethlehem Steel Co., 205 U.S. 105, 27 S.Ct. 450, 51 L.Ed. 731 (1907). And generally, it is permissible to allow the enforcement of liquidated damages provisions where the actual damages are uncertain in amount but demonstrable, as is often the case with government contracts. As the Supreme Court wrote in Priebe, supra, at 411-412, 68 S.Ct. at 125-126: Today the law does not look with disfavor upon “liquidated damages” provisions in contracts. When they are fair, and reasonable attempts to fix just compensation for anticipated loss caused by breach of contract, they are enforced— They serve a particularly useful function when damages are uncertain in nature or amount or are unmeasurable, as is the case in many government contracts.... And the fact that the damages suffered are shown to be less than the damages contracted for is not fatal. These provisions are to be judged as of the time of making the contract. (Citations omitted). In addition, various multiple damage provisions have been upheld against the claim that they are punitive. Some of these are outlined in the Hayes case at page 1186. I conclude that the damage provision contained in the contract and the statute is a valid and enforceable provision, because I simply am unable to find that it is disproportionate to the injury inflicted on the United States by Redovan’s failure to perform. First and most obviously, the government has lost and must recover the money provided to Redovan for his education, costs and living expenses. That aspect of damage is simple to ascertain. However, the other costs imposed on the United States are decidedly less easy to measure. By defaulting on his service obligation, Redovan has deprived the United States of the services of a physician in a critically underserved location. As Judge Thompson observed in Bills at 831, “One cannot readily estimate the damages occasioned by the ... loss of a doctor’s services in an area determined to be medically underserved.” “A physician ... is not a fungible handyman.” Swanson at p. 1243. Redovan’s selfish conduct results in additional" }, { "docid": "754969", "title": "", "text": "F.2d 400, 412 (1978). Whether a liquidated damage provision is in fact unconscionable or an unenforceable penalty provision is a matter of law to be determined by the Court in light of all the circumstances. See In re United Merchants & Mfrs., Inc., 674 F.2d 134, 141 (2d Cir.1982) (New York law); In re Construction Diversification, Inc., 36 B.R. 434, 436 (1983) (applying Michigan law). The general rule for determining if a liquidated damages provision is valid and enforceable was aptly stated by the United States Supreme Court in Priebe & Sons, Inc. v. United States, 332 U.S. 407, 68 S.Ct. 123, 92 L.Ed. 32 (1947): * * * When they [liquidated damages provisions] are fair and reasonable attempts to fix just compensation for anticipated loss caused by breach of contract, they are enforced. * * * They serve a particularly useful function when damages are uncertain in nature or amount or are unmeasurable, as is the case in many government contracts. * * * And the fact that the damages suffered are shown to be less than the damages contracted for is not fatal. These provisions are to be judged as of the time of making the contract. 332 U.S. at 411-12, 68 S.Ct. at 125-26; see also Higgs v. United States, 546 F.2d 373, 377, 212 Ct.Cl. 146 (1976); Steffen v. United States, 213 F.2d 266, 270 (6th Cir.1954); United States v. Bethlehem Steel Co., 205 U.S. at 120-21, 27 S.Ct. at 455-56. In the instant case, the damages for breach of the scholarship contract under the NHSC scholarship program are clearly outlined by statute. Where a scholarship recipient fails to complete his medical training, the amount of the damages required to be repaid to the government is simply the amounts which have been paid to such person under the scholarship program. 42 U.S.C. § 254o (a). However, where a recipient completes his or her medical training and fails to commence his or her service obligation under the contract, the damages are set according to an algebraic formula at approximately three times the principal plus the interest. 42" }, { "docid": "6004180", "title": "", "text": "him in accordance with section 338B or a written agreement under section 338C. Any amount of such damages which the United States is entitled to recover under this subsection shall, within the one year period beginning on the date of the breach of the written contract, be paid to the United States. 42 USC § 254o(b)(l). This provision appears in the NHSC scholarship contract and is referenced in the NHSC Scholarship Program regulations, 42 C.F.R. § 62.10(c). Ordinarily, when construing liquidated damages provisions in government contracts, the courts turn to general principles of contract law. See United States v. Bethlehem Steel Co., 205 U.S. 105, 27 S.Ct. 450, 51 L.Ed. 731 (1907). Generally, it has been the modern trend to allow liquidated damages clauses in contracts. See Wise v. United States, 249 U.S. 361, 365, 39 S.Ct. 303, 304, 63 L.Ed. 647 (1919). Today the law does not look with disfavor upon “liquidated damages” provisions in contracts. When they are fair and reasonable attempts to fix just compensation for anticipated loss caused by breach of contract, they are enforced____ They serve a particularly useful function when damages are uncertain in nature or amount or are unmeasurable, as is the case in many government contracts____ And the fact that the damages suffered are shown to be less than the damages contracted for is not fatal. These provisions are to be judged as of the time of making the contract. (Citations omitted.) Priebe & Sons, Inc. v. United States, 332 U.S. 407, 411-12, 68 S.Ct. 123, 125-26, 92 L.Ed. 32 (1947). The setting of civil damages as multiples of actual damages is not uncommon and has long been upheld by the courts. See, e.g., United States ex rel. Marcus v. Hess, 317 U.S. 537, 63 S.Ct. 379, 87 L.Ed. 443, reh’g denied, 318 U.S. 799, 63 S.Ct. 756, 87 L.Ed. 1163 (1943) (upholding the double damages provisions of the False Claims Act, 31 U.S.C. § 3729, against the charge that it was punitive in nature); Lehrman v. Gulf Oil Corp., 464 F.2d 26 (5th Cir.), cert. denied, 409 U.S. 1077, 93 S.Ct." }, { "docid": "19044985", "title": "", "text": "United States, 86 F.3d 1130, 1133 (Fed.Cir.1996). Liquidated damages “serve a particularly useful function when damages are uncertain in nature or amount or are unmeasurable, as is the case in many government contracts.” Priebe & Sons, Inc. v. United States, 332 U.S. 407, 411, 68 S.Ct. 123, 92 L.Ed. 32 (1947). Thus, “[w]here parties have by their contract agreed upon a liquidated damages clause as a reasonable forecast of just compensation for breach of contract and damages are difficult to estimate accurately, such provision should be enforced.” Jennie-O Foods, Inc., 580 F.2d at 413-14; see also FAR 11.501 (noting that use of a liquidated damages clause is proper if damages “would be difficult or impossible to estimate accurately or prove” and that the “rate must be a reasonable forecast” of the anticipated damages). On the other hand, courts will not enforce a liquidated damages clause when the amount of liquidated damages is “plainly without reasonable relation to any probable damage which may follow a breach,” Kothe v. R.C. Taylor Trust, 280 U.S. 224, 226, 50 S.Ct. 142, 74 L.Ed. 382 (1930), or is “so extravagant, or so disproportionate to the amount of property loss, as to show that compensation was not the object aimed at or as to imply fraud, mistake, circumvention, or oppression,” Wise v. United States, 249 U.S. 361, 365, 39 S.Ct. 303, 63 L.Ed. 647 (1919). In these circumstances, liquidated damages amount to a penalty. Priebe & Sons, Inc., 332 U.S. at 413, 68 S.Ct. 123; United States v. Bethlehem, Steel Co., 205 U.S. 105, 118-21, 27 S.Ct. 450, 51 L.Ed. 731 (1907). When presented with a challenge to a liquidated damages clause, a court must judge the clause “as of the time of making the contract” and without regard to the amount of damages, if any, actually incurred by the nonbreaching party. Priebe & Sons, Inc., 332 U.S. at 412, 68 S.Ct. 123; accord Bethlehem Steel Co., 205 U.S. at 119, 27 S.Ct. 450 (noting that courts will enforce liquidated damages clauses “-without proof of the damages actually sustained”); Steve Kirchdorfer, Inc. v. United States, 229" }, { "docid": "22097809", "title": "", "text": "reasonable attempts to fix just compensation for anticipated loss caused by breach of contract, they are enforced. Wise v. United States, supra, p. 365; Sun Printing & Pub. Assn. v. Moore, 183 U. S. 642, 672-674; Restatement, Contracts § 339; Dunlop Pneumatic Tyre Co. v. New Garage & M. Co., [1915] A. C. 79. And see Kothe v. Taylor Trust, 280 U. S. 224, 226. They serve a particularly useful function when damages are uncertain in nature or amount or are unmeasurable, as is the case in many government contracts. United States v. Bethlehem Steel Co., supra, p. 121; Clydebank Engineering & Shipbuilding Co. v. Castaneda, [1905] A. C. 6, 11-13, 20; United States v. Walkof, 144 F. 2d 75, 77. And the fact that the damages suffered are shown to be less than the damages contracted for is not fatal. These provisions are to be judged as of the time of making the contract. United States v. Bethlehem Steel Co., supra, p. 121. Judged by these standards, the provision in question may not be sustained as an agreement for “liquidated damages.” It does not cover delays in deliveries. It can apply only where there was prompt performance when delivery was requested but where prompt delivery could not have been made, due to the absence of the certificates, had the request come on the first day when delivery could have been asked. A different situation might be presented had the contract provided for notice to the Government when the certificates were ready. Then we might possibly infer that promptness in obtaining them served an important function in the preparation of timetables for overseas shipments. But the contract contains no such provision; and it is shown that FSCC had no knowledge that the certificates were not ready on May 18 until long after deliveries had been made. So, it is apparent that the certificates were only an essential of proper delivery under this contract. It likewise is apparent that the only thing which could possibly injure the government would be failure to get prompt performance when delivery was due. We have" }, { "docid": "4015410", "title": "", "text": "are entitled to indemnity.” Since the pleadings here contemplate the situation that would arise if employees of the United States were found to be guilty of negligence which contributed to the plaintiffs’ loss and since California law does not permit indemnity in favor of one whose negligence contributes to the loss, the portions of the Government’s claims which are based on an alleged right to common law indemnity will be dismissed. Considering the Government’s claims to contractual indemnity, in United States v. State of Arizona, supra, the Court of Appeals expressly reserved the question of whether local law or federal common law is applicable to such a claim. The court there said, 214 F.2d at page 392 note 2: “Upon the state of the record, this court cannot consider any contractual indemnity right, as none was pleaded in the third party complaint filed by the United States.” But there is considerable authority for the proposition that Government contracts are to be construed according to general principles of contract law, rather than interpreting them according to state law. In Priebe & Sons v. United States, 332 U.S. 407, 411, 68 S.Ct. 123, 125, 92 L.Ed. 32, the Supreme Court made this statement: “It is customary, where Congress has not adopted a different standard, to apply to the construction of government contracts the principles of general contract law. United States v. Standard Rice Co., 323 U.S. 106, 111, 65 S.Ct. 145, 147, 89 L.Ed. 104, and cases cited. That has been done in other cases where the Court has considered the enforceability of ‘liquidated damages’ provisions in government contracts. United States v. Bethlehem Steel Co., 205 U.S. 105, 120-121, 27 S.Ct. 450, 455, 456, 51 L.Ed. 731; Wise v. United States, 249 U.S. 361, 365-366, 39 S.Ct. 303, 304, 63 L.Ed. 647. We adhere to those decisions and follow the same course here.” There are also important considerations of policy that make it preferable to apply federal common law rather than local law to the interpretation of Government contracts. The contract involved here pertains to the construction of a large dam. A" }, { "docid": "22097808", "title": "", "text": "was important here because of war conditions and the necessity of having goods ready for loading whenever shipping space was available; that delay in deliveries would cause unmeasurable damage; and that even though no damage were apparent in a particular case, the “liquidated damages” provision should be enforced as a deterrent of tardy deliveries in the whole class of contracts relating to this procurement program. It is customary, where Congress has not adopted a different standard, to apply to the construction of government contracts the principles of general contract law. United States v. Standard Rice Co., 323 U. S. 106, 111, and cases cited. That has been done in other cases where the Court has considered the enforceability of “liquidated damages” provisions in government contracts. United States v. Bethlehem Steel Co., 205 U. S. 105, 120-121; Wise v. United States, 249 U. S. 361, 365-366. We adhere to those decisions and follow the same course here. Today the law does not look with disfavor upon “liquidated damages” provisions in contracts. When they are fair and reasonable attempts to fix just compensation for anticipated loss caused by breach of contract, they are enforced. Wise v. United States, supra, p. 365; Sun Printing & Pub. Assn. v. Moore, 183 U. S. 642, 672-674; Restatement, Contracts § 339; Dunlop Pneumatic Tyre Co. v. New Garage & M. Co., [1915] A. C. 79. And see Kothe v. Taylor Trust, 280 U. S. 224, 226. They serve a particularly useful function when damages are uncertain in nature or amount or are unmeasurable, as is the case in many government contracts. United States v. Bethlehem Steel Co., supra, p. 121; Clydebank Engineering & Shipbuilding Co. v. Castaneda, [1905] A. C. 6, 11-13, 20; United States v. Walkof, 144 F. 2d 75, 77. And the fact that the damages suffered are shown to be less than the damages contracted for is not fatal. These provisions are to be judged as of the time of making the contract. United States v. Bethlehem Steel Co., supra, p. 121. Judged by these standards, the provision in question may not be" }, { "docid": "22097807", "title": "", "text": "May 18, the precise date to be selected” by the FSCC. The contract was drawn, however, to make the “liquidated damages” provisions include so-called defaults of petitioner which antedated the time when delivery was due but which in no way interfered with or caused delay in that performance. As noted, “liquidated damages” became payable on “failure to have specified quantities of dried egg products inspected and ready for delivery by the date specified in the offer,” viz. by May 18, 1942. The Court of Claims held this provision enforceable even though petitioner had made prompt delivery of the eggs, because it felt that the provision enabled respondent to carry on its dried-egg program “with assurance that it could count on the dried-egg products being ready on the specified date.” That position is amplified by respond ent. The argument in short is that liability to pay “liquidated damages” for failure to have goods ready for delivery even prior to the time when delivery is due gives assurance against tardy deliveries; that a prompt timetable of shipments was important here because of war conditions and the necessity of having goods ready for loading whenever shipping space was available; that delay in deliveries would cause unmeasurable damage; and that even though no damage were apparent in a particular case, the “liquidated damages” provision should be enforced as a deterrent of tardy deliveries in the whole class of contracts relating to this procurement program. It is customary, where Congress has not adopted a different standard, to apply to the construction of government contracts the principles of general contract law. United States v. Standard Rice Co., 323 U. S. 106, 111, and cases cited. That has been done in other cases where the Court has considered the enforceability of “liquidated damages” provisions in government contracts. United States v. Bethlehem Steel Co., 205 U. S. 105, 120-121; Wise v. United States, 249 U. S. 361, 365-366. We adhere to those decisions and follow the same course here. Today the law does not look with disfavor upon “liquidated damages” provisions in contracts. When they are fair and" }, { "docid": "19231835", "title": "", "text": "Inc. v. United States, 332 U.S. 407, 411, 68 S.Ct. 123, 92 L.Ed. 32 (1947). Thus, “[w]here parties have by their contract agreed upon a liquidated damages clause as a reasonable forecast of just compensation for breach of contract and damages are difficult to estimate accurately, such provision should be enforced.” Jennie-O Foods, Inc., 580 F.2d at 413-14; see also FAR 11.501 (noting that use of a liquidated damages clause is proper if damages “would be difficult or impossible to estimate accurately or prove” and that the “rate must be a reasonable forecast” of the anticipated damages). On the other hand, courts will not enforce a liquidated damages clause when the amount of liquidated damages is “plainly without reasonable relation to any probable damage which may follow a breach,” Kothe v. R.C. Taylor Trust, 280 U.S. 224, 226, 50 S.Ct. 142, 74 L.Ed. 382 (1930), or is “so extravagant, or so disproportionate to the amount of property loss, as to show that compensation was not the object aimed at or as to imply fraud, mistake, circumvention, or oppression,” Wise v. United States, 249 U.S. 361, 365, 39 S.Ct. 303, 63 L.Ed. 647 (1919). In these circumstances, liquidated damages amount to a penalty. Priebe & Sons, Inc., 332 U.S. at 413, 68 S.Ct. 123; United States v. Bethlehem Steel Co., 205 U.S. 105, 118-21, 27 S.Ct. 450, 51 L.Ed. 731 (1907). When presented with a challenge to a liquidated damages clause, a court must judge the clause “as of the time of making the contract” and without regard to the amount of damages, if any, actually incurred by the nonbreaching party. Priebe & Sons, Inc., 332 U.S. at 412, 68 S.Ct. 123; accord Bethlehem Steel Co., 205 U.S. at 119, 27 S.Ct. 450 (noting that courts will enforce liquidated damages clauses “without proof of the dam ages actually sustained”); Steve Kirchdorfer, Inc. v. United States, 229 Ct.Cl. 560, 565-67 (1981) (upholding an award of liquidated damages although no actual damages were sustained); Young Assocs., Inc. v. United States, 471 F.2d 618, 622 (Ct.Cl.1973) (“It is enough if the amount stipulated is" }, { "docid": "23694530", "title": "", "text": "“[i]t ... is apparent that the only thing which could possibly injure the government would be failure to get prompt performance when delivery was due. We have no doubt of the validity of the provision for ‘liquidated damages’ when applied under those circumstances.” Priebe & Sons, 332 U.S. at 412, 68 S.Ct. at 126. Also, [tjoday the law does not look with disfavor upon ‘liquidated damages’ provisions in contracts. When they are fair and reasonable attempts to fix just compensation for anticipated loss caused by breach of contract, they are enforced. They serve a particularly useful function when damages are uncertain in nature or amount or are unmeasurable, as is the case in many government contracts. And the fact that the damages suffered are shown to be less than the damages contracted for is not fatal. These provisions are to be judged as of the time of making the contract. Id. at 411-12, 68 S.Ct. at 126 (citations omitted). In Rex Trailer Co. v. United States, 350 U.S. 148, 151-53, 76 S.Ct. 219, 221-22, 100 L.Ed. 149 (1956), the court concluded that [l]iquidated-damage provisions, when reasonable, are not to be regarded as penal-ties____ As this Court recognized in [Priebe ], liquidated damages “serve a particularly useful function when damages are uncertain in nature or amount or are unmeasurable, as is the case in many government contracts____” [T]he fact that no damages are shown is not fatal. Le Roy Dyal, in addressing a number of aspects of the liquidated damage issue, held that “[i]f a provision for liquidated damages is upheld the fact that actual damage did or did not occur or was not proved to have occurred does not prevent the recovery of the stipulated sum.” Le Roy Dyal, 186 F.2d at 462; accord Rex Trailer, 350 U.S. at 152-53, 76 S.Ct. at 221-22. Where the parties, as here, have by their contract agreed upon a liquidated damage provision as a reasonable forecast of just compensation for breach of contract and damages are difficult to estimate accurately, such provision will be enforced. If in the course of subsequent developments, damages" }, { "docid": "6004179", "title": "", "text": "validity of the scholarship agreement. Defendant contends that a genuine issue of material fact exists as to the validity of the treble damages provision of the statute and scholarship contract. Unfortunately, the court cannot agree. Under the NHSC Scholarship Program, if an individual, for any reason, breaches her written contract by failing to either begin or complete her scholarship service obligation, [T]he United States shall be entitled to recover from the individual an amount determined in accordance with the formula in which ‘A’ is the amount the United States is entitled to recover, ‘0’ is the sum of the amount paid under this sub-part to or on behalf of the individual and the interest on such amount which would be payable if at the time it was paid it was a loan bearing interest at the maximum legal prevailing rate, as determined by the Treasurer of the United States; ‘t’ is the total number of months in the individual’s period of obligated service; and ‘s’ is the number of months of such period served by him in accordance with section 338B or a written agreement under section 338C. Any amount of such damages which the United States is entitled to recover under this subsection shall, within the one year period beginning on the date of the breach of the written contract, be paid to the United States. 42 USC § 254o(b)(l). This provision appears in the NHSC scholarship contract and is referenced in the NHSC Scholarship Program regulations, 42 C.F.R. § 62.10(c). Ordinarily, when construing liquidated damages provisions in government contracts, the courts turn to general principles of contract law. See United States v. Bethlehem Steel Co., 205 U.S. 105, 27 S.Ct. 450, 51 L.Ed. 731 (1907). Generally, it has been the modern trend to allow liquidated damages clauses in contracts. See Wise v. United States, 249 U.S. 361, 365, 39 S.Ct. 303, 304, 63 L.Ed. 647 (1919). Today the law does not look with disfavor upon “liquidated damages” provisions in contracts. When they are fair and reasonable attempts to fix just compensation for anticipated loss caused by breach of" }, { "docid": "20474514", "title": "", "text": "damages “serve a particularly useful function when damages are uncertain in nature or amount or are unmeasurable, as is the case in many government contracts.” Priebe & Sons, Inc. v. United States, 332 U.S. 407, 411, 68 S.Ct. 123, 92 L.Ed. 32 (1947). Thus, “[w]here parties have by their contract agreed upon a liquidated damages clause as a reasonable forecast of just compensation for breach of contract and damages are difficult to estimate accurately, such provision should be enforced.” Jennie-O Foods, Inc., 580 F.2d at 413-14; see also FAR 11.501 (noting that use of a liquidated damages clause is proper if damages “would be difficult or impossible to estimate accurately or prove” and that the “rate must be a reasonable forecast” of the anticipated damages). On the other hand, courts will not enforce a liquidated damages clause when the amount of liquidated damages is “plainly without reasonable relation to any probable damage which may follow a breach,” Kothe v. R.C. Taylor Trust, 280 U.S. 224, 226, 50 S.Ct. 142, 74 L.Ed. 382 (1930), or is “so extravagant, or so disproportionate to the amount of property loss, as to show that compensation was not the object aimed at or as to imply fraud, mistake, circumvention, or oppression,” Wise v. United States, 249 U.S. 361, 365, 39 S.Ct. 303, 63 L.Ed. 647 (1919). In these circumstances, liquidated damages amount to a penalty. Priebe & Sons, Inc., 332 U.S. at 413, 68 S.Ct. 123; United States v. Bethlehem, Steel Co., 205 U.S. 105, 118-21, 27 S.Ct. 450, 51 L.Ed. 731 (1907). When presented with a challenge to a liquidated damages clause, a court must judge the clause “as of the time of making the contract” and without regard to the amount of damages, if any, actually incurred by the nonbreaching party. Priebe & Sons, Inc., 332 U.S. at 412, 68 S.Ct. 123; accord Bethlehem Steel Co., 205 U.S. at 119, 27 S.Ct. 450 (noting that courts will enforce liquidated damages clauses “without proof of the damages actually sustained”); Steve Kirchdorfer, Inc. v. United States, 229 Ct.Cl. 560, 565-67 (1981) (upholding an award of" }, { "docid": "23694528", "title": "", "text": "included in the contract fixing the amount of damages payable upon breach is an enforceable liquidated damages clause. First, the amount so fixed must be a reasonable forecast of just compensation for the harm that is caused by the breach. Second, the harm that is caused by the breach must be one that is incapable or nearly incapable of accurate estimation. See J.D. Streett & Co. v. United States, 256 F.2d 557, 559 (8th Cir.1958) (citations omitted); United States v. Le Roy Dyal Co., 186 F.2d 460, 461 (3d Cir.1950) (quoting Restatement, Contracts § 339); Martin J. Simko, 11 Cl.Ct. at 271-72. If the disputed liquidated damages clause does not satisfy both factors, the court will interpret the contract provision as an unenforceable penalty clause. The court must also determine whether these factors exist at the time the contract was executed rather than when the contract was breached or at some other subsequent time. Le Roy Dyal, 186 F.2d at 462; P & D Contractors, Inc. v. United States, 25 Cl.Ct. 237, 241 (1992) (citing Cegers v. United States, 7 Cl.Ct. 615, 620 (1985)). Courts presently look with candor upon provisions that are deliberately entered into between parties, United States v. Bethlehem Steel Co., 205 U.S. 105, 119, 27 S.Ct. 450, 455, 51 L.Ed. 731 (1907), and, therefore, do not look with disfavor upon liquidated damage stipulations. Priebe & Sons, Inc. v. United States, 332 U.S. 407, 411, 68 S.Ct. 123, 125, 92 L.Ed. 32 (1947). In Bethlehem Steel the court defined the applicable standard for determining whether a liquidated damages provision is proper by asking “what did the parties intend by the language used? When such intention is ascertained it is ordinarily the duty of the court to carry it out.” Bethlehem Steel, 205 U.S. at 119, 27 S.Ct. at 455. Here, plaintiff failed to establish that the intention of the parties was to do anything other than to execute a valid liquidated damages provision. In Priebe & Sons, the court found that the contract contained a provision for liquidated damages for delay in delivery upon demand, and that" }, { "docid": "23523730", "title": "", "text": "1902, c. 1036, § 21, 32 Stat. 310, 326. In construction contracts a provision giving liquidated damages for each day’s delay is an appropriate means of inducing due performance, or of giving compensation, in case of failure to perform; and courts give it effect in accordance with its terms, Sun Printing & Publishing Association v. Moore, 183 U. S. 642, 673, 674; Wise v. United States, 249 U. S. 361; J. E. Hathaway & Co. v. United States, 249 U. S. 460, 464. The fact that the Government’s action caused some of the delay, presents no legal ground for denying it compensation for loss suffered wholly through the fault of the contractor. Since the contractor agreed to pay at a specified rate for each day’s delay not caused by the Government, it was clearly the intention that it should pay for some days’ delay at that rate, even if it were relieved from paying for other days, because of the Government’s action. If it had appeared that the first 61 days’ delay had been due wholly to the contractor’s fault, and the Government had caused the last 60 days’ delay, there could hardly be a contention that the ■ provision for liquidated damages should not apply. Here the fault of the respective parties was not so clearly distributed in time; and it may have been difficult to determine, as a matter of fact, how much of the delay was attributable to each. But the Court of Claims has done so in this case. Its findings are specific and conclusive. Compare United States v. Bethlehem Steel Co., 205 U. S. 105, 121; Carnegie Steel Co. v. United States, 240 U. S. 156, 163, 164. The case is wholly .unlike United States v. United Engineering Co., 234 U. S. 236, upon which claimant relies. The question there was one of construction. The lower court found as a fact that, but for the Government’s action, the work' would have been completed within the contract period; and this Court construed the provision for liquidated damages as not' applicable to such a case. Here the" }, { "docid": "15972333", "title": "", "text": "is entitled to pursue its statutory and contractual remedy. 5. The enforceability of the Statutory and Contract Damage Clause The third contention of the defendant is that the treble damage provision contained in the statute and his agreement with NHSC is void and unenforceable because it is a penalty. The United States takes the position that the clause is a valid stipulation of liquidated damages. All cases addressing the enforceability of this provision of which I am aware have agreed that the clause is indeed enforceable. United States v. Bills, 639 F.Supp. 825 (D.N.J.1986); United States v. Hayes, 633 F.Supp. 1183 (M.D.N.C.1986); United States v. Swanson, 618 F.Supp. 1231 (D.Mich.1985). I have made my own independent assessment of the question in light of the facts before me and the cases reported and conclude that the provision is an enforceable damage provision. In construing liquidated damages provisions in United States contracts, the court must apply principles of general federal contract law. See Priebe & Sons, Inc. v. United States, 332 U.S. 407, 68 S.Ct. 123, 92 L.Ed. 32 (1947); United States v. Bethlehem Steel Co., 205 U.S. 105, 27 S.Ct. 450, 51 L.Ed. 731 (1907). And generally, it is permissible to allow the enforcement of liquidated damages provisions where the actual damages are uncertain in amount but demonstrable, as is often the case with government contracts. As the Supreme Court wrote in Priebe, supra, at 411-412, 68 S.Ct. at 125-126: Today the law does not look with disfavor upon “liquidated damages” provisions in contracts. When they are fair, and reasonable attempts to fix just compensation for anticipated loss caused by breach of contract, they are enforced— They serve a particularly useful function when damages are uncertain in nature or amount or are unmeasurable, as is the case in many government contracts.... And the fact that the damages suffered are shown to be less than the damages contracted for is not fatal. These provisions are to be judged as of the time of making the contract. (Citations omitted). In addition, various multiple damage provisions have been upheld against the claim that they" }, { "docid": "23694529", "title": "", "text": "Cegers v. United States, 7 Cl.Ct. 615, 620 (1985)). Courts presently look with candor upon provisions that are deliberately entered into between parties, United States v. Bethlehem Steel Co., 205 U.S. 105, 119, 27 S.Ct. 450, 455, 51 L.Ed. 731 (1907), and, therefore, do not look with disfavor upon liquidated damage stipulations. Priebe & Sons, Inc. v. United States, 332 U.S. 407, 411, 68 S.Ct. 123, 125, 92 L.Ed. 32 (1947). In Bethlehem Steel the court defined the applicable standard for determining whether a liquidated damages provision is proper by asking “what did the parties intend by the language used? When such intention is ascertained it is ordinarily the duty of the court to carry it out.” Bethlehem Steel, 205 U.S. at 119, 27 S.Ct. at 455. Here, plaintiff failed to establish that the intention of the parties was to do anything other than to execute a valid liquidated damages provision. In Priebe & Sons, the court found that the contract contained a provision for liquidated damages for delay in delivery upon demand, and that “[i]t ... is apparent that the only thing which could possibly injure the government would be failure to get prompt performance when delivery was due. We have no doubt of the validity of the provision for ‘liquidated damages’ when applied under those circumstances.” Priebe & Sons, 332 U.S. at 412, 68 S.Ct. at 126. Also, [tjoday the law does not look with disfavor upon ‘liquidated damages’ provisions in contracts. When they are fair and reasonable attempts to fix just compensation for anticipated loss caused by breach of contract, they are enforced. They serve a particularly useful function when damages are uncertain in nature or amount or are unmeasurable, as is the case in many government contracts. And the fact that the damages suffered are shown to be less than the damages contracted for is not fatal. These provisions are to be judged as of the time of making the contract. Id. at 411-12, 68 S.Ct. at 126 (citations omitted). In Rex Trailer Co. v. United States, 350 U.S. 148, 151-53, 76 S.Ct. 219, 221-22, 100" } ]

[ { "docid": "10771859", "title": "", "text": "MEMORANDUM AND ORDER STANLEY, Senior Judge. This is a class action for declaratory and injunctive relief brought by the plaintiffs individually and on behalf of all past, present and future inmates of the United States Penitentiary, Leaven worth, Kansas, who have been, are now, or will be, “subjected to confinement in the segregation unit at the penitentiary-in connection with any of the prohibited acts in a federal penal or correctional institution which act also violates federal statutes.” (Emphasis supplied). Jurisdiction of this court, invoked under the provisions of 28 U.S.C.A. § 1331, is claimed on the ground that the matter in controversy exceeds $10,000 and arises under the Fifth Amendment to the Constitution of the United States. The individual plaintiffs on July 12, 1972 filed an affidavit meeting the technical requirements of 28 U.S.C.A. § 1915 and were permitted to proceed in forma pauperis. The poverty affidavit, signed and sworn to by each plaintiff, includes the statement that “they are without assets, and have no income.” The defendants would have the court dismiss this case because the allegation of poverty is untrue. In answers to interrogatories the plaintiffs Shimabuku, Brown, Graven and James reported that on July 12, 1972 they had money to their credit in the accounts of the penitentiary in the amounts, respectively, of $315.31, $45.00, $51.27 and $61.41. The court finds that as to the plaintiffs Shimabuku, Brown, Graven and James, the allegation of poverty is untrue and, pursuant to 28 U.S.C.A. § 1915(d), this action will be dismissed as to those plaintiffs. The jurisdiction of this court is challenged on the ground that the matter in controversy does not exceed $10,000, as required by 28 U.S.C.A. § 1331(a). The defendants’ point is well taken. Jurisdiction under § 1331 cannot be founded on a right secured by the Constitution unless that right “has a known and certain value, which can be proved and calculated, in the ordinary mode of a business transaction.” Barry v. Mercein, 46 U.S. 103, 120, 12 L.Ed. 70; Goldsmith v. Sutherland, 426 F.2d 1395 (6th Cir. 1970). The defendants are federal, not state," } ]

[ { "docid": "23155801", "title": "", "text": "requirement should be equally applicable to dismissals under § 1915(d). Of course, once the district court makes that predicate finding, it remains free to decide whether, on consideration of all the circumstances, dismissal with prejudice is the appropriate sanction. For the foregoing reasons, we will vacate the order dismissing plaintiff’s action with prejudice and remand this matter so that the district court may determine, in accordance with this opinion, whether any sanction should be imposed for filing the concededly untrue affidavit of poverty and, if so, whether it should be the severe sanction of dismissal with prejudice or some lesser sanction. . Under 28 U.S.C. § 1746 (1976), it is sufficient if the plaintiff makes an unsworn declaration under the penalty of perjury. The declaration avoids the difficulty, sometimes encountered, of finding a notary public in the prison to notarize the request for leave to proceed in forma pauperis. . In those cases where the district court has dismissed plaintiffs claim after determining that the affidavit of poverty was untrue or that the amount of assets disclosed did not warrant in forma pauperis status, there has been no indication that the dismissal was with prejudice. See, e. g., Ward v. Werner, 61 F.R.D. 639 (M.D.Pa.1974); Shimabuku v. Britton, 357 F.Supp. 825, 826 (D.Kan.1973), aff’d, 503 F.2d 38 (10th Cir. 1974). See also Braden v. Estelle, 428 F.Supp. 595 (S.D.Tex.1977). It has also been held that dismissals under § 1915(d) for “frivolous” complaints should be without prejudice so that plaintiff may file an amended complaint within a reasonable time. Mitchell v. Beaubouef, 581 F.2d 412, 416 (5th Cir. 1978), cert. denied, 441 U.S. 966, 99 S.Ct. 2416, 60 L.Ed.2d 1072 (1979). . This court has held that dismissal of a suit on the ground that it is frivolous under § 1915(d) should be tested by the same standard which would customarily be applicable under the Federal Rules. See McTeague v. Sosnowski, 617 F.2d 1016, 1019 (3d Cir. 1980); Lawson v. Prasse, 411 F.2d 1203, 1204 (3d Cir. 1969). . In Mas v. Coca-Cola Co., 163 F.2d 505, 508 (4th Cir. 1947)," }, { "docid": "23379534", "title": "", "text": "OPINION OF THE COURT GIBBONS, Circuit Judge. In this case, a state prisoner who had been committed to a Pennsylvania mental hospital filed a petition for a writ of habeas corpus in the district court seeking to challenge his confinement and the commitment provisions of § 411 of the Pennsylvania Mental Health and Mental Retardation Act of 1966, 50 P.S. § 4411. The district court refused to permit petitioner to proceed in forma pauperis. Unfortunately, because of the posture in which this case has arrived before us, the only issue we may consider is the proper construction of 28 U.S.C. § 1915(a). The case first came before this court on August 22, 1974 on petitioner’s motion for leave to proceed in forma pauperis. Since the affidavit established to the satisfaction of the panel that petitioner was unable to pay costs or to give security therefor, such leave was granted so as to enable him to prosecute his appeal. At the same time, recognizing the serious and complex issues raised by the petition for a writ of habeas corpus, this court appointed counsel. 18 U.S.C. § 3006A(g). Thereafter, the Mental Patient’s Civil Liberties Project of Philadelphia was granted leave to file a brief as amicus curiae. Later, when the case was assigned to this panel for consideration on its merits, we reviewed the record and discovered that the district court had never acted upon the merits of the petition. Instead, the district court had merely entered an order denying petitioner’s motion for leave to proceed in the district court in forma pauperis. We reverse and remand for further proceedings. In denying the motion the district court referred to Ward v. Werner, 61 F.R.D. 639 (M.D.Pa.1974), in which the same judge granted leave to proceed in forma pauperis to a prisoner who had $7.00 in his prison account but denied in forma pauperis to two prisoners who had assets of $65.00 and $50.00 respectively. In the instant case the record establishes that petitioner had $50.07 in his account at Farview State Hospital at the time he sought to file his petition, and" }, { "docid": "5426519", "title": "", "text": "employs the filing fee as a talisman which demarcates paupers from those considered to have funds sufficient to be able to pay it. Although we agree the district court must exercise its discretion in determining whether a petitioner qualifies as a pauper under § 1915, the exercise of such discretion should not be applied to deny access to the federal courts simply because of the plaintiff’s ability to pay for small physical or material comforts. As the court stated in Souder v. McGuire, 516 F.2d 820 (3d Cir. 1975), in reversing a decision by Judge Herman denying leave to proceed in forma pauperis: [W]e do not think that prisoners must totally deprive themselves of those small amenities of life which they are permitted to acquire in a prison or a mental hospital beyond the food, clothing, and lodging already furnished by the state. An account of $50.07 would not purchase many such amenities; perhaps cigarettes and some occasional reading material. These need not be surrendered in order for a prisoner or a mental patient to litigate in forma pauperis in the district court. Id. at 824. It has long been established that a party need not be penniless in order to invoke forma pauperis. Cf. Sejeck v. Singer Mfg. Co., 113 F.Supp. 281 (D.N.J.1953). The petitioner’s request to proceed in forma pauperis is granted and the case remanded to the district court for further proceedings. . The petitioner in this case is already a public charge. “To that extent the letter, but certainly not the spirit of Adkins may be distinguishable.” Souder v. McGuire, 516 F.2d 820, 823 n. 4 (3d Cir. 1975). . In justifying the refusal to allow two prisoners to proceed in forma pauperis, Judge Herman explained: “Both plaintiffs have cash available in their prison accounts well in excess of the $15 required to commence their civil suits.” 61 F.R.D. at 640. The plaintiffs had balances of $65 and $50 in their prison accounts. When “testing” the eligibility of the third plaintiff Judge Herman stated: “Plaintiff Ward presents a totally different situation. His $7.00 account falls short" }, { "docid": "7869032", "title": "", "text": "suit or other action as in other cases.” 28 U.S.C. § 1915(e). Federal appellate decisions have so interpreted this statute for twenty years, particularly in conjunction with a consideration of such unsuccessful plaintiff’s “capacity to pay the costs assessed.” Sales, 873 F.2d at 120. We perceive no chilling effect during this period of this construction of the statute (nor since 1989 when Sales was decided) that has slowed the onslaught of prisoner filings of civil rights claims in federal courts without prepayment of costs, with the potential of later assessment upon unsuccessful conclusion of the case. A constitutional challenge, accordingly, would not lie in our view on the application of § 1915(e) to assessment of costs against a prisoner who proceeded in forma pau-peris in district court. We perceive no chilling effect and no basis for a first amendment claim as to this longstanding interpretation and application of § 1915. The benefit extended under this statute to file suit without prepayment of costs is a privilege, not a right. Carter v. Thomas, 527 F.2d 1332 (5th Cir.1976); Startti v. United States, 415 F.2d 1115 (5th Cir.1969); Williams v. Field, 394 F.2d 329 (9th Cir.1968), cert. denied, 393 U.S. 891, 89 S.Ct. 213, 21 L.Ed.2d 171 (1968). There is no demonstrated limitation upon the first amendment claim presented by plaintiffs under the circumstances of this case on the privilege granted them to proceed in forma pauperis subject to possible later imposition of costs under § 1915. There is no showing whatever that this application of the statute is directed against these plaintiffs to chill their privilege to bring suits and appeals without prepaying costs. The cases cited by plain tiffs, such as Boddie v. Connecticut, 401 U.S. 371, 91 S.Ct. 780, 28 L.Ed.2d 113 (1971), that deal with denial of access to the courts in the first instance are clearly inapplicable here. Plaintiffs were simply not denied access to federal court, and whether or not they proceed originally in good faith is immaterial to the question of access. Their alleged “constitutional right to file a non-frivolous suit” was not precluded, nor" }, { "docid": "18813028", "title": "", "text": "by the statute of limitations. . Under 28 U.S.C. § 1915(a) (1976): Any court of the United States may authorize the commencement, prosecution or defense of any suit, action or proceeding, civil or criminal, or appeal therein, without prepayment of fees and costs or security therefor, by a person who makes affidavit that he is unable to pay such costs or give security therefor. Such affidavit shall state the nature of the action, defense or appeal and affiant’s belief that he is entitled to redress. . The court must rule on the motion even if the complaint is frivolous. See, e.g., Sinwell v. Shapp, 536 F.2d 15, 18-19 (3d Cir.1976). See generally Federal Judicial Center, Recommended Procedures for Handling Prisoner Civil Rights Litigation in the Federal Courts 56-57 (1980). . See S.O.U.P., Inc. v. FTC, 449 F.2d 1142, 1142-43 (D.C.Cir.1971) (corporation is not “person”); id. 1143-45 (Bazelon, C.J., dissenting) (corporation is “person”; single affidavit from corporate officer listing organizational resources is sufficient); Harlem River Consumers Co-op., Inc. v. Associated Groceries, 71 F.R.D. 93, 95-96 (S.D.N.Y.1976) (non-profit corporation suing under antitrust laws is person where shareholders do not stand to reap substantial benefit from suit, and where neither corporation nor shareholders can afford costs); River Valley, Inc. v. Dubuque County, 63 F.R.D. 123, 124-25 (N.D.Iowa 1974) (non-profit corporation formed to assist poor people may appear in forma pauperis when prevented by law from expending funds), mandamus denied and appeal dismissed on other grounds, 507 F.2d 582 (8th Cir.1974); Honolulu Lumber Co. v. American Factors, Ltd., 265 F.Supp. 578, 580-81 (D.Hawaii 1966) (corporation not person; if it were, affidavits from shareholders required), aff’d on other grounds, 403 F.2d 49 (9th Cir.1968) . See also Association for the Preservation of Freedom of Choice, Inc. v. Nation Co., 375 U.S. 899, 84 S.Ct. 190, 11 L.Ed.2d 142 (1963) (order denying petitioner leave to proceed in forma pauperis); Siegel v. William E. Bookhultz & Sons, 419 F.2d 720, 722 (D.C.Cir.1969) (trial court appointed counsel for corporation unable to afford attorney); Ad Hoc Com. on Consumer Protection v. United States, 313 F.Supp. 119, 120 (D.D.C.1970) (3-judge" }, { "docid": "20796421", "title": "", "text": "the same time intended to safeguard members of the public against an abuse of the privilege by evil-minded persons who might avail themselves of the shield of immunity from costs for the purpose of harassing those with whom they were not in accord, by subjecting them to vexatious and frivolous legal proceedings.” . See also Boyce v. Alizaduh, 595 F.2d 948, 950-51 (4th Cir. 1979); Graham v. Riddle, 554 F.2d 133, 134-35 (4th Cir. 1977). . See Adkins v. DuPont Co., 335 U.S. 331, 339, 69 S.Ct. 85, 89, 93 L.Ed. 43 (1948). . In re Stump, 449 F.2d 1297, 1298 (1st Cir. 1971). See also, Aldisert Report No. 2 at 3 on Prisoner Cases, as quoted in Carter v. Telectron, Inc., 452 F.Supp. 944, 949 (S.D.Tex.1976): “The usual restraint on unwarranted litigation, expense, is absent in a field where prisoners can usually proceed in forma pauperis and where the expenditure of time in preparation is a welcome relief from the tedium of prison life.” . In Souder v. McGuire, 516 F.2d 820, 823-24 (3d Cir. 1975), the Court looked to the prisoner’s trust fund account; see also, Braden v. Estelle, supra, 428 F.Supp. 600-01. . Ward v. Werner, 61 F.R.D. 639, 640 (M.D.Pa.1974); Shimabuku v. Britton, 357 F.Supp. 825, 826 (D.Kan.1973), aff'd., 503 F.2d 38 (10th Cir. 1974). When these cases were decided, however, the filing fee was but $15. Such fee was now being increased to $60. At best, then, under the new conditions, it is assumed that a prisoner, whose trust account was more than $50 would be compelled in the courts adopting this standard to make only a partial payment of the filing fee. . Unquestionably the result reached in this case was strongly influenced by the Court’s view of the strength and complexity of the prisoner’s case. Thus, it began its discussion of the indigency decision with this statement which understandably colored its ultimate decision (516 F.2d at 823): “What we have said concerning the complexity of the legal issues involved here amply demonstrates that this habeas corpus petition is not one of the kind" }, { "docid": "5426522", "title": "", "text": "is a matter committed to the sound discretion of the district court. Since the filing fee was $15.00 and petitioner had $66.85 in his penitentiary account, I cannot say that the district court abused its discretion in denying petitioner in forma pauperis status. See Ward v. Werner, 61 F.R.D. 639 (M.D.Pa.1974) (district court held two prison inmates who had accounts of $50 and $65 were not entitled to proceed in forma pauperis with civil suit against prison officials, but one prisoner with $7 could so proceed since the filing fee was $15); Shimabuku v. Britton, 357 F.Supp. 825 (D.Kan.1973), aff’d, 503 F.2d 38 (10th Cir. 1974) (district court denied in forma pauperis standing to parties who had prison accounts of $315.31, $45.00, $51.27, and $61.41, respectively); Carroll v. United States, 320 F.Supp. 581 (S.D.Tex.1970) (plaintiff was denied in forma pauperis sta tus since he had $204.90 and the filing fee was $15). . Startti v. United States, 415 F.2d 1115, 1116 (5th Cir. 1969). See also Carter v. Thomas, 527 F.2d 1332, 1333 (5th Cir. 1976); Tyler v. Callahan, 74 F.R.D. 421, 423 (E.D.Mo.1977), aff’d, 573 F.2d 1313 (8th Cir.), cert. denied, 436 U.S. 947, 98 S.Ct. 2851, 56 L.Ed.2d 788 (1978); Ex parte Tyler, 70 F.R.D. 456, 457 (E.D.Mo.1976); Rhodes v. Houston, 258 F.Supp. 546, 578 (D.Neb.1966) (and cases cited therein), aff’d, 418 F.2d 1309 (8th Cir. 1969), cert. denied, 397 U.S. 1049, 90 S.Ct. 1382, 25 L.Ed.2d 662 (1970). . Forester v. California Adult Authority, 510 F.2d 58, 60 (8th Cir. 1975) (and cases cited therein); Venable v. Meyers, 500 F.2d 1215, 1216 (9th Cir.) (and cases cited therein), cert. denied, 419 U.S. 1090, 95 S.Ct. 683, 42 L.Ed.2d 683 (1974)." }, { "docid": "5426518", "title": "", "text": "denied leave to a petitioner to proceed in forma pauperis are distinguishable. In several of those cases the district court’s denial of petitioner’s motion to proceed in forma pauperis resulted from the determination that the complaint was frivolous. See, e.g., Carter v. Thomas, 527 F.2d 1332, 1333 (5th Cir. 1976); Forester v. California Adult Authority, 510 F.2d 58, 60 (8th Cir. 1975); Startti v. United States, 415 F.2d 1115, 1116 (5th Cir. 1969); Tyler v. Callahan, 74 F.R.D. 421, 423 (E.D. Mo.1977), aff’d without opinion, 573 F.2d 1313 (8th Cir.), cert. denied, 436 U.S. 947, 98 S.Ct. 2851, 56 L.Ed.2d 788 (1978); Ex parte Tyler, 70 F.R.D. 456, 457 (E.D.Mo.1976). Clearly § 1915 was not enacted for the purpose of requiring the public to underwrite frivolous lawsuits. However, in this case, the district court did not pass upon the merits of the petition, but denied leave to proceed on the ground that petitioner had sufficient funds to pay the filing fee. We cannot endorse a niggardly interpretation or application of § 1915 that so rigidly employs the filing fee as a talisman which demarcates paupers from those considered to have funds sufficient to be able to pay it. Although we agree the district court must exercise its discretion in determining whether a petitioner qualifies as a pauper under § 1915, the exercise of such discretion should not be applied to deny access to the federal courts simply because of the plaintiff’s ability to pay for small physical or material comforts. As the court stated in Souder v. McGuire, 516 F.2d 820 (3d Cir. 1975), in reversing a decision by Judge Herman denying leave to proceed in forma pauperis: [W]e do not think that prisoners must totally deprive themselves of those small amenities of life which they are permitted to acquire in a prison or a mental hospital beyond the food, clothing, and lodging already furnished by the state. An account of $50.07 would not purchase many such amenities; perhaps cigarettes and some occasional reading material. These need not be surrendered in order for a prisoner or a mental patient to" }, { "docid": "1044022", "title": "", "text": "frivolous, or malicious lawsuits. They “are immune from imposition of costs if they are unsuccessful; and because of their poverty, they are practically immune from later tort actions for ‘malicious prosecution’ or abuse of process.” Jones v. Bales, 58 F.R.D. 453, 463 (N.D.Ga.1972), aff'd, 480 F.2d 805 (5th Cir.1973). The problem can be particularly acute when the litigant is a prisoner who has substantial amounts of idle time and a free supply of writing materials and postage stamps. Our procedural rules are premised on the assumption that litigants are subject to limitations of time and expense and have a basic respect for accuracy. Thus, we interpret the rules liberally so that only the truly untenable claims are dismissed or decided summarily. Since these assumptions may not always be operative in actions proceeding in forma pauperis, especially where a prisoner has initiated the lawsuit pro se, Congress has authorized special procedures for handling in forma pauperis complaints. Green v. City of Montezuma, 650 F.2d 648, 651 (5th Cir.1981) (Unit B); Jones v. Bales, supra, 58 F.R.D. at 464. These procedures are codified at 28 U.S. C.A. § 1915. Significantly, the procedures do not provide for the use of injunctions. Section 1915 mandates a two-stage procedure for processing a prisoner’s pro se civil rights complaint filed in forma pauperis. See Green v. City of Montezuma, supra, 650 F.2d at 650 n. 3; Woodall v. Foti, 648 F.2d 268, 271 (5th Cir.1981) (Unit A); Watson v. Ault, 525 F.2d 886, 891 (5th Cir.1976). Initially, the district court must determine whether the plaintiff is unable to prepay costs and fees and is therefore a pauper under the statute. 28 U.S.C.A. § 1915(a). If the complainant’s affidavit was falsely sworn or his financial condition makes him ineligible, in forma pauperis status can be denied without considering either the merits of the complaint or whether it was filed maliciously. Only after making a finding of poverty and docketing the case can the court proceed to the next question: whether the claim asserted is frivolous or malicious. 28 U.S.C.A. § 1915(d). If it appears that the claim" }, { "docid": "7869028", "title": "", "text": "873 F.2d at 120. Flint v. Haynes, 651 F.2d 970 (4th Cir.1981), cert. denied, 454 U.S. 1151, 102 S.Ct. 1018, 71 L.Ed.2d 306 (1982), involved a similar situation; there the Fourth Circuit permitted the district court to assess costs under § 1915 against in forma pauperis prisoner plaintiffs who had filed 42 U.S.C. § 1983 actions against prison officials. The use of the word “prepayment” in subsection (a) indicates that Congress did not intend to waive forever the payment of costs, but rather it intended to allow qualified litigants to proceed without having to advance the fees and costs associated with litigation. By permitting the court to enter judgment for costs “as in other cases,” subsection (e) evinces a congressional intent that litigants may eventually be liable for costs. It is clear that § 1915 contemplates the postponement of fees and costs for litigants who are granted in forma pauperis status. Thus, we find a district court is empowered to award costs even when it has previously granted a litigant the benefits of § 1915(a). We reached the same result in Perkins v. Cingliano, 296 F.2d 567, 569 (4th Cir.1961) in which we held “[sjection 1915(e) is too plain to leave any room for doubt, and completely disposes of the petitioner’s contention that costs may not be adjudged against him.” Accord, Duhart v. Carlson, 469 F.2d 471 (10th Cir.1972); Pasquarella v. Santos, 416 F.2d 436 (1st Cir.1969); Fletcher v. Young, 222 F.2d 222 (4th Cir.), cert. denied, 350 U.S. 916, 76 S.Ct. 201, 100 L.Ed. 802 (1955); Moss v. Ward, 434 F.Supp. 69 (S.D.N.Y.1977); Carter v. Telectron, Inc., 452 F.Supp. 939 (S.D.Tex. 1976). Id. at 972-73 (footnote omitted). See also Marks v. Calendine, 80 F.R.D. 24 (N.D.W.Va.1978) ($289 costs assessed against a “disposable monthly income” of $20 of the unsuccessful prisoner plaintiff). The Flint court expressly declined to limit its holding to “exceptional cases where the claim is frivolous, malicious, or utterly without foundation.” 651 F.2d at 973. The court made its holding in response to plaintiffs’ argument that assessment of costs in such situations would hamper access to the" }, { "docid": "18301580", "title": "", "text": "respectively, were not entitled to proceed as paupers); Shimabuku v. Britton, 357 F.Supp. 825, 826 (D.Kan.1973), aff'd, 503 F.2d 38 (10th Cir.1974) (rejecting indigency standing for inmates who had prison accounts ranging from $315.31 to $45, respectively); Carroll v. United States, 320 F.Supp. 581, 582 (S.D.Tex.1970) (forma pauperis inappropriate vis-a-vis filing fees since plaintiff had stashed away upwards of $200). Cf. Williams v. Spencer, 455 F.Supp. 205, 209 (D.Md.1978); Braden v. Estelle, 428 F.Supp. 595, 600 (S.D.Tex.1977). But, there is no bright-line demarcation. At bottom, the recipe to be utilized must be one in which ingredients of fairness and human decency are brewed in a cauldron of economic reality. If an applicant has the wherewithal to pay court costs, or some part thereof, without depriving himself and his dependents (if any there be) of the necessities of life, then he should be required, in the First Circuit’s phrase, to “put his money where his mouth is.” Stump, 449 F.2d at 1298. Accord Adkins, 335 U.S. at 339, 69 S.Ct. at 89; Ali, 547 F.Supp. at 130; Carroll, 320 F.Supp. at 582. Conversely, if a contribution towards such expenses is outside an applicant’s means or would so deplete his resources as to work a deprivation of basic human needs, resort to forma pauperis is entirely appropriate. See Adkins, supra; In re Smith, 600 F.2d 714, 716 (8th Cir.1979); Souder v. McGuire, 516 F.2d 820, 824 (3d Cir.1975); Ali, 547 F.Supp. at 130. Accord Zaun v. Dobbin, 628 F.2d 990, 992-93 (7th Cir.1980). Prisoner cases, however, present a unique taxonomy: by definition, a convict’s “basic human needs” — food, shelter, clothing, health care, and the like — are fully subsidized by the government in consequence of his institutionalization. Unless dependents are somehow involved, there is certainly less cause for concern as to a prisoner’s need for personal funds to sustain his existence. Yet, human dignity comes in variegated shapes and sizes. As the Third Circuit has noted: [W]e do not think that prisoners must totally deprive themselves of those small amenities of life which they are permitted to acquire in a prison" }, { "docid": "18333700", "title": "", "text": "of withholding information and falsifying his prison records. Relief is sought in the form of monetary compensation from various named individuals ranging from $50.00 to $100,000.00. After in forma pauperis status was granted and the complaint issued, the Defendants filed a motion to strike the complaint in toto with a supporting brief. Plaintiff responded by filing an opposition brief, a request to add another party and a motion for default judgment. Defendants replied to each of these requests and no further pleadings have been filed. LEGAL STANDARD Federal Rule of Civil Procedure 12(f) provides in relevant part that: ... the court may order stricken from any pleading any insufficient defense or any redundant, immaterial, impertinent, or scandalous matter. “Scandalous matter” has been defined as “that which improperly casts a derogatory light on someone, most typically on a party to the action.” 5 Wright and Miller, Federal Practice and Procedure, Civil, Section 1382 at 826 (footnote omitted). See also Gilbert v. Eli Lilly & Co., Inc., 56 F.R.D. 116 (D.C.PR 1972). “Scandalous pleading for purposes of Rule 12(f) must ‘reflect cruelly’ upon the defendant’s moral character, use ‘repulsive language’ or ‘detract from the dignity of the court.’ ” See Doc. No. 8 at 4, quoting Skadegaard v. Farrell, 578 F.Supp. 1209, 1221 (D.N.J.1984), citing 2A Moore’s Federal Practice, Section 12.21 at 2426. Although the invocation of Fed.R.Civ.P. 12(f) to strike an entire complaint is rare, especially in pro se matters, such an action is not unknown. Ex Parte Tyler, 70 F.R.D. 456, 457 (E.D.Mo.1976), citing Hohensee v. Watson, 188 F.Supp. 941 (M.D.Pa.1959), aff'd, 283 F.2d 950 (3d Cir.1960); Skolnick v. Hallet, 350 F.2d 861 (7th Cir.1965); See also, Agran v. Isaacs, 306 F.Supp. 945 (D.C.Ill.1969); Theriault v. Silber, 574 F.2d 197 (5th Cir.1978), cert. denied, 440 U.S. 917, 99 S.Ct. 1236, 59 L.Ed.2d 648. DISCUSSION Plaintiff accuses Allenwood officials of failing to forward favorable information to the United States Parole Commission and improperly maintaining his prison file. It is Plaintiff’s belief that the named Defendants “abused their discretion” in not maintaining copies of particular documents in his Central File and by" }, { "docid": "5426517", "title": "", "text": "expense of supporting the person thereby made an object of public support. Nor does the re-suit seem more desirable if the effect of this statutory interpretation is to force a litigant to abandon what may be a meritorious claim in order to spare himself complete destitution. We think a construction of the statute achieving such consequences is an inadmissible one. The only decision which provides direct support for the result reached by the district court in this case is Ward v. Werner, 61 F.R.D. 639 (M.D.Pa.1974). In that case the district court stated the “test” for determining eligibility under § 1915 is “whether the party has sufficient funds that access to the courts is not blocked by a denial of the privilege to proceed in forma pauperis.” Id. at 640. Judge Herman’s application of this “test” in Ward reveals that a prisoner, who is provided the necessities of life by the state, is “blocked” from court only if his financial resources are less than the required filing fee. Most of the other cases which have denied leave to a petitioner to proceed in forma pauperis are distinguishable. In several of those cases the district court’s denial of petitioner’s motion to proceed in forma pauperis resulted from the determination that the complaint was frivolous. See, e.g., Carter v. Thomas, 527 F.2d 1332, 1333 (5th Cir. 1976); Forester v. California Adult Authority, 510 F.2d 58, 60 (8th Cir. 1975); Startti v. United States, 415 F.2d 1115, 1116 (5th Cir. 1969); Tyler v. Callahan, 74 F.R.D. 421, 423 (E.D. Mo.1977), aff’d without opinion, 573 F.2d 1313 (8th Cir.), cert. denied, 436 U.S. 947, 98 S.Ct. 2851, 56 L.Ed.2d 788 (1978); Ex parte Tyler, 70 F.R.D. 456, 457 (E.D.Mo.1976). Clearly § 1915 was not enacted for the purpose of requiring the public to underwrite frivolous lawsuits. However, in this case, the district court did not pass upon the merits of the petition, but denied leave to proceed on the ground that petitioner had sufficient funds to pay the filing fee. We cannot endorse a niggardly interpretation or application of § 1915 that so rigidly" }, { "docid": "1087983", "title": "", "text": "MEMORANDUM OPINION HERMAN, District Judge. The plaintiffs filed a joint complaint seeking leave to proceed in forma pau peris. On the face of the affidavits of poverty the plaintiff Ward alleges total assets of $7.00 in his prison account; plaintiff Ingram, assets of $65.00; and plaintiff Harris, assets of $50.00. Without reaching the merits of the claim, this court is convinced that the plaintiffs Ingram and Harris fail to qualify as paupers within the meaning of 28 U.S.C. § 1915(a). Both plaintiffs have cash available in their prison accounts well in excess of the $15 required to commence their civil suits. This court is mindful that poverty sufficient to qualify under § 1915 does not require penniless destitution. Adkins v. E. I. Du Pont De Nemours, 335 U.S. 331, 69 S.Ct. 85, 93 L.Ed. 43 (1948). However, leave to proceed in forma pauperis is discretionary with the court; that discretion to be exercised so as not to deny a party access to the courts solely on account of financial standing. Proceeding in forma pauperis is a privilege, not a right. Shobe v. People of the State of California, 362 F.2d 545 (9th Cir.), cert. denied, 385 U.S. 887, 87 S.Ct. 185, 17 L.Ed.2d 115 (1966). There exists no fixed net worth which disqualifies a party as a pauper. United States v. Scharf, 354 F.Supp. 450 (E.D.Pa.1973); Carroll v. United States, 320 F.Supp. 581 (S.D.Tex.1970). Yet, the mere assertion of poverty does not serve as a substitute for indigency. Therefore, this court views the test as to whether the party has sufficient funds that access to the courts is not blocked by a denial of the privilege to proceed in forma pauperis. Clearly, plaintiffs Ingram and Harris, through private funds, have an unimpaired avenue to the federal courts without financial assistance from the government. In accord with the Court’s decision is Shimabuku v. Britton, 357 F.Supp. 825 (D.C.Kan.1973) which denied in forma pauperis standing to parties who had prison accounts of $315.31; $45.00; $51.27; and $61.41. See also, United States v. Crawford, 54 F.R.D. 362 (D.C.Minn.1973). The matter was aptly stated" }, { "docid": "1087984", "title": "", "text": "a privilege, not a right. Shobe v. People of the State of California, 362 F.2d 545 (9th Cir.), cert. denied, 385 U.S. 887, 87 S.Ct. 185, 17 L.Ed.2d 115 (1966). There exists no fixed net worth which disqualifies a party as a pauper. United States v. Scharf, 354 F.Supp. 450 (E.D.Pa.1973); Carroll v. United States, 320 F.Supp. 581 (S.D.Tex.1970). Yet, the mere assertion of poverty does not serve as a substitute for indigency. Therefore, this court views the test as to whether the party has sufficient funds that access to the courts is not blocked by a denial of the privilege to proceed in forma pauperis. Clearly, plaintiffs Ingram and Harris, through private funds, have an unimpaired avenue to the federal courts without financial assistance from the government. In accord with the Court’s decision is Shimabuku v. Britton, 357 F.Supp. 825 (D.C.Kan.1973) which denied in forma pauperis standing to parties who had prison accounts of $315.31; $45.00; $51.27; and $61.41. See also, United States v. Crawford, 54 F.R.D. 362 (D.C.Minn.1973). The matter was aptly stated in Carroll v. United States, supra, 320 F.Supp. at 582: “Leave to so proceed should not be granted by the Court unless it reasonably appears that the cost of filing would be beyond petitioner’s means. [T]he category of persons entitled to the assistance of Section 1915 would not appear to include this petitioner, whose necessaries of life are provided by the United States [penitentiary] and whose liquid assets admittedly exceed the filing fee. ****** “Having raised himself above penury, petitioner must now confront the initial dilemma which faces most other potential civil litigants: is the merit of the claim worth the cost of pursuing it?” See also, Green v. Cotton Concentration Co., 294 F.Supp. 34 (S.D.Tex.1968). Plaintiff Ward presents a totally different situation. His $7.00 account falls short of the needed filing fee, clearly qualifying him to proceed in for-ma pauperis. The court has examined the complaint and finds nothing in it to justify the continued joinder of parties, whether or not all three qualify as indigent. The fact that two are not indigent necessitates" }, { "docid": "1688271", "title": "", "text": "mail sent to Billy Joe Tyler asking for damages and jury trials on each COUNT seperately [sic].” The petitioner has also stated in a letter to this Court that: “Because of you I have had to file numerous lawsuits that will waste the court’s time and money.” An examination of the complaint filed by petitioner in the present lawsuit indicates that it is facially frivolous. Essentially, the petitioner is alleging that a conspiracy exists between the Circuit Attorney for the City of St. Louis, and various other prosecutorial and law enforcement officials to deny him access to the courts. Petitioner has raised these allegations in the numerous other lawsuits filed. The case law implementing the provisions of 28 U.S.C. § 1915 clearly indicate that an in forma pauperis litigant’s access to the courts is a matter of privilege, not of right, and should not be used to abuse the process of the courts. Urbano v. Sondern, 41 F.R.D. 355 (D.C., Conn., 1966) aff’d 370 F.2d 13 (2d Cir., 1966) cert. den. 386 U.S. 1034, 87 S.Ct. 1485, 18 L.Ed.2d 596 (1966); Startti v. U. S., 415 F.2d 1115 (5th Cir., 1969). Since the petitioner’s complaint is clearly frivolous, he should not be allowed to proceed in forma pauperis under 28 U.S.C. § 1915. Courts have repeatedly struck complaints which contained scurrilous, offensive and objectionable allegations against courts, prosecutors, and police officers. Hohensee v. Watson, 188 F.Supp. 941 (M.D.Penn., 1959); Skolnick v. Hallet, 350 F.2d 861 (7th Cir., 1965). The petitioner’s complaint is clearly within the ambits of Federal Rule of Civil Procedure 12(f) in that it contains immaterial, impertinent or scandalous matter in toto. Accordingly, this Court will order petitioner’s complaint struck. It is within this Court’s powers inherent under 28 U.S.C. § 1651(a) that a litigant who seeks to use the forum of the Courts to harass the Courts and other potential parties, may be enjoined from filing any legal actions. Ruderer v. United States, 462 F.2d 897 (8th Cir., 1972), cert. den., 409 U.S. 1031, 93 S.Ct. 540, 34 L.Ed.2d 482 (1972); Ruderer v. Department of Justice, 389" }, { "docid": "5426520", "title": "", "text": "litigate in forma pauperis in the district court. Id. at 824. It has long been established that a party need not be penniless in order to invoke forma pauperis. Cf. Sejeck v. Singer Mfg. Co., 113 F.Supp. 281 (D.N.J.1953). The petitioner’s request to proceed in forma pauperis is granted and the case remanded to the district court for further proceedings. . The petitioner in this case is already a public charge. “To that extent the letter, but certainly not the spirit of Adkins may be distinguishable.” Souder v. McGuire, 516 F.2d 820, 823 n. 4 (3d Cir. 1975). . In justifying the refusal to allow two prisoners to proceed in forma pauperis, Judge Herman explained: “Both plaintiffs have cash available in their prison accounts well in excess of the $15 required to commence their civil suits.” 61 F.R.D. at 640. The plaintiffs had balances of $65 and $50 in their prison accounts. When “testing” the eligibility of the third plaintiff Judge Herman stated: “Plaintiff Ward presents a totally different situation. His $7.00 account falls short of the needed filing fee, clearly qualifying him to proceed in forma pauperis.” Id. . It is interesting to note that the plaintiff in Souder not only had an account balance of $50.07 but also received $15 every two weeks from his mother. Thus, the plaintiff who was determined to be a pauper in that case is considerably more affluent than petitioner since Smith stated in his affidavit that he has no income. . Our decision in no way precludes the district court from finding that Smith’s claims are frivolous and therefore ordering a dismissal of his petition. See Forester v. California Adult Authority, 510 F.2d 58, 60 (8th Cir. 1975). ROSS, Circuit Judge, dissenting. I do not agree that the district court should be reversed in this case. In civil matters there is no absolute right to proceed in forma pauperis, rather it is a privilege extended to those unable to pay filing fees when the action is neither malicious nor frivolous. And the grant or denial of leave to proceed in forma pauperis" }, { "docid": "18301579", "title": "", "text": "Lines, Inc., 461 F.2d 649, 651 (7th Cir.1972). In practice, however, the idiosyncrasies of individual cases and the difficulties so often inherent in the hands-on application of high-minded principle tend to blur the picture. Many courts have held that petitioners with modest cash reserves are not paupers within the intendment of 28 U.S.C. § 1915(a) for the purpose of filing fees, initial service of process costs and the like. See, e.g., Stump, supra (order that prisoner with institutional account totaling $218 pay filing fees affirmed); Ali v. Cuyler, 547 F.Supp. 129, 130 (E.D.Pa.1982) (“plaintiff possessed savings of $450 and the magistrate correctly determined that this amount was more than sufficient to allow the plaintiff to pay the filing fee in this action ... ”); United States ex rel. Irons v. Pennsylvania, 407 F.Supp. 746, 747 (not an abuse of discretion to require a state prisoner who had $170.40 on hand to pay filing fee in habeas corpus proceeding); Ward v. Werner, 61 F.R.D. 639, 640 (M.D.Pa.1974) (prison inmates who had accounts of $50 and $65, respectively, were not entitled to proceed as paupers); Shimabuku v. Britton, 357 F.Supp. 825, 826 (D.Kan.1973), aff'd, 503 F.2d 38 (10th Cir.1974) (rejecting indigency standing for inmates who had prison accounts ranging from $315.31 to $45, respectively); Carroll v. United States, 320 F.Supp. 581, 582 (S.D.Tex.1970) (forma pauperis inappropriate vis-a-vis filing fees since plaintiff had stashed away upwards of $200). Cf. Williams v. Spencer, 455 F.Supp. 205, 209 (D.Md.1978); Braden v. Estelle, 428 F.Supp. 595, 600 (S.D.Tex.1977). But, there is no bright-line demarcation. At bottom, the recipe to be utilized must be one in which ingredients of fairness and human decency are brewed in a cauldron of economic reality. If an applicant has the wherewithal to pay court costs, or some part thereof, without depriving himself and his dependents (if any there be) of the necessities of life, then he should be required, in the First Circuit’s phrase, to “put his money where his mouth is.” Stump, 449 F.2d at 1298. Accord Adkins, 335 U.S. at 339, 69 S.Ct. at 89; Ali, 547 F.Supp. at" }, { "docid": "5426521", "title": "", "text": "of the needed filing fee, clearly qualifying him to proceed in forma pauperis.” Id. . It is interesting to note that the plaintiff in Souder not only had an account balance of $50.07 but also received $15 every two weeks from his mother. Thus, the plaintiff who was determined to be a pauper in that case is considerably more affluent than petitioner since Smith stated in his affidavit that he has no income. . Our decision in no way precludes the district court from finding that Smith’s claims are frivolous and therefore ordering a dismissal of his petition. See Forester v. California Adult Authority, 510 F.2d 58, 60 (8th Cir. 1975). ROSS, Circuit Judge, dissenting. I do not agree that the district court should be reversed in this case. In civil matters there is no absolute right to proceed in forma pauperis, rather it is a privilege extended to those unable to pay filing fees when the action is neither malicious nor frivolous. And the grant or denial of leave to proceed in forma pauperis is a matter committed to the sound discretion of the district court. Since the filing fee was $15.00 and petitioner had $66.85 in his penitentiary account, I cannot say that the district court abused its discretion in denying petitioner in forma pauperis status. See Ward v. Werner, 61 F.R.D. 639 (M.D.Pa.1974) (district court held two prison inmates who had accounts of $50 and $65 were not entitled to proceed in forma pauperis with civil suit against prison officials, but one prisoner with $7 could so proceed since the filing fee was $15); Shimabuku v. Britton, 357 F.Supp. 825 (D.Kan.1973), aff’d, 503 F.2d 38 (10th Cir. 1974) (district court denied in forma pauperis standing to parties who had prison accounts of $315.31, $45.00, $51.27, and $61.41, respectively); Carroll v. United States, 320 F.Supp. 581 (S.D.Tex.1970) (plaintiff was denied in forma pauperis sta tus since he had $204.90 and the filing fee was $15). . Startti v. United States, 415 F.2d 1115, 1116 (5th Cir. 1969). See also Carter v. Thomas, 527 F.2d 1332, 1333 (5th Cir." }, { "docid": "23379535", "title": "", "text": "of habeas corpus, this court appointed counsel. 18 U.S.C. § 3006A(g). Thereafter, the Mental Patient’s Civil Liberties Project of Philadelphia was granted leave to file a brief as amicus curiae. Later, when the case was assigned to this panel for consideration on its merits, we reviewed the record and discovered that the district court had never acted upon the merits of the petition. Instead, the district court had merely entered an order denying petitioner’s motion for leave to proceed in the district court in forma pauperis. We reverse and remand for further proceedings. In denying the motion the district court referred to Ward v. Werner, 61 F.R.D. 639 (M.D.Pa.1974), in which the same judge granted leave to proceed in forma pauperis to a prisoner who had $7.00 in his prison account but denied in forma pauperis to two prisoners who had assets of $65.00 and $50.00 respectively. In the instant case the record establishes that petitioner had $50.07 in his account at Farview State Hospital at the time he sought to file his petition, and that every two weeks his aged mother sent him an additional $15.00. Without commenting on the appropriateness of the rulings in Ward v. Werner, supra, we hold that in this case (1) the court erred in refusing to allow petitioner leave, pursuant to 28 U.S.C. § 1915(a), to proceed without prepayment of fees and costs or security therefor, and, (2) the court should have appointed an attorney to represent petitioner pursuant to 18 U.S.C. § 3006A(g). Since there is no district court record, the description of the case which follows is set forth in reliance on representations in the several briefs filed in this court. Petitioner was sentenced to a term of life imprisonment in 1962 upon a plea of guilty to a felony-murder. He was imprisoned initially at Graterford, and in 1965, was transferred to the State Correctional Institution at Pittsburgh. In 1967 he was transferred to Farview State Hospital upon his own request for commitment. In 1971 he was returned to the State Correctional Institution at Pittsburgh where he was confined until May" } ]

[ { "docid": "10717739", "title": "", "text": "The law of the Seventh Circuit acknowledges this same dichotomy. See Myers v. Ill. Cent. R.R. Co., 629 F.3d 639, 641-42 (7th Cir.2010). General causation refers to “whether the substance at issue had the capacity to cause the harm alleged, while ‘individual causation’ refers to whether a particular individual suffers from a particular ailment as a result of exposure to a substance.” 7-Eleven, 857 N.E.2d at 389. The district court concluded that, without an appropriate expert, Higgins could not establish specific causation — that is, that the inhalation of chemical fumes caused his health conditions. Higgins, however, maintains that he does not need an expert to establish that the incident at the Bahari River sparked his ailments. As his primary support, he emphasizes our statement in Myers that “[e]xpert testimony is unnecessary in cases where a layperson can understand what caused the injury.” 629 F.3d at 648. To illustrate the point, we noted that “when a plaintiff suffers from a broken leg or a gash when hit by a vehicle, he doesn’t need to produce expert testimony.” Id. Higgins analogizes his injuries to those mentioned in Myers, and cites to the Second Circuit’s decision in Ulfik v. Metro-North Commuter Railroad, 77 F.3d 54 (2d Cir.1996), which he contends underscores the aptness of his comparison. In Ulfik, the court deemed a causation expert unnecessary for a jury to conclude that the inhalation of paint fumes — which the plaintiff breathed for a period of six hours while working in an underground railroad tower — caused the plaintiff to become dizzy, resulting in his falling down a flight of stairs. Id. at 55-56 & 59. “[T]he trier of fact could reasonably determine, without expert testimony, that prolonged exposure to paint fumes would cause headache, nausea, and dizziness,” the court said. Id. at 59-60. Higgins argues that here, too, it is “obvious” that inhaling chlorine gas would cause the injuries he suffers. We disagree. Unlike dizziness in the wake of extended exposure to paint fumes or a broken leg suffered during a car crash, a typical layperson does not possess the requisite knowledge" } ]

[ { "docid": "12216887", "title": "", "text": "doctrine of res ipsa loquitur applies, raising an inference of negligence on the part of Ford. We affirm. I. BACKGROUND The Piltches were co-owners of a 2003 Mercury Mountaineer. While driving the Mountaineer in 2006, the Piltches were involved in a car' accident in which the air bags did not deploy. Following the aeci- dent, the Piltches had the vehicle repaired. They did not confirm whether the restraint control module, which monitors a crash and decides whether to deploy air bags, was reset during or after repairs after the 2006 collision. But Mr. Piltch explained that it was his understanding that “whatever needed to be reset in the Mercury Mountaineer ... was, in fact, reset.” A year later in 2007, the Piltches were involved in another accident after driving over some black ice. This time, their Mountaineer did a 360-degree turn and struck a low wall. The vehicle ricocheted off the wall, slid down a hill, and collided with several trees before coming to a rest. The vehicle’s air bags again did not deploy during or after the accident. As a result of the accident, Mr. Piltch broke several vertebrae and Mrs. Piltch sustained neurological injuries. After this crash, the Piltches had their Mountaineer repaired at the same shop that had repaired the car after the 2006 accident. In 2009, the Piltches sold the Mountaineer. The buyer happened to be a mechanic who reprogrammed the vehicle’s blackbox, wiping any data that might remain from either crash. In February 2010, the Piltches sued Ford in federal court, alleging the Mountaineer’s air bags were defective and enhanced the injuries they suffered as a result of the 2007 accident. ' Due to a deficient jurisdictional statement, the court dismissed the complaint without prejudice. The Piltches again filed suit in December 2010, this time in state court, and Ford removed the case to federal court. During discovery, the Piltches never served any expert reports, despite obtaining an extension of the expert-disclosure deadline. Ford moved for summary judgment in November 2011, arguing that the Piltches could not prove a prima facie case of design or" }, { "docid": "12216886", "title": "", "text": "BAUER, Circuit Judge. Howard Piltch and Barbara Nelson-Piltch (the “Piltches”) were traveling in their 2003 Mercury Mountaineer in February 2007 when they hit a patch of black ice, causing the car to slide off the road and into a wall. Upon impact, none of the car’s air bags deployed and both Piltches were injured. The Piltches filed the present action in Indiana state court against Ford Motor Company (“Ford”) in 2010, alleging the vehicle was defective under Indiana law. Ford removed the action to federal court, and shortly thereafter moved for summary judgment. On March 28, 2014, the district court granted Ford’s summary judgment motion holding that, without expert testimony, the Piltches could not create an issue of fact as to proximate cause. On appeal, the Piltches contend that (1) they state a claim for relief under the Indiana Products Liability Act (“IPLA”); (2) there is sufficient circumstantial evidence of a defective product that expert testimony is not required; (3) they are not required to produce expert testimony to establish proximate cause; and (4) the doctrine of res ipsa loquitur applies, raising an inference of negligence on the part of Ford. We affirm. I. BACKGROUND The Piltches were co-owners of a 2003 Mercury Mountaineer. While driving the Mountaineer in 2006, the Piltches were involved in a car' accident in which the air bags did not deploy. Following the aeci- dent, the Piltches had the vehicle repaired. They did not confirm whether the restraint control module, which monitors a crash and decides whether to deploy air bags, was reset during or after repairs after the 2006 collision. But Mr. Piltch explained that it was his understanding that “whatever needed to be reset in the Mercury Mountaineer ... was, in fact, reset.” A year later in 2007, the Piltches were involved in another accident after driving over some black ice. This time, their Mountaineer did a 360-degree turn and struck a low wall. The vehicle ricocheted off the wall, slid down a hill, and collided with several trees before coming to a rest. The vehicle’s air bags again did not deploy during" }, { "docid": "7190323", "title": "", "text": "and possibly compensable under the Act. But “the Act did not make the employer an insurer. The liability which it imposed was the liability for negligence.” Wilkerson, 336 U.S. at 68, 69 S.Ct. 413 (Douglas, J., concurring). That, of course, means an employee must prove that the railroad was negligent and that the railroad’s negligence caused the injury at issue. Claar v. Burlington N.R.R. Co., 29 F.3d 499, 503 (9th Cir.1994). And nothing in the Act alters the accepted fact that unless the connection between the negligence and the injury is a kind that would be obvious to laymen, expert testimony is required. Brooks v. Union Pacific R. Co., 620 F.3d 896, 900 (8th Cir.2010). While the plaintiff is obligated to prove some degree of negligence, the question remains whether expert testimony is required in that process. Expert testimony is unnecessary in cases where a layperson can understand what caused the injury. See Wallace v. McGlothan, 606 F.3d 410, 420 (7th Cir.2010). So, for example, when a plaintiff suffers from a broken leg or a gash when hit by a vehicle, he doesn’t need to produce expert testimony. See Moody v. Maine Cent. R.R. Co., 823 F.2d 693, 695 (1st Cir.1987). But when there is no obvious origin to an injury and it has “multiple potential etiologies, expert testimony is necessary to establish causation.” Wills v. Amerada Hess Corp., 379 F.3d 32, 46-47 (2d Cir.2004); accord Claar, 29 F.3d at 504 (noting “expert testimony is necessary to establish even that small quantum of causation required by FELA”). Here, neither Myers nor his physicians could point to a specific injury or moment that brought on the problems with his knee, elbow, and back and neck. Instead, Myers claims that they are the product of years of working for the Railroad. That type of gradual deterioration is precisely what defines cumulative trauma injuries: “Cumulative trauma disorder refers not to one specific injury, but to numerous disorders caused by the performance of repetitive work over a long period of time.” Gutierrez, 106 F.3d at 685-86. They are simply “wear and tear” on the" }, { "docid": "9051939", "title": "", "text": "caused the renewed symptoms in August. The judge found this unacceptable, and that was not an abuse of discretion. See Brown v. Burlington N. Santa Fe Ry. Co. , 765 F.3d 765, 773-74 (7th Cir. 2014) (faulting an expert's differential etiology not just for failing to \"rule in\" the alleged cause but also for failing to \"rule out\" other potential causes). As to relevance, only one of the opinions Dr. Mejia gave at his deposition is even probative of causation: his testimony that the pain may have resurfaced in August because the pain-relief injection Kopplin received often wears off. That is, Dr. Mejia had one theory for how the January injury could have had long-term effects. Even that is a partial theory because he admitted that he did not know whether throwing the switch could have caused the January injury in the first place. He testified that it would be \"speculation\" to say one way or another. Because Dr. Mejia's opinion is only marginally relevant, there is little reason to think that his testimony would be helpful to the trier of fact. Kopplin has two final objections. First, he argues that even without the affidavit and despite all the problems with Dr. Mejia's deposition testimony, he should prevail because the injury's origin is obvious. It is true that we do not require expert testimony when causation is so clear that \"a layperson can understand what caused the injury.\" Myers v. Ill. Cent. R.R. Co ., 629 F.3d 639, 643 (7th Cir. 2010). For example, a pedestrian hit by a truck would generally not need an expert to prove the cause of his broken leg. See id. But this case is much different. There are several steps between Kopplin's effort to fix the switch and his long-term disability, and none is clear. For instance, take the fact that the injury resurfaced when Kopplin attempted to hold his son while riding a lawnmower. To put it mildly, we are skeptical that the average layperson knows whether operating heavy machinery one-handed can contribute to medial and lateral epicondylitis. And because it would not" }, { "docid": "17834960", "title": "", "text": "of impartial judgment might reach different conclusions, opposed to the motion for directed verdict. A mere scintilla of evidence cannot present a question for the jury. There must be a conflict in substantial evidence to create a jury question. Id. This case presents a typical jury question of how to determine what caused an injury and whether that cause was a defective product. Reviewing the motion for directed verdict made at trial leads us to conclude that Robins is arguing that there was a lack of substantial evidence. Robins claims that the jury could find causation only through speculation. Robins’ position is that the plaintiff’s theory of defect centered on the claim that the plastic sheath surrounding the tailstring of the Shield would break and thereby permit bacteria to travel up the tailstring and infect the person wearing the Shield. The plaintiff, however, failed to prove that her sheath was broken and evidence introduced to support the possibility that this might occur indicated that most of the sheaths showed no breaks. The jury was therefore, according to Robins, left without proof that it was more likely than not that the plaintiff’s theory of defect accurately presented the cause of Ms. Worsham’s infection. Robins claims that the plaintiff could not and did not refute possible alternative causes. Evidence was presented by plaintiff and defendant that the annual incidence rate of PID in women who do not wear IUDs was 2-3%. Robins also put on evidence through its expert witness that approximately 85% of pelvic infections are in women who do not wear IUDs. Throughout the trial, Robins offered alternative causation theories. For example, Robins argued that the plaintiff could be among the group of women who would have gotten a pelvic infection regardless of the presence of an IUD. The company also offered testimony positing that sexual transmission of the bacteria, exposure to gonorrhea, and appendicitis were likely causes of Ms. Worsham’s infection. In response, the plaintiff presented a theory of defect, that a characteristic of the product resulted in the injury suffered, and offered specific evidence to disprove alternative causation." }, { "docid": "12216892", "title": "", "text": "is not within the understanding of a lay person. Daub v. Daub, 629 N.E.2d 873, 878 (Ind.Ct.App.1994) (requiring expert testimony on issue of cause outside understanding of lay person); Owens v. Ford Motor Co., 297 F.Supp.2d 1099, 1103-04 (S.D.Ind.2003) (requiring expert testimony where existence of a defect depends on matters beyond understanding of lay person). The Piltches invoke both design defect and manufacturing defect theories in their suit. Cook v. Ford Motor Co., 913 N.E.2d 311, 819 (Ind.Ct.App.2009) (“A product may be defective within the meaning of the [Indiana Product Liability] Act because of a manufacturing flaw, a design defect, or a failure to warn of dangers in the product’s use.”). To demonstrate a design defect under Indiana law, “the plaintiff must compare the costs and benefits of alternative designs” and “show that another design not only could have prevented the injury but also was cost-effective under general negligence principles.” Pries v. Honda Motor Co., 31 F.3d 543, 545—46 (7th Cir.1994). Here, not only did the Piltches fail to produce alternative air bag designs, but they also failed to introduce expert testimony on the question of design defect. Without expert testimony, a lay jury would be unable to compare the costs and benefits of supposed alternative air bag designs with the Mountaineer’s actual air bag design. See Whitted v. General Motors Corp., 58 F.3d 1200, 1206 (7th Cir.1995) (affirming summary judgment where plaintiffs failed to present evidence of design defect and that an alternative design was cost effective). See also Hathaway, 903 F.Supp.2d at 675 (granting summary judgment against plaintiff’s design defect claim where plaintiff submitted no evidence indicating cost effectiveness of alternative design). Similarly, a lay jury would be unable to discern from circumstantial evidence whether another air bag design could have prevented the injury. Thus, without expert testimony, the Piltch-es’ design defect claim cannot survive summary judgment. The Piltches’ manufacturing defect claim fares no better. To demonstrate a manufacturing defect, the plaintiff must show that “the product ... deviates from its intended design.” Id. at 673 (applying Indiana law and citing Restatement (Third) of Torts: Products Liability §" }, { "docid": "12216893", "title": "", "text": "they also failed to introduce expert testimony on the question of design defect. Without expert testimony, a lay jury would be unable to compare the costs and benefits of supposed alternative air bag designs with the Mountaineer’s actual air bag design. See Whitted v. General Motors Corp., 58 F.3d 1200, 1206 (7th Cir.1995) (affirming summary judgment where plaintiffs failed to present evidence of design defect and that an alternative design was cost effective). See also Hathaway, 903 F.Supp.2d at 675 (granting summary judgment against plaintiff’s design defect claim where plaintiff submitted no evidence indicating cost effectiveness of alternative design). Similarly, a lay jury would be unable to discern from circumstantial evidence whether another air bag design could have prevented the injury. Thus, without expert testimony, the Piltch-es’ design defect claim cannot survive summary judgment. The Piltches’ manufacturing defect claim fares no better. To demonstrate a manufacturing defect, the plaintiff must show that “the product ... deviates from its intended design.” Id. at 673 (applying Indiana law and citing Restatement (Third) of Torts: Products Liability § 2(a) (1988)). The Piltches contend that the Mountaineer’s owner’s manual establishes the intended design of the air bags, and that the state of the air bags during and after the 2007 collision indicates a departure from that intended design. Citing Cansler v. Mills, 765 N.E.2d 698 (Ind.Ct.App.2002), the Piltches argue that this evidence, taken together, raises a genuine issue of material fact as to defect even in the absence of expert testimony. In Cansler, the court found that the plaintiff designated sufficient circumstantial evidence on the issue of whether the air bags in question were defective, rendering expert testimony unnecessary to create a triable issue of fact. Id. at 706-07. The circumstantial evidence included the plaintiffs testimony about the speed of the car just before the collision and a mechanic’s testimony about the damage to the vehicle after the collision. Id. at 706. Though not an expert, the mechanic was deemed a “skilled witness” who could testify to opinions or inferences based on facts within his personal knowledge, in addition to his observations. Id. at" }, { "docid": "7265820", "title": "", "text": "not sufficient. See, e.g., Tampa Electric Co. v. Jones, 138 Fla. 746, 190 So. 26 (1939); Gooding v. University Hosp. Bldg., Inc., 445 So.2d 1015 (Fla.1984); Greene v. Flewelling, 366 So.2d 777 (Fla. 2d DCA 1978), cert. denied, 374 So.2d 99 (Fla.1979); Heyman v. United States, 506 F.Supp. 1145 (S.D.Fla.1981). Two Eleventh Circuit cases illustrate how a plaintiff in a case with difficult medical issues may meet her burden of proof with respect to causation through expert testimony. In Worsham v. A.H. Robins Co., 734 F.2d 676 (11th Cir.1984), plaintiff user of an intrauterine contraceptive device brought a products liability suit against the manufacturer for damages for a serious illness resulting from an infection she contracted while wearing the device and for her subsequent loss of fertility. The United States District Court for the Southern District of Florida entered final judgment reflecting a remittitur that reduced compensatory damages to $950,000 and punitive damages to $500,000. The Eleventh Circuit affirmed. In Worsham, defendant manufacturer argued that the jury could find causation only through speculation. Because the intrauterine device (IUD) she had worn had been discarded at the hospital at the time of her hysterectomy, plaintiff could not introduce it as evidence. However, plaintiff presented expert testimony that the theory of defect she argued was the cause of her infection and that the alternative causes offered by defendant manufacturer were highly unlikely. Defendant manufacturer claimed that plaintiff had failed to prove that her device was broken; that evidence introduced to support the possibility that breaks might occur in the devices showed that most of the devices had no breaks; and that plaintiff could not and did not refute possible alternative causes. Defendant manufacturer presented statistical evidence through expert witnesses that the annual incidence rate of pelvic inflammatory disease in women who do not wear IUD’s was 2-3%, and that approximately 85% of pelvic infections are in women who do not wear IUD’s. In answer to defendant manufacturer’s claims, the Eleventh Circuit stated: “What a review of the evidence reveals is that the jury was presented with a battle of experts on the" }, { "docid": "12216897", "title": "", "text": "summary judgment. The Piltches allege a “crashworthiness” case. The crashworthiness doctrine expands the proximate cause element, see Barnard v. Saturn Corp., 790 N.E.2d 1023, 1032 (Ind.Ct.App.2003), and imposes liability for design defects that enhance injuries from a collision, but did not cause the collision in the first place. See Whitted, 58 F.3d at 1205; Montgomery Ward & Co. v. Gregg, 554 N.E.2d 1145, 1154 (Ind.Ct.App.1990). The plaintiffs burden of proof for an enhancement injury claim is as follows: First, the plaintiff must prove that the manufacturer placed into the stream of commerce a defectively designed, unreasonably dangerous product. Second, the plaintiff must prove that a feasible safer alternative product design existed. Third, the plaintiff must prove that after the original impact or collision the defectively designed product proximately caused (i.e., enhanced) the injuries that resulted. Barnard, 790 N.E.2d at 1032 (citation omitted). As discussed above, the Piltches cannot establish the existence of a defect without expert testimony. Because they cannot establish a defect, they cannot meet their burden of proof for an enhanced injury claim and we need not discuss whether they are able to establish proximate cause through their presented circumstantial evidence. However, even if the Piltches established a design defect, under the facts of this case, without expert testimony, a lay juror could not distinguish between the injuries caused by the collision and the enhanced injuries caused by the air bags’ failure to deploy without engaging in pure speculation. The same would be true even if the Piltches had offered evidence of a manufacturing defect. See U-Haul Int’l, Inc. v. Nulls Mach. & Mfg. Shop, 736 N.E.2d 271, 285 (Ind.Ct.App.2000) (affirming summary judgment in manufacturing defect case where plaintiff provided no expert opinion sufficient to present a question of fact with respect to proximate cause). In sum, the Piltches ask the court to find their own testimony combined with the manual’s instruction sufficient to permit an inference of defect and of proximate cause. But it is not — without expert testimony, a jury would only be able to speculate as to the viability of the Piltches’ IPLA claims." }, { "docid": "17834961", "title": "", "text": "according to Robins, left without proof that it was more likely than not that the plaintiff’s theory of defect accurately presented the cause of Ms. Worsham’s infection. Robins claims that the plaintiff could not and did not refute possible alternative causes. Evidence was presented by plaintiff and defendant that the annual incidence rate of PID in women who do not wear IUDs was 2-3%. Robins also put on evidence through its expert witness that approximately 85% of pelvic infections are in women who do not wear IUDs. Throughout the trial, Robins offered alternative causation theories. For example, Robins argued that the plaintiff could be among the group of women who would have gotten a pelvic infection regardless of the presence of an IUD. The company also offered testimony positing that sexual transmission of the bacteria, exposure to gonorrhea, and appendicitis were likely causes of Ms. Worsham’s infection. In response, the plaintiff presented a theory of defect, that a characteristic of the product resulted in the injury suffered, and offered specific evidence to disprove alternative causation. According to the plaintiff, the Daikon Shield tailstring was defective because of the design of the tailstring. Evidence was introduced which argued that the tailstring sheath had a tendency to crack and to deteriorate over a period of time in the body. Evidence was adduced which showed that the multifilament fibers in the suture would wick (carry) fluids. According to the plaintiff’s theory of defect, a break in sheath would allow bacteria to travel through the tailstring into the uterus thereby causing infection. Plaintiff then presented evidence that these defects, rather than alternatives, caused her injury. One expert negated all possible causes of tubo-ovarian abscess with respect to the plaintiff’s case and testified that there was an association be tween the use of IUDs and this severe form of infection. That same expert and another testified that the theory of defect argued by the plaintiff was the cause of the infection. Evidence was introduced that the bacteria found in Ms. Worsham was similar to that found in the tailstrings of Daikon Shields which had breaks" }, { "docid": "12216898", "title": "", "text": "and we need not discuss whether they are able to establish proximate cause through their presented circumstantial evidence. However, even if the Piltches established a design defect, under the facts of this case, without expert testimony, a lay juror could not distinguish between the injuries caused by the collision and the enhanced injuries caused by the air bags’ failure to deploy without engaging in pure speculation. The same would be true even if the Piltches had offered evidence of a manufacturing defect. See U-Haul Int’l, Inc. v. Nulls Mach. & Mfg. Shop, 736 N.E.2d 271, 285 (Ind.Ct.App.2000) (affirming summary judgment in manufacturing defect case where plaintiff provided no expert opinion sufficient to present a question of fact with respect to proximate cause). In sum, the Piltches ask the court to find their own testimony combined with the manual’s instruction sufficient to permit an inference of defect and of proximate cause. But it is not — without expert testimony, a jury would only be able to speculate as to the viability of the Piltches’ IPLA claims. B. Res ipsa loquitur To bring a claim under the doctrine of res ipsa loquitur, a plaintiff must show that the occurrence is “one which in the ordinary course of business does not happen if those who control the circumstances use proper care.” Gary Cmty. Sch. Corp. v. Lardydell, 8 N.E.3d 241, 247 (Ind.Ct.App.2014). A plaintiff must also show that the injuring instrumentality was in the exclusive control of the defendant at the time of injury. Whit-ted, 58 F.3d at 1207. The doctrine of res ipsa loquitur may be applied in the “rare instances” in which “circumstantial evidence may produce reasonable inferences upon which a jury may reasonably find that a defendant manufactured a product containing a defect.” Id. at 1208. In Whitted, we held that the plaintiff, suing over an allegedly defective seat belt, “did not present enough evidence to establish that Defendants retained control or dominion over the seat belt — that is, that six years of invariable use did not disturb Defendants’ influence or authority over the product.” Id. Although the plaintiff" }, { "docid": "17834995", "title": "", "text": "evidence and properly changed the special interrogatory in the verdict form to conform to the jury instructions. Accordingly, the judgment of the district court is AFFIRMED. . The fourth claim was that even if the Daikon Shield was not defective, and therefore not more dangerous than other IUDs sold in the same period, A.H. Robins was liable for failing to warn that wearers of IUDs were at greater risk of contracting PID than women not wearing IUDs. Since the jury found that there was a defective product, a requirement for liability on the first three claims, it was not required to reach a verdict on this fourth claim. Robins contends that by submitting this fourth claim the plaintiff conceded that it did not have enough evidence to prove a defect in the product. Actually, the fourth claim stands, as the verdict form makes clear, as an alternative theory of liability. The position taken by the plaintiff was that even if the jury found that the Shield was not defective it could still return a verdict for Ms. Worsham. . The plaintiff's chief expert on defect testified that he had done a study on about 600 Daikon Shield tailstrings. The tailstrings came from Daikon Shields which had been worn (there was no evidence about how long the Daikon Shields had been in place). In that study, the doctor found breaks in 4% of the black sheaths surrounding the tailstrings and in 13% of those with transparent sheaths. Robins also elicited admissions on cross-examination. Robins points to these results and testimony, that some of the samples might have been broken in the removal from the women, as proof that the likelihood that the sheath on the plaintiffs tailstring was cracked was negligible. One could also conclude from the evidence that the sheaths did have a propensity to break. . No evidence was adduced on the incidence rate of tubo-ovarian abscess, the more severe form of PID and the type of injury suffered by the plaintiff, in women who wear or who do not wear IUDs. . In Greco, there was such positive" }, { "docid": "12216888", "title": "", "text": "or after the accident. As a result of the accident, Mr. Piltch broke several vertebrae and Mrs. Piltch sustained neurological injuries. After this crash, the Piltches had their Mountaineer repaired at the same shop that had repaired the car after the 2006 accident. In 2009, the Piltches sold the Mountaineer. The buyer happened to be a mechanic who reprogrammed the vehicle’s blackbox, wiping any data that might remain from either crash. In February 2010, the Piltches sued Ford in federal court, alleging the Mountaineer’s air bags were defective and enhanced the injuries they suffered as a result of the 2007 accident. ' Due to a deficient jurisdictional statement, the court dismissed the complaint without prejudice. The Piltches again filed suit in December 2010, this time in state court, and Ford removed the case to federal court. During discovery, the Piltches never served any expert reports, despite obtaining an extension of the expert-disclosure deadline. Ford moved for summary judgment in November 2011, arguing that the Piltches could not prove a prima facie case of design or manufacturing defect without expert testimony, nor could they prove their injuries were more severe than they would have been without the alleged defect. In response, the Piltches argued they did not need an expert. They asserted that their circumstantial evidence, namely the Mountaineer’s owner’s manual and Mr. Piltch’s testimony, created genuine issues of fact as to defect and proximate cause. The Piltches also argued that the jury could infer a defect under the doctrine of res ipsa loquitur. The district court granted Ford’s motion for summary judgment on all claims. Specifically, the court held that the Piltches’ circumstantial evidence was insufficient to go beyond speculation and create a legal inference as to proximate cause. As to res ipsa loquitur, the court held that the Piltches’ circumstantial evidence was not enough to negate all possible causes other than defect for the air bags’ failure to inflate. This appeal followed. II. DISCUSSION We review a district court’s grant of summary judgment de novo in the light most favorable to the non-moving party. Ellis v. DHL Express Inc.," }, { "docid": "12216895", "title": "", "text": "703-04 (defining a “skilled witness” as “a person with ‘a degree of knowledge short of that sufficient to be declared an expert ... but somewhat beyond that possessed by the ordinary jurors.’ ” Mariscal v. State, 687 N.E.2d 378, 380 (Ind.Ct.App.1997)). The mechanic testified that he had almost two decades of experience examining automobile wrecks with deployed air bags. Cansler, 765 N.E.2d at 702. After examining the plaintiffs car three to four days after the accident, he opined that “based on his observations of other vehicles that had been in accidents severe enough to cause front frame damage [like the plaintiffs], the air bag in [the plaintiffs] Corvette should have deployed.” Id. The plaintiff also presented the car’s owner’s manual, which detailed the conditions that would warrant air bag deployment, including the threshold velocity of impact that would trigger deployment. The Piltches’ circumstantial evidence is not analogous to that in Cansler. Most notably, the Piltches do not provide testimony about the accident other than their own. We also do not have testimony on the state of the car following the collision. This is especially problematic considering the Piltches preserved neither the Mountaineer nor, critically, the Mountaineer’s blackbox, which could have contained details about the crash. Without this information, and without an accident reconstruction expert or otherwise “skilled witness” to fill in some of these blanks, a lay person would be unable to discern whether the circumstances of the crash should have triggered air bag deployment or not. Furthermore, the presentation of the Mountaineer’s owner’s manual does nothing to elevate this evidence out of the realm of speculation. Unlike the manual in Cansler, the conditions for air bag deployment in the Mountaineer’s manual are written in broad generalities. The manual merely states that the air bags are designed to activate when the vehicle sustains sufficient longitudinal deceleration. However, it neither defines “sufficient,” nor specifies the precise impact speeds at which the air bags are expected to deploy. Finally, in addition to showing a defect, both theories of liability require a showing that the defect proximately caused the Piltches’ injuries to survive" }, { "docid": "12216889", "title": "", "text": "manufacturing defect without expert testimony, nor could they prove their injuries were more severe than they would have been without the alleged defect. In response, the Piltches argued they did not need an expert. They asserted that their circumstantial evidence, namely the Mountaineer’s owner’s manual and Mr. Piltch’s testimony, created genuine issues of fact as to defect and proximate cause. The Piltches also argued that the jury could infer a defect under the doctrine of res ipsa loquitur. The district court granted Ford’s motion for summary judgment on all claims. Specifically, the court held that the Piltches’ circumstantial evidence was insufficient to go beyond speculation and create a legal inference as to proximate cause. As to res ipsa loquitur, the court held that the Piltches’ circumstantial evidence was not enough to negate all possible causes other than defect for the air bags’ failure to inflate. This appeal followed. II. DISCUSSION We review a district court’s grant of summary judgment de novo in the light most favorable to the non-moving party. Ellis v. DHL Express Inc., 633 F.3d 522, 525 (7th Cir.2011). Summary judgment is only appropriate if there is no genuine issue of material fact. Id. The Piltches present four issues on appeal; the first three can be addressed in a single discussion as to whether the circumstantial evidence, without support from expert testimony, creates a genuine issue of material'fact for their claims under the IPLA. • We will separately address the fourth issue of res ipsa loquitur. A. Expert Testimony Because we are sitting in diversity, Indiana law applies. See Erie R.R. Co. v. Tompkins, 304 U.S. 64, 58 S,.Ct. 817, 82 L.Ed. 1188 (1938) (holding a federal court sitting in diversity must apply the substantive law of the state in which it sits). The IPLA governs all actions brought by a user or consumer against a manufacturer for physical harm caused by a product, regardless of the legal theory upon which the action is brought. See Ind.Code § 34-20-1-1. Under the IPLA, the plaintiff must establish that “(1) he or she was harmed by a product; (2) the" }, { "docid": "12216896", "title": "", "text": "of the car following the collision. This is especially problematic considering the Piltches preserved neither the Mountaineer nor, critically, the Mountaineer’s blackbox, which could have contained details about the crash. Without this information, and without an accident reconstruction expert or otherwise “skilled witness” to fill in some of these blanks, a lay person would be unable to discern whether the circumstances of the crash should have triggered air bag deployment or not. Furthermore, the presentation of the Mountaineer’s owner’s manual does nothing to elevate this evidence out of the realm of speculation. Unlike the manual in Cansler, the conditions for air bag deployment in the Mountaineer’s manual are written in broad generalities. The manual merely states that the air bags are designed to activate when the vehicle sustains sufficient longitudinal deceleration. However, it neither defines “sufficient,” nor specifies the precise impact speeds at which the air bags are expected to deploy. Finally, in addition to showing a defect, both theories of liability require a showing that the defect proximately caused the Piltches’ injuries to survive summary judgment. The Piltches allege a “crashworthiness” case. The crashworthiness doctrine expands the proximate cause element, see Barnard v. Saturn Corp., 790 N.E.2d 1023, 1032 (Ind.Ct.App.2003), and imposes liability for design defects that enhance injuries from a collision, but did not cause the collision in the first place. See Whitted, 58 F.3d at 1205; Montgomery Ward & Co. v. Gregg, 554 N.E.2d 1145, 1154 (Ind.Ct.App.1990). The plaintiffs burden of proof for an enhancement injury claim is as follows: First, the plaintiff must prove that the manufacturer placed into the stream of commerce a defectively designed, unreasonably dangerous product. Second, the plaintiff must prove that a feasible safer alternative product design existed. Third, the plaintiff must prove that after the original impact or collision the defectively designed product proximately caused (i.e., enhanced) the injuries that resulted. Barnard, 790 N.E.2d at 1032 (citation omitted). As discussed above, the Piltches cannot establish the existence of a defect without expert testimony. Because they cannot establish a defect, they cannot meet their burden of proof for an enhanced injury claim" }, { "docid": "12216891", "title": "", "text": "product was sold ‘in a defective condition unreasonably dangerous to any user or consumer’; (3) the plaintiff was a foreseeable user or consumer; (4) the defendant was in the business of selling the product; and (5) the product reached the consumer or user in the condition it was sold.” Bourne v. Marty Gilman, Inc., 452 F.3d 632, 635 (7th Cir.2006) (referencing Ind.Code § 34-20-2-1). A plaintiff can satisfy the second element by showing a design defect, a manufacturing defect, or a failure to warn. Hathaway v. Cintas Corp. Serv., Inc., 903 F.Supp.2d 669, 673 (N.D.Ind.2012). See also Natural Gas Odorizing, Inc. v. Downs, 685 N.E.2d 155, 161 (Ind.Ct.App.1997). A plaintiff is also required to prove that his injuries were proximately caused by the defect (in the cases of manufacturing defect and failure to warn) or breach of duty (in the case of design defect). See Ford Motor Co. v. Rushford, 868 N.E.2d 806, 810 (Ind.2007): Finally, and particularly pertinent to the issues raised on appeal, expert testimony on an issue is required when the issue is not within the understanding of a lay person. Daub v. Daub, 629 N.E.2d 873, 878 (Ind.Ct.App.1994) (requiring expert testimony on issue of cause outside understanding of lay person); Owens v. Ford Motor Co., 297 F.Supp.2d 1099, 1103-04 (S.D.Ind.2003) (requiring expert testimony where existence of a defect depends on matters beyond understanding of lay person). The Piltches invoke both design defect and manufacturing defect theories in their suit. Cook v. Ford Motor Co., 913 N.E.2d 311, 819 (Ind.Ct.App.2009) (“A product may be defective within the meaning of the [Indiana Product Liability] Act because of a manufacturing flaw, a design defect, or a failure to warn of dangers in the product’s use.”). To demonstrate a design defect under Indiana law, “the plaintiff must compare the costs and benefits of alternative designs” and “show that another design not only could have prevented the injury but also was cost-effective under general negligence principles.” Pries v. Honda Motor Co., 31 F.3d 543, 545—46 (7th Cir.1994). Here, not only did the Piltches fail to produce alternative air bag designs, but" }, { "docid": "17834996", "title": "", "text": "for Ms. Worsham. . The plaintiff's chief expert on defect testified that he had done a study on about 600 Daikon Shield tailstrings. The tailstrings came from Daikon Shields which had been worn (there was no evidence about how long the Daikon Shields had been in place). In that study, the doctor found breaks in 4% of the black sheaths surrounding the tailstrings and in 13% of those with transparent sheaths. Robins also elicited admissions on cross-examination. Robins points to these results and testimony, that some of the samples might have been broken in the removal from the women, as proof that the likelihood that the sheath on the plaintiffs tailstring was cracked was negligible. One could also conclude from the evidence that the sheaths did have a propensity to break. . No evidence was adduced on the incidence rate of tubo-ovarian abscess, the more severe form of PID and the type of injury suffered by the plaintiff, in women who wear or who do not wear IUDs. . In Greco, there was such positive proof. Plaintiff was working with an automated machine that lowered and cut off his fingers when it should have lifted in its automated movement. Thus, malfunction equated to defect in the machine. . P. Sherman, Products Liability 325 (1981); Rheingold, Proof of Defect in Product Liability Cases, 38 Tenn.L.Rev. 325, 327-39 (1971). . The jury instructions given on Claims 2 and 3 relating to the standard of care were as follows: Claim 2: First, you cannot consider the claim for negligence in design and manufacture, unless you first determine that the product was defective. If you determine that the Daikon Shield was defective, you must then consider Sharon Worsham’s claim that A.H. Robins was negligent in its design and manufacture. Negligence means the failure to do an act which a reasonably prudent pharmaceutical company would do, or the doing of an act which a reasonably prudent pharmaceutical company would not do under the same or similar circumstances, to protect users of its product from bodily injury. Reasonable care is that degree of care which a" }, { "docid": "9051940", "title": "", "text": "be helpful to the trier of fact. Kopplin has two final objections. First, he argues that even without the affidavit and despite all the problems with Dr. Mejia's deposition testimony, he should prevail because the injury's origin is obvious. It is true that we do not require expert testimony when causation is so clear that \"a layperson can understand what caused the injury.\" Myers v. Ill. Cent. R.R. Co ., 629 F.3d 639, 643 (7th Cir. 2010). For example, a pedestrian hit by a truck would generally not need an expert to prove the cause of his broken leg. See id. But this case is much different. There are several steps between Kopplin's effort to fix the switch and his long-term disability, and none is clear. For instance, take the fact that the injury resurfaced when Kopplin attempted to hold his son while riding a lawnmower. To put it mildly, we are skeptical that the average layperson knows whether operating heavy machinery one-handed can contribute to medial and lateral epicondylitis. And because it would not be obvious to a layperson, expert testimony was indeed necessary. Second, Kopplin insists that his claims should survive because Wisconsin Central's expert Dr. Jan Bax noted in a report that \"Mr. Kopplin sustained a work-related strain to his left-elbow on January 14.\" But that one stray line does very little work. To start, the report never says that the broken switch caused the injury. It says only that the injury was \"work-related,\" which could refer to a number of different things. The report also oddly says the injury began on January 14, ten days before Kopplin operated the broken switch. Moreover, Dr. Bax faces many of the same problems as Dr. Mejia-namely, that there is no evidence he considered whether other factors may have caused the injury. In fact, there is no evidence at all that Dr. Bax's testimony would have been admissible under Daubert . Perhaps the greatest flaw is that he never said a word about the reemergence of the injury in August. One way or another, Kopplin still needs admissible expert testimony" }, { "docid": "7265821", "title": "", "text": "intrauterine device (IUD) she had worn had been discarded at the hospital at the time of her hysterectomy, plaintiff could not introduce it as evidence. However, plaintiff presented expert testimony that the theory of defect she argued was the cause of her infection and that the alternative causes offered by defendant manufacturer were highly unlikely. Defendant manufacturer claimed that plaintiff had failed to prove that her device was broken; that evidence introduced to support the possibility that breaks might occur in the devices showed that most of the devices had no breaks; and that plaintiff could not and did not refute possible alternative causes. Defendant manufacturer presented statistical evidence through expert witnesses that the annual incidence rate of pelvic inflammatory disease in women who do not wear IUD’s was 2-3%, and that approximately 85% of pelvic infections are in women who do not wear IUD’s. In answer to defendant manufacturer’s claims, the Eleventh Circuit stated: “What a review of the evidence reveals is that the jury was presented with a battle of experts on the question of causation.” Worsham, 734 F.2d at 682. Moreover, “As Boeing teaches us, ‘it is the function of the jury as the traditional finder of facts, and not the Court, to weigh conflicting evidence and inferences, and determine the credibility of witnesses.’ ” Id. (quoting Boeing, 411 F.2d at 375). The Eleventh Circuit then concluded that “A thorough review of the evidence presented at trial reveals that both sides presented substantial evidence on the question of causation. A jury question was, therefore, created on whether the Daikon Shield [IUD] was defective.” Worsham, 734 F.2d at 682. In Wells v. Ortho Pharmaceutical Corp., 788 F.2d 741 (11th Cir.), cert. denied, 479 U.S. 950, 107 S.Ct. 437, 93 L.Ed.2d 386 (1986), an infant and her parents brought suit against the manufacturer of a spermicide, which allegedly caused infant plaintiff to be born with birth defects. The parties waived a jury. The district court awarded $5.1 million to plaintiffs. The Eleventh Circuit affirmed with respect to defendant manufacturer’s liability, but modified the amount of damages to $4.7 million." } ]

[ { "docid": "22449368", "title": "", "text": "the previous contract because of his own failure formally to ratify it is not only inconsistent ■ with his own actions; it is without legal substance as well. There is nothing in the Act which compels the conclusion that collective bargaining contracts must be formally attested by the parties; rather, § 8(d), codifying the rule of H. J. Heinz Co. v. N. L. R. B., 311 U.S. 514, 61 S.Ct. 320, 85 L.Ed. 309, specifically provides for a written agreement “if requested by either party” —'dear evidence that a writing is not mandatory as a matter of law. Hamilton Foundry & Machine Co. v. International Molders & Foundry Workers, 6 Cir., 193 F.2d 209, 214. Rabouin’s failure to sign the contract during his compliance with it thus cannot affect the Board’s conclusion that he was bound by its closed-shop provisions; any other result would force the give-and-take reality of labor relations into a strait-jacket of lawyers’ technicalities. But petitioner also alleges the invalidity of the 1946 Contract as to him on the ground that the New York Statute of. Frauds, N.Y.Personal Property Law, McK.Consol.Laws, c. 41, § 31, voids all agreements not to be performed within one year which are not signed by the party to be charged. The contention can have no weight; the vagaries of state rules of law may not override provisions of a federal act geared to the effectuation of an important national labor policy. Hill v. State of Florida ex rel. Watson, Atty. Gen., 325 U.S. 538, 65 S.Ct. 1373, 89 L.Ed. 1782; N. L. R. B. v. Hearst Publications, 322 U.S. 111, 123, 64 S.Ct. 851, 88 L.Ed. 1170. A state statute of frauds, no' matter what its wording, cannot transform into an unfair labor practice activity under the Act otherwise validated by a binding oral contract between employer and union. Cf. Hamilton Foundry & Machine Co. v. International Molders & Foundry Workers, supra, 193 F.2d at page 215. Moreover, even under the provisions of the New York statute, the contract is merely rendered unenforceable in an affirmative action; it may nonetheless be used," } ]

[ { "docid": "11620823", "title": "", "text": "and the parties cannot be expected to foresee all the problems that will develop in an industrial establishment within the period of the contract and more scope must be left for decisions made in the course of performing the agreement. The parties to the collective bargaining agreement share a degree of mutual interdependence for the cost of disagreement is great and the pressure to reach agreement is so intense that the parties are willing to contract with the thought in mind of working out the problems of interpreting and amending when the inevitable problems arise. As one commentator has perceptively stated: “Many provisions do little but establish the framework for further bargaining. Others have a generality which obviously looks to joint labor-management participation. Deliberate ambiguities, inadvertent omissions and unforeseen contingencies require continuous rule-making which, passing in the guise of interpretation, parallels the law making of courts and administrative agencies.” The case law is clear that an oral agreement between the parties to a collective bargaining contract may modify, supplement or amend the collective bargaining contract. Roadway Express, Inc. v. General Teamsters Local Union 249, 3 Cir., 1964, 330 F.2d 859; N. L. R. B. v. Local Union 825, Operating Engineers, 3 Cir., 1963, 315 F.2d 695; Rabouin v. N. L. R. B., 2 Cir., 1952, 195 F.2d 906. In support of their position, appellants cite numerous cases which we find inapposite in that they disapprove of side agreements which undermine not only the standards of wages, hours and working conditions but also the status of the national and local unions as bargaining agents. Such an objective is simply not contemplated by the casual agreement in the present case. To the contrary, the district court properly found ample testimony and evidence that agreements concerning the casual drivers were a long existing custom and worked to the benefit of all parties concerned. Local supplements are an inherent part of the concept of national or area collective bargaining, for neither the employers nor local union would engage in the practice of group bargaining if it were so rigid as to preclude adjustments for" }, { "docid": "22687370", "title": "", "text": "for a period of sixty days after such notice is given or until the expiration date of such contract, whichever occurs later: “The duties imposed upon employers, employees, and labor organizations by paragraphs (2) — (4) of this subsection shall become inapplicable upon an intervening certification of the Board, under which the labor organization or individual, which is a party to the contract, has been superseded as or ceased to be the representative of the employees subject to the provisions of section 159 (a) of this title, and the duties so imposed shall not be construed as requiring either party to discuss or agree to any modification of the terms and conditions contained in a contract for a fixed period, if such modification is to become effective before such terms and conditions can be reopened under the provisions of the contract. Any employee who engages in a strike within the sixty-day period specified in this subsection shall lose his status as an employee of the employer engaged in the particular labor dispute, for the purposes of sections 158 to 160 of this title, but such loss of status for such employee shall terminate if and when he is reemployed by such employer.” 29 U. S. C. §158 (d). In coming to a contrary conclusion, the trial examiner mistakenly relied on Brotherhood of Painters, Local Union No. 1S85, 143 N. L. R. B. 678 (1963), where the Board held that a union violated § 8 (d) by refusing to execute a written contract containing a permissive term to which it had previously agreed. “The parties did discuss the provision,” the Board reasoned, “and for us to hold that the Employers in this case may not insist on the inclusion of this provision in their contract would upset, if not undo, the stabilizing effects of the agreement which was reached after several negotiation meetings.” Id., at 680. The union was required to sign the contract at the employers’ request, not because § 8 (d) reaches permissive terms, but because the union’s refusal obstructed execution of an agreement on mandatory terms. Cf. NLRB" }, { "docid": "20575211", "title": "", "text": "performance of an arbitration agreement, defended on the grounds that no contract exists, the court must resolve that issue first, before it can rule on the merits of the claim for specific performance. See Teamsters, etc., Local Union 524 v. Billington, 402 F.2d 510 (9th Cir. 1968); Warrior Constructors, Inc. v. International Union of Operating Engineers, Local Union No. 926, AFL-CIO (C.A. No. 9959, N.D.Ga., February-, 1966) , aff’d 383 F.2d 700 (5th Cir. 1967) . And where an employer sues for injunctive relief against and damages for an allegedly unlawful strike, the court must first decide whether a contract between the parties exists. In many such cases, that issue will be dispositive of the entire case, E. g., Lear Siegler, Inc. v. Inter. Union, United Auto, Aerospace and Agr. Implement Workers of America, UAW, 287 F.Supp. 692 (W.D.Mich.1968). Cf. United Steelworkers of America, AFL-CIO v. O’Neal Steel, Inc., 321 F.Supp. 235 (N.D.Ala.1969), where the union alleged that the employer’s hiring of permanent replacements for striking members violated Section 301. However, where there are no legal grounds for a breach of contract claim, allegations of breach are a legally insufficient peg on which to hang Section 301 jurisdiction. Cf. Ferguson-Steere Motor Co. v. Inter. Broth. of Teamsters, etc., Local 577, 223 F.2d 842 (5th Cir. 1955). A complaint thus stripped of breach of contract allegations in substance alleges that the defendant committed an unfair labor practice. Where an employer and a labor organization have reached agreement, the employer’s refusal, in response to the request of the labor organization, to reduce their agreement to writing and sign it is a refusal to bargain collectively and an unfair labor practice under Section 8(a) (5) of the National Labor Relations Act as amended, 29 U.S.C.A. § 158(a) (5). H. J. Heinz Co. v. N. L. R. B., 311 U.S. 514, 61 S.Ct. 320, 85 L.Ed. 309 (1941); N. L. R. B. v. Dalton Tel. Co., 187 F.2d 811 (5th Cir. 1951). The exclusive remedy for such an unfair labor practice is before the Board. San Diego Building Trades Council, Millmen’s Union, Local 2020" }, { "docid": "21372434", "title": "", "text": "parties involved deal with each other with an open and fair mind and sincerely endeavor to overcome obstacles or difficulties existing between the employer and the employees to the end that employment relations may be stabilized and obstruction to the free flow of commerce prevented.” Judge Garrecht also said: “As we view the statute, it is the obligation of the parties to participate actively in the deliberations so as to indicate a present intention to find a basis for agreement, and a sincere effort must be made to reach a common ground. As was said in N. L. R. B. v. Reed & Prince Mfg. Co., 1 Cir., 118 F.2d 874, 885: ‘The respondent, following the beginning of the strike, was legally bound to confer and negotiate sincerely with the representatives of its employees. It was required to do so with an open mind and a sincere desire to reach an agreement in a spirit of amity and cooperation. The cases setting forth this obligation are many, and it is well settled that a mere formal pretence at collective bargaining with a completely closed mind and without this spirit of co-operation and good faith is not a fulfillment of this duty. [Cases cited.]’ ” See also, N. L. R. B. v. Nesen, 9 Cir., 1954, 211 F.2d 559, 563-64; N. L. R. B. v. Jeffries Banknote Company, 9 Cir., 1960, 281 F.2d 893, 896. Here, the Board could conclude, as it evidently did, that Fenton had authority to tell the union what he did tell it. Surely, both the union and the Board could infer from what he told the union that the employer had in fact agreed to the terms embodied in the contract, and that all that remained to be done was to deliver the contract, signed by the employer. Under the peculiar facts of this case, the employer had an obligation to deliver the signed contract to the union, and its failure to do so sustains the first charge in the complaint, refusal to sign the agreement as reduced to writing. Obviously, here, “signing” must be taken" }, { "docid": "316912", "title": "", "text": "a memorandum of understanding. No such memorandum was entered into. Moreover, the complaint does not ask for damages dating from June 1, but from August 9, 1961, instead. But there were-further meetings and discussions between the parties looking forward to an agreement. On or about June 15, Roadway claims, Local 249 accepted the written agreement as setting forth conditions under which the employees would return to work even though it did not. sign it. Citing H. J. Heinz Co. v. N. L. R. B., 311 U.S. 514, 523-26, 61 S.Ct. 320, 85 L.Ed. 309 (1941), the District Court concludes: “Hence the peculiar characteristics of labor contracts confirm the-genera) rule of contract law that no contract was created under the circumstances of the case at bar in the absence of formal execution.” 211 F.Supp. 796, at p. 798 (W.D.Pa.1962). We do not read the Heinz case as holding that there is no-contract unless there is a formal execution. On the contrary the case stands for the proposition that where a union and an employer reach an agreement concerning working conditions of employees, the employer has a duty to execute a written agreement and he may be required to sign if he refuses after being-requested to do so by the union, and his refusal is an unfair labor practice. So-the fact that the proposed written agreement was not signed did not demonstrate-as a matter of law that there was no contract. See Hamilton Foundry & Machine-Co. v. International Molders & Foundry-Workers Union of North America, 193 F.2d 209, 213-14 (C.A.6, 1962); Rabouin v. N. L. R. B., 195 F.2d 906, 910 (C.A.2, 1952); N. L. R. B. v. Local 825, International Union of Operating Engineers, AFL-CIO, 315 F.2d 695 (C.A.3,. 1963); Standard Oil Co. v. N. L. R. B., 322 F.2d 40 (C.A.6, 1963). A party, who has originally insisted that both parties sign a document before a mutually binding agreement may come into existence, may dispense with that requirement. Section 28A of Williston on Contracts, states in part: “ * * * Parties rarely express a direct intention as to the" }, { "docid": "16081177", "title": "", "text": "two copies, both unsigned. Ogle stated to England that he was glad that his son had made the mistake because now he was not going to sign them. Several subsequent meetings did not produce any change in the positions of the parties. On January 18, 1963 Ogle sent the Union a ten-day notice terminating the interim agreement of July 10, 1962. Ogle testified that this notice was intended to be a total severance of all relations with the Union. Between February 4th and May 20, 1963, the Union sent five written grievances to the respondent by certified mail, all of which were returned unopened. On February 4, 1963, Ogle refused to process a grievance presented by a union committeeman stating, “As far as we are concerned, we have no union.” On this state of the record the hearing ing examiner and the Board found that the respondent violated Section 158(a) (5) and (1), Title 29, U.S.C., by repudiating and refusing to sign a collective bargaining agreement reached earlier, and by refusing to recognize and negotiate with the Union concerning grievances after January 18, 1963. The Board ordered respondent to sign the agreement if requested by the Union, or, if no such request was made, to bargain for a new contract, and to cease and desist from refusing to recognize and deal with the Union with respect to its employees’ grievances. Section 158(a) (5) makes it an unfair labor practice for an employer “to refuse to bargain collectively with the representatives of his employees, * * Section 158(d) states that included within the obligation to bargain collectively is “the execution of a written contract incorporating any agreement reached if requested by either party, * * Failure to execute and sign an agreement incorporating the terms of a negotiated contract is an unfair labor practice. H. J. Heinz Co. v. N.L.R.B., 311 U.S. 514, 61 S.Ct. 320, 85 L.Ed. 309; N.L.R.B. v. Ohio Car & Truck Leasing, Inc., 361 F.2d 404 (C.A. 6); Stack-house Oldsmobile, Inc. v. N.L.R.B., 330 F.2d 559 (C.A. 6); Standard Oil Company v. N.L.R.B., 322 F.2d 40 (C.A." }, { "docid": "12167665", "title": "", "text": "this respect is without substantial support, for no purely contingent wage increase, as such, appears to have been definitely agreed to by the union, though there is some testimony revealing that the union negotiator, Baker, did suggest that if National would grant an immediate wage increase embodying only a portion of the union’s additional 25^ an hour demand, it would agree to make the remainder contingent upon National’s obtaining price relief. In any event, National was not bound at its peril to grant a wage increase. The mere fact that a bona fide impasse in negotiations was reached is no convincing evidence of National’s unlawful refusal to bargain, for Section 8(a) (5) does not require an employer’s involuntary concession on any issue, or retreat from any bargaining position taken in good faith upon penalty of being held guilty of an unfair labor practice. N. L. R. B. v. American National Insurance Co., 343 U.S. 395, 72 S.Ct. 824, 96 L.Ed. 1027, affirming American National Ins. Co. v. N. L. R. B. 5 Cir., 187 F.2d 307; N. L. R. B. v. Corsicana Cotton Mills, 5 Cir., 179 F.2d 234. As this Court recently held in N. L. R. B. v. Mayer, 5 Cir., 196 F.2d 286, 290, “Not capitulation, but bona fide effort, is the criterion.\" See also Texas Foundries v. N. L. R. B., 5 Cir., 211 F.2d 791. Indeed, Section 8(d) of the Act, as amended, specifically provides: “(d) For the purposes of this section, to bargain collectively is the performance of the mutual obligation of the employer and the representative of the employees to meet at reasonable times and confer in good faith with respect to wages, hours, and other terms and conditions of employment, or the negotiation of an agreement, or any question arising thereunder, and the execution of a written contract ineor porating any agreement reached if requested by either party, but such obligation does not compel either party to agree to a proposal or require the making of a concession » * *» We conclude that the Board’s order based on findings that National’s" }, { "docid": "21188002", "title": "", "text": "bargaining representative, the ultimate decisional control over signing the contracts to which they had agreed. On this basis the examiner found that the International and Local 395 had refused to bargain with the Company and had violated Section 8(b) (1) (A) and (3) of the Act. The Board sustained the examiner’s finding of violation by the Unions but disagreed with the reasoning by which he reached his conclusion. The Board concluded that because the Unions knew that withholding of approval by the International and the Council was unrelated to any dissatisfaction with the contract terms themselves but was based upon the unilateral decision to approve no agreement with the Company until negotiations were satisfactorily concluded by another local at the Company’s Toledo unit, the delay was unlawful. The logic of the Board in support of this conclusion is that the Toledo issue was an extraneous matter imposed upon the Company after agreements had been reached at Cleveland and Lima. The conclusion reached by the Board is a legal conclusion based on undisputed facts. We are in accord with this legal conclusion. When the parties reach an agreement they have a duty to execute a written contract. See: H. J. Heinz Co. v. N. L. R. B., 311 U.S. 514, 525-526, 61 S.Ct. 320, 85 L.Ed. 309; N. L. R. B. v. Nesen, 211 F.2d 559, 563, C.A.9, cert. denied 348 U.S. 820, 75 S.Ct. 32, 99 L.Ed. 646; N. L. R. B. v. Jeffries Banknote Co., 281 F.2d 893, C.A.9; N. L. R. B. v. Tower Hosiery Mills, Inc., 180 F.2d 701, 705, C.A.4, cert. denied 340 U.S. 811, 71 S.Ct. 38, 95 L.Ed. 596. In arriving at its conclusion the Board decided the case on a narrower issue than the one advanced by the trial examiner. We do not need to decide in this case that any sort of provision for approval delegated by bargaining representatives to an international union or council is unlawful, nor do we. The Unions cite United States Pipe and Foundry Co. v. N. L. R. B., 298 F.2d 873, C.A.5, cert. denied, 370 U.S." }, { "docid": "21188000", "title": "", "text": "B. v. Deena Artware, Inc., 198 F.2d 645, 651, C.A.6, cert. denied, 345 U.S. 906, 73 S.Ct. 644, 97 L.Ed. 1342, this Court held that employees had a right to choose their own bargaining representatives. N. L. R. B. v. Jones & Laughlin Steel Corp., 301 U.S. 1, 33, 57 S.Ct. 615, 81 L.Ed. 893; N. L. R. B. v. Sunbeam Electric Mfg. Co., 133 F.2d 856, 860, C.A.7; N. L. R. B. v. Blanton Co., 121 F.2d 564, 571, C.A.8; N. L. R. B. v. New Era Die Co., Inc., 118 F.2d 500, 504, C.A.3; N. L. R. B. v. Louisville Refining Co., 102 F.2d 678, 681, C.A.6. If there are unusual or exceptional circumstances management may make a valid objection to some agent or representative presented by the Union for bargaining. N. L. R. B. v. Kentucky Utilities Co., 182 F.2d 810, C.A.6; N. L. R. B. v. Roscoe Skipper, Inc., 213 F.2d 793, C.A.5. We find no unusual or exceptional circumstances here that would warrant the Company’s refusal to bargain. We affirm the Board’s finding that the Company violated Section 8(a) (1) and (5) of the Act and enforcement of that part of the order is decreed. The substance of the charge in the complaint against the International concerning the Lima refinery and in the charges against Local 395 involving Cleveland Nos. 1 and 2 is that, being the exclusive collective bargaining representatives of all of the employees in their respective units, they refused to bargain collectively with the Company by failing to execute a written contract incorporating the agreement reached between the Company and the respective Unions. After agreements had been reached in Cleveland and Lima the Union representatives delayed signing the contracts. It finally became apparent that they would not sign until an agreement was reached at Toledo. This was due to unilateral or internal agreements with the International Union and the Sohio Council. The trial examiner found that the bargaining representatives (the International and Local 395) could not excuse their refusal to execute contracts by ceding to a group or organization, not the statutory" }, { "docid": "20575218", "title": "", "text": "20, 1969, Swift replied, indicating that in his view the parties were still far from agreement on a substantial number of issues. (See Pl.Ex. “D” appended hereto.) At no time was a contract signed by any representative of the union or the company, although it was the intention of both parties throughout the negotiations to have a formal written executed contract. The International Constitution (D.Ex. #1) of the Union in Art. 17 (1) provides that all collective bargaining agreements must be signed by the officers. In this union, all contracts are in the name of the International. However, the local members are, as here, consulted about the terms. At no time was any proposal ratified by a vote of the local membership in a meeting called for such purpose or by the company’s Board of Directors. On October 28th, the union distributed a leaflet (D.Ex. #2) calling on the company to fulfill its duty to negotiate. On November 4, Kocher replied to Swift (D.Ex. #3). Nothing further occurred until this suit was filed on November 26, 1969. On or about December 20th, the company received a petition from 93 of its workers calling for a new election (D.Ex. #4). APPLICABLE LAW While “federal law” controls, the specific law governing the formation and existence of a collective bargaining agreement ordinarily consists of the normal contract rules of offer, acceptance, and intent. See Dowd Box Co. v. Courtney, 368 U.S. 502, 82 S.Ct. 519, 7 L.Ed.2d 483 (1962); Warrior Constructors, Inc. v. International Union of Operating Engineers, Local Union No. 926, 383 F.2d 700, 708 (5th Cir. 1967); Genesco, Inc. v. Joint Council 13, United Shoe Workers, 341 F.2d 482 (2d Cir. 1965); F. W. Means & Co. v. N. L. R. B., 377 F.2d 683, 686 (7th Cir. 1967); Lozano Enterprises v. N. L. R. B., 327 F.2d 814, 819 (9th Cir. 1964); United Steelworkers of America, AFL-CIO v. O’Neal Steel, Inc., 321 F.Supp. 235 (N.D.Ala. 1969); Teamsters v. Clearfield Cheese Co., 64 LRRM 2748, 2750 (W.D.Pa. 1967). Of course, the absence of an executed contract is not always dispositive of" }, { "docid": "20575222", "title": "", "text": "§ 30, p. 47 (1952). This rule has been applied specifically to collective bargaining agreements by the Fifth Circuit Court of Appeals. Warrior Constructors, Inc. v. International Union of Operating Engineers, Local Union No. 926, 383 F.2d 700, 708 (5th Cir. 1967). The Court of Appeals there held that the intention of the parties governs whether a contract takes effect before a contemplated writing is executed. In view of (1) the doubtful enforceability of oral contracts intended to last longer than one year, (2) the importance national labor policy attaches to written, signed collective bargaining agreements (citing H. J. Heinz Co. v. N. L. R. B., 311 U.S. 514, 523-526, 61 S.Ct. 320, 85 L.Ed. 309 (1941)), and (3) previous practice of having signed, written agreements, the Court of Appeals also stated that it felt no one really believed that the parties would be bound until the contract was fully executed and delivered. Id. 383 F.2d at 708-709. Moreover, the quid pro quo of any collective bargaining agreement is the “no strike” for “arbitration” clauses. Textile Workers, etc. v. Lincoln Mills, 353 U.S. 448, 77 S.Ct. 912, 1 L.Ed.2d 972 (1957); New Orleans Steamship Ass’n v. General Longshore Workers, 389 F.2d 369 (5th Cir. 1968). Indeed, a strike may sometimes constitute such a repudiation as to justify recission by the company. See United Electrical, R & M Wkrs, etc. v. N. L. R. B., 96 U.S.App.D.C. 46, 223 F.2d 338 (1955); Local Joint Exec. Bd., etc. v. Nationwide Downtowner Motor Inns, 229 F.Supp. 413 (W.D. Mo.1964). CONCLUSIONS Application of the above rules to the facts of this case leads to the conclusion that there is no contract between the parties. Prior to October 13, 1969, even agreement in principle had not been reached on four vital matters. Moreover, such agreement as had been reached on the other provisions was only tentative and dependent upon agreement on the whole. The contract is admittedly entire and not severable and therefore the validity of each part is dependent on the whole. Likewise, it was the clear intention of both parties to realize a" }, { "docid": "16081178", "title": "", "text": "with the Union concerning grievances after January 18, 1963. The Board ordered respondent to sign the agreement if requested by the Union, or, if no such request was made, to bargain for a new contract, and to cease and desist from refusing to recognize and deal with the Union with respect to its employees’ grievances. Section 158(a) (5) makes it an unfair labor practice for an employer “to refuse to bargain collectively with the representatives of his employees, * * Section 158(d) states that included within the obligation to bargain collectively is “the execution of a written contract incorporating any agreement reached if requested by either party, * * Failure to execute and sign an agreement incorporating the terms of a negotiated contract is an unfair labor practice. H. J. Heinz Co. v. N.L.R.B., 311 U.S. 514, 61 S.Ct. 320, 85 L.Ed. 309; N.L.R.B. v. Ohio Car & Truck Leasing, Inc., 361 F.2d 404 (C.A. 6); Stack-house Oldsmobile, Inc. v. N.L.R.B., 330 F.2d 559 (C.A. 6); Standard Oil Company v. N.L.R.B., 322 F.2d 40 (C.A. 6). The scope of our review is limited to determining if the record contains substantial evidence to support the findings of the Board. Section 160(e), Title 29, U.S.C.; Universal Camera Corporation v. National Labor Relations Board, 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456; National Labor Relations Board v. Denver Bldg. & Const. Trades Council, 341 U.S. 675, 71 S.Ct. 943, 95 L.Ed. 1284. The credibility of witnesses is generally a matter for the determination of the hearing examiner and the Board. Keener Rubber, Inc. v. N.L.R.B., 326 F.2d 968 (C.A. 6), cert. den. 377 U.S. 934, 84 S.Ct. 1337, 12 L.Ed.2d 297; N.L.R.B. v. Herman Bros. Pet Supply, Inc., 325 F.2d 68 (C.A. 6); N.L.R.B. v. Bendix Corporation (Research Lab. Div.), 299 F.2d 308 (C.A. 6), cert. den. 371 U.S. 827, 83 S.Ct. 47, 9 L.Ed.2d 65. We conclude that there is substan tial evidence in the record to support the Board’s determination that respondent committed unfair labor practices in refusing to execute the contract and in refusing after January 18th to process" }, { "docid": "316913", "title": "", "text": "agreement concerning working conditions of employees, the employer has a duty to execute a written agreement and he may be required to sign if he refuses after being-requested to do so by the union, and his refusal is an unfair labor practice. So-the fact that the proposed written agreement was not signed did not demonstrate-as a matter of law that there was no contract. See Hamilton Foundry & Machine-Co. v. International Molders & Foundry-Workers Union of North America, 193 F.2d 209, 213-14 (C.A.6, 1962); Rabouin v. N. L. R. B., 195 F.2d 906, 910 (C.A.2, 1952); N. L. R. B. v. Local 825, International Union of Operating Engineers, AFL-CIO, 315 F.2d 695 (C.A.3,. 1963); Standard Oil Co. v. N. L. R. B., 322 F.2d 40 (C.A.6, 1963). A party, who has originally insisted that both parties sign a document before a mutually binding agreement may come into existence, may dispense with that requirement. Section 28A of Williston on Contracts, states in part: “ * * * Parties rarely express a direct intention as to the moment when they conceive themselves to be bound by a contract. The law attaches legal obligations, whether they will or not, when their acts fulfill the requirements of the law. If, therefore, the parties have agreed upon all the terms that a proposed written contract shall contain, there is a contract, for they have made positive promises to one another, certain in their content and sufficient as consideration for one another -x- -x- -» where the parties act under a preliminary agreement, they will be held to be bound, notwithstanding the fact that a formal contract has not been executed; and it seems that even where signing by both parties is originally contemplated, subsequent agreement manifested by acts may dispense with the requirement.” (Italics ours.) Also see Restatement of Contracts, § 26. It is true that negotiations continued on disputed issues after June 15, and the actions of a party may have some evidentiary bearing as to his frame of mind at an earlier time. But whether Roadway believed or should not have believed there" }, { "docid": "20575221", "title": "", "text": "offer is made, but is not unconditionally accepted. The reply may be a partial or conditional acceptance, in which case certain terms of the offer are agreed upon while others are not. The parties may proceed with their negotiations without any new and distinct reference to the terms already assented to. There is no contract until agreement is reached on all terms, the preliminary and partial agreements being expressly or impliedly incorporated into the final offer or acceptance.” (Emphasis added) (Corbin on Contracts, One Volume Edition, § 29, p. 45 (1952). Similarly, the parties are free to set the point as of which they enter a contract. One of the most common illustrations of preliminary negotiation that is totally inoperative is one where the parties consider the details of a proposed agreement, perhaps settling them one by one, with the understanding during this process that the agreement is to be embodied in a formal written document and that neither party is to be bound until he executes this document. (Cor-bin on Contracts, One Volume Edition, § 30, p. 47 (1952). This rule has been applied specifically to collective bargaining agreements by the Fifth Circuit Court of Appeals. Warrior Constructors, Inc. v. International Union of Operating Engineers, Local Union No. 926, 383 F.2d 700, 708 (5th Cir. 1967). The Court of Appeals there held that the intention of the parties governs whether a contract takes effect before a contemplated writing is executed. In view of (1) the doubtful enforceability of oral contracts intended to last longer than one year, (2) the importance national labor policy attaches to written, signed collective bargaining agreements (citing H. J. Heinz Co. v. N. L. R. B., 311 U.S. 514, 523-526, 61 S.Ct. 320, 85 L.Ed. 309 (1941)), and (3) previous practice of having signed, written agreements, the Court of Appeals also stated that it felt no one really believed that the parties would be bound until the contract was fully executed and delivered. Id. 383 F.2d at 708-709. Moreover, the quid pro quo of any collective bargaining agreement is the “no strike” for “arbitration” clauses." }, { "docid": "5600766", "title": "", "text": "of cases to support their position that Bethlehem was bound by practice amounting to the “law of the shop,” among them: United Steelworkers of America v. Warrior and Gulf Navigation Co., insofar as it holds generally that a collective bargaining agreement encompasses more than the writing signed by the parties; United Furniture Workers of America Local 395 v. Virco Manufacturing Corp. holding that “in determining what the contract is, so as to properly interpret it, an arbitrator or court should properly consider not only the formal written agreement but the actual practices prevailing between the parties as well.” American Machine & Foundry Company v. UAW, Local 116 was named by ap pellants as demonstrating error on the part of the District Court in failing to apply the “law of the shop” to the conduct of Bethlehem in this case. Appellants also claim support for their contentions in NLRB v. Local 825, Operating Engineers, asserted by them to hold “that a written contract though signed by only one party is nevertheless binding if the second party accepts the contract and both parties rely on it.” The appellants also • pointed to Tor-rington Company v. Metal Products Workers Union Local 1645 (Torrington I) for a general proposition that the broad scope of matters encompassed in a collective bargaining agreement was recognized by the court, and Torrington Company v. Metal Products Workers Union Local 1645 (Torrington II) as additional authority that a collective bargaining agreement can include terms not explicitly contained within it. But appellants ignore the majority opinion in Torrington II which twice states the general rule that a labor contract ordinarily recites affirmative agreements and not discontinued practices. Appellants relied on Smith v. Pittsburgh Gage and Supply Co., Hamilton Foundry and Machine Co. v. International Molders and Foundry Workers, and Philadelphia Marine Trade Association v. ILA to support their position that Bethlehem’s past acceptance of Mr. Shadden bound Bethlehem. The foregoing cases submitted by the appellants have been reviewed and their salient features noted in the margin hereof. Contrary to appellants’ contention, they simply do not support their position. All miss" }, { "docid": "2274048", "title": "", "text": "agreement, but that he would continue to try. Farr telephoned Wilde numerous times thereafter to see if Mayes would sign the contract, but Wilde reported that Mayes had not signed. At no time after the June 3 meeting did either party raise a question concerning the substance of the agreement. During the last telephone conversation Wilde asked Farr if the Union would accept a letter contract rather than a formal agreement. Farr agreed to consider this proposal and Wilde agreed to draft a letter, present it to Mayes, and send Farr a copy. Wilde never sent the letter because Mayes refused to sign it. On these facts the Trial Examiner concluded that on June 3, 1964, the parties had reached agreement on all the substantive terms of a collective-bargaining contract and that nothing further was required but the signature of the parties. Accordingly, he held that the Company’s refusal to sign the contract constituted a per se violation of § 8(a) (5). H. J. Heinz Co. v. N. L. R. B., 1941, 311 U.S. 514, 61 S.Ct. 320, 85 L.Ed. 309; N. L. R. B. v. Berkley Mach. Works & Foundry Co., 4 Cir. 1951, 189 F.2d 904, 909-910; N. L. R. B. v. Todd Co., 2 Cir. 1949, 173 F.2d 705, cert. denied, 1950, 340 U.S. 864, 71 S.Ct. 87, 95 L.Ed. 631; Sears Roebuck & Co., 1962, 139 N.L.R.B. 471; James C. Ellis, 1953, 102 N.L.R.B. 497; 7 N.L.R.B. Ann.Rep. 49 (1942); see National Labor Relations Act § 8(d), as amended 29 U.S.C.A. § 158(d). The Board rejected the finding that the parties had agreed on all contract terms at the June 3 meeting, pointing out that technically the parties did not settle the issue of contract duration; the Company might have desired a two year contract but been unwilling to grant an additional wage increase in the second year. The Board thought the evidence nevertheless showed that the Company misled the Union into believing that the parties had reached complete agreement and that only execution of the contract remained. The Board relied on this inference, among others," }, { "docid": "21188003", "title": "", "text": "in accord with this legal conclusion. When the parties reach an agreement they have a duty to execute a written contract. See: H. J. Heinz Co. v. N. L. R. B., 311 U.S. 514, 525-526, 61 S.Ct. 320, 85 L.Ed. 309; N. L. R. B. v. Nesen, 211 F.2d 559, 563, C.A.9, cert. denied 348 U.S. 820, 75 S.Ct. 32, 99 L.Ed. 646; N. L. R. B. v. Jeffries Banknote Co., 281 F.2d 893, C.A.9; N. L. R. B. v. Tower Hosiery Mills, Inc., 180 F.2d 701, 705, C.A.4, cert. denied 340 U.S. 811, 71 S.Ct. 38, 95 L.Ed. 596. In arriving at its conclusion the Board decided the case on a narrower issue than the one advanced by the trial examiner. We do not need to decide in this case that any sort of provision for approval delegated by bargaining representatives to an international union or council is unlawful, nor do we. The Unions cite United States Pipe and Foundry Co. v. N. L. R. B., 298 F.2d 873, C.A.5, cert. denied, 370 U.S. 919, 82 S.Ct. 1557, 8 L.Ed.2d 499, in support of their claims. This case is not applicable to the case at bar. The question in that case was whether the demand of the unions for common expiration dates of contracts for different units of the same employer was a proper subject of bargaining with the employer. The court held that it was. In our case the Unions did not even bring the subject of agreement at Toledo up for discussion at the bargaining table. They imposed agreement at Toledo as a condition after agreements were reached at Cleveland and Lima and without having previously conferred with the employer about it. Neither is N. L. R. B. v. Insurance Agents’ International Union, AFL-CIO, 361 U.S. 477, 80 S.Ct. 419, 4 L.Ed.2d 454, pertinent to the case at bar. In that case it was claimed that the union sponsored concerted on-the-job activities by its members of a harassing nature to interfere with employer’s business for the purpose of putting economic pressure on the employer to accede to" }, { "docid": "22449369", "title": "", "text": "New York Statute of. Frauds, N.Y.Personal Property Law, McK.Consol.Laws, c. 41, § 31, voids all agreements not to be performed within one year which are not signed by the party to be charged. The contention can have no weight; the vagaries of state rules of law may not override provisions of a federal act geared to the effectuation of an important national labor policy. Hill v. State of Florida ex rel. Watson, Atty. Gen., 325 U.S. 538, 65 S.Ct. 1373, 89 L.Ed. 1782; N. L. R. B. v. Hearst Publications, 322 U.S. 111, 123, 64 S.Ct. 851, 88 L.Ed. 1170. A state statute of frauds, no' matter what its wording, cannot transform into an unfair labor practice activity under the Act otherwise validated by a binding oral contract between employer and union. Cf. Hamilton Foundry & Machine Co. v. International Molders & Foundry Workers, supra, 193 F.2d at page 215. Moreover, even under the provisions of the New York statute, the contract is merely rendered unenforceable in an affirmative action; it may nonetheless be used, as here, in support of a proper defense to some claim of tort, 2 Corbin on Contracts § 299, supplementing § 279, 1950, or breach of contract asserted by the non-signatory party, De Beerski v. Paige, 36 N.Y. 537; Restatement, Contracts, N.Y.Annot. 113, 1933. Even if the union were barred from alleging Rabouin’s violation of § 8(a) by failure to comply with the contract, yet, where the latter seeks to exploit his own dereliction as a ground for relief, the contract may be shown despite the fact that he did not sign it. For in such a case Rabouin is not the party to be charged. Restatement, Contracts § 217(1) and comment a, 1932; Crane v. Powell, 139 N.Y. 379, 383, 384, 39 N.E. 911. Nor was Rabouin, thus originally bound by the 1946 area agreement, released from his obligation by the union’s refusal to terminate its strike in October, 1947. It is now lately suggested that the strike, coupled as it was with a demand that Rabouin sign the contract, pay certain back wages," }, { "docid": "316911", "title": "", "text": "writing entitled “Maintenance of Standards” represents the only conditions of employment which exceed the written agreement. Local 249 refused to sign the memorandum. Further meetings failed to bring the parties together, and the strike continued until Roadway closed the Pittsburgh terminal on January 13, 1962. At the outset Local 249 points out that the contract attached to the complaint as “Exhibit A” is one between Joint Council No. 40, representing 12 local unions, and the Association, and not one between Local 249 and Roadway, who is a stranger to that document. This fact is not an insurmountable obstacle to Roadway’s claim. Parties may agree to become bound by a contract negotiated by other parties. For example, see Line Drivers Local No. 961 of International Broth, of Teamsters etc. v. W. J. Digby, Inc., 218 F.Supp. 519 (D.C.Colo.1963). Roadway does not seriously dispute that a contract did not come into existence on June 1, 1961. On that date Local 249 informed Roadway that it would not sign the new agreement unless the parties first entered into a memorandum of understanding. No such memorandum was entered into. Moreover, the complaint does not ask for damages dating from June 1, but from August 9, 1961, instead. But there were-further meetings and discussions between the parties looking forward to an agreement. On or about June 15, Roadway claims, Local 249 accepted the written agreement as setting forth conditions under which the employees would return to work even though it did not. sign it. Citing H. J. Heinz Co. v. N. L. R. B., 311 U.S. 514, 523-26, 61 S.Ct. 320, 85 L.Ed. 309 (1941), the District Court concludes: “Hence the peculiar characteristics of labor contracts confirm the-genera) rule of contract law that no contract was created under the circumstances of the case at bar in the absence of formal execution.” 211 F.Supp. 796, at p. 798 (W.D.Pa.1962). We do not read the Heinz case as holding that there is no-contract unless there is a formal execution. On the contrary the case stands for the proposition that where a union and an employer reach an" }, { "docid": "22687371", "title": "", "text": "of sections 158 to 160 of this title, but such loss of status for such employee shall terminate if and when he is reemployed by such employer.” 29 U. S. C. §158 (d). In coming to a contrary conclusion, the trial examiner mistakenly relied on Brotherhood of Painters, Local Union No. 1S85, 143 N. L. R. B. 678 (1963), where the Board held that a union violated § 8 (d) by refusing to execute a written contract containing a permissive term to which it had previously agreed. “The parties did discuss the provision,” the Board reasoned, “and for us to hold that the Employers in this case may not insist on the inclusion of this provision in their contract would upset, if not undo, the stabilizing effects of the agreement which was reached after several negotiation meetings.” Id., at 680. The union was required to sign the contract at the employers’ request, not because § 8 (d) reaches permissive terms, but because the union’s refusal obstructed execution of an agreement on mandatory terms. Cf. NLRB v. Katz, supra, n. 2. The notification required by paragraph (3) is “of the existence of a dispute.” Section 2 (9) of the Act defines “labor dispute” to include “any controversy concerning terms, tenure or conditions of employment, or concerning the association or representation of persons in negotiating, fixing, maintaining, changing, or seeking to arrange terms or conditions of employment 49 Stat. 450, as amended, 29 U. S. C. §152(9). Since controversies over permissive terms are excluded from the definition, a paragraph (3) notice might not be required in the case of a proposed modification to such a term even if § 8 (d) applied. It does not appear whether the collective-bargaining agreement involved in this cause provided for arbitration that would have been applicable to this dispute. We express no opinion, therefore, on the relevance of such a provision to the question before us." } ]

[ { "docid": "7503559", "title": "", "text": "the trust instrument, Cleveland Clinic Foundation v. Humphrys, 97 F.2d 849, 856 (6th Cir.), cert. denied, 305 U.S. 628-29, 59 S.Ct. 93, 83 L.Ed. 403 (1938); II Scott on Trusts § 164 at 1254-57 (3d ed. 1967), and that contracts ultra vires entered into by the trustee may therefore be unenforceable. Spencer v. Harris, 70 Wyo. 505, 252 P.2d 115 (1953); Towle v. Ambs, 123 Ill. 410, 14 N.E. 689 (1888). The sum of these doctrines is that a trustee cannot ordinarily promise to pay a beneficiary more than the trust instrument authorizes. What might be called their composite corollary is that when a trustee overpays a beneficiary the trustee is entitled to recover the excess payment, even when it was the product of unilateral mistake on the part of the trustee. Ill Scott on Trusts § 254 at 2183-84 (3d ed. 1967), and cases cited therein; Restatement (Second) of Trusts § 254, Comment (e) (1959); see Lanston v. American Security & Trust Co., 32 A.2d 482 (D.C.1943); Union Trust Co. v. Gilpin, 235 Pa. 524, 84 A. 448 (1912). The difficulty with the application of these doctrines of trust law lies not in any dispute regarding their validity but rather in the unusual factual setting of this case. We do not, in the first place, have before us a situation in which the parties have attempted to modify the terms of the Plan. No matter how the arguments are parsed, no attempt at modification of the Plan was envisaged under the Agreement, nor, assuming that document’s validity, was any modification accomplished. At most there occurred an incorrect computation of Hoffa’s entitlement, from the effects of which error the administrators seek to escape through reliance on the trust doctrine proscribing modification and the contract doctrine of mistake. The obstacle faced by the trustee and administrators in proffering these arguments is, of course, the Agreement. When stripped of all embellishment, the core of appellants’ position is simply that no agreement regarding the amount of a beneficiary’s entitlement under a trust can ever be effective if its terms are at variance with" } ]

[ { "docid": "20219736", "title": "", "text": "ask, if the debtor was only a conduit and its creditors would not otherwise have had any reasonable expectation of recovering this money, why should those creditors receive a windfall now? From the standpoint of debtor’s creditors, in whose behalf the Trustee brings suit, there was no net diminution of expected recovery, which is and must be the touchstone of every avoidance action whether under §§ 547, 548 or 549. 4. The $250,000 But what of the money that both sides agree was property of the debtor and whose loss does diminish the recovery of the creditors? In defense to recovery of this portion defendants argue that either debtor was not insolvent as of March 25, 2005, that reasonably equivalent consideration was received or that in any event the transaction qualifies for a safe harbor under § 546(g). The Court analyzes these arguments in reverse order. A. The § 546(g) safe harbor Section 546(g) provides that a trustee may not recover a transfer made “in connection with any swap agreement ... except under § 548(a)(1)(A) of this title.” “Swap agreement” is a defined term under § 101(53B). This section was enacted by Congress to shield markets in ordinary swap arrangements as are created in securities exchanges from instability that might be threatened by unnecessary and inappropriate litigation by bankruptcy trustees seeking to reverse settled transactions. Kaiser Steel Corp. v. Charles Schwab & Co., (In re Kaiser Steel Corp.), 913 F.2d 846, 848 (10th Cir.1990). However, to avail of the safe harbor, the form of settlement payment must be “commonly used” within the industry. Enron Corp. v. Bear, Stearns Int’l Ltd. (In re Enron Corp.), 323 B.R. 857, 870 (Bankr.S.D.N.Y.2005). Congress also had no intent to shield transactions illegal under local law under the cover of a “swap” label. See Enron Corp. v. Credit Suisse First Boston Int’l (In re Enron Corp.), 328 B.R. 58, 67 (Bank.S.D.N.Y.2005), citing Bear, Stearns Int’l, 323 B.R. at 876. In Bear Steams the purported swap violated Oregon law which made transfers from an insolvent corporation to acquire its own shares illegal. Id. at 876. Therefore," }, { "docid": "19142755", "title": "", "text": "for the Second Circuit has adopted a similar two-prong test and developed additional useful criteria to apply it. See Midland Cogeneration Venture L.P. v. Enron Corp. (In re Enron Corp.), 419 F.3d 115, 133 (2nd Cir.2005); Integrated Resources, Inc. v. Ameritrust Co. N.A. (In re Integrated Resources, Inc.), 157 B.R. 66, 70 (S.D.N.Y.1993). Bankruptcy Courts within the Second Circuit “examine each fact within the case and determine whether it would be equitable to allow the amendment”. In re Enron Corp., 419 F.3d at 133. Hence, they “must first look to whether there was timely assertion of a similar claim or demand evidencing an intention to hold the estate liable.” In re Integrated Resources, Inc., 157 B.R. at 70 (citations omitted). If there was such a timely assertion, the court then examines each fact within the case and determines whether it would be equitable to allow the amendment. Id. In balancing the equities, the court considers the following equitable factors: (1) undue prejudice to opposing party; (2) bad faith or dilatory behavior on part of the claimant; (3) whether other creditors would receive a windfall were the amendment not allowed; (4) whether other claimants might be harmed or prejudiced; and (5) the justification for the creditor’s inability to file the amended claim at the time the original claim was filed. Id. As the U.S. Court of Appeals for the Fifth Circuit noted in In re Kolstad, 928 F.2d 171, 176 (5th Cir.1991), these considerations really come down to two questions: (1) is the creditor attempting to stray beyond the perimeters of its original proof of claim, effectively filing a new claim, and (2) what is the degree and incidence of prejudice caused by the creditor’s delay. Section 1326(c) of the Bankruptcy Code requires the Chapter 13 Trustee to make plan distributions to creditors under the plan. The Chapter 13 Trustee can only make those distributions on account of allowed claims. See Fed. R. Bankr.P. 3021 (“after a plan is confirmed, distribution shall be made to creditors whose clams have been allowed”); In re Dumain, 492 B.R. 140, 143 (Bankr.S.D.N.Y.2013). In the" }, { "docid": "7253601", "title": "", "text": "of the estate and is then distributed pursuant to the scheme established by § 726(a). Simply because the creditors of a estate may be the primary or even the only beneficiaries of such a recovery does not transform the action into a suit by the creditors. Otherwise, whenever a lawsuit constituted property of an estate which has insufficient funds to pay all creditors, the lawsuit would be worthless since under Caplin it could not be pursued by the trustee. See Gordon v. Basroon (In re Plaza Mortgage and Finance Corporation, supra), 187 B.R. at 42 (“To find that the trustee has no standing to pursue causes of action belonging to the debtor because the recovery would only benefit the creditors is an absurd argument, given the fact that the trustee’s goal is to make a distribution to creditors.”). Such a result would be non sensical. It would provide a windfall to the defendant without any justifiable reason. In the instant case, the Trustee alleged in the Amended Complaint that Grant Thornton’s conduct caused Debtor to suffer damages in the nature of “lost profits.” As I reasoned in Waslow I, 212 B.R. at 82 n. 5, such damages belong solely to the Debtor and not to its creditors. Similarly, in the Trustee’s expert report, damages are calculated based on the decrease in value of the Debtor’s business. Again, a creditor could not sue for this type of damage. Accordingly, based on the injury claimed and the types of damages being sought, I reiterate my prior finding in Waslow I that this lawsuit is not being brought on behalf of the creditors. See Drabkin v. L & L Construction Associates, Inc. (In re Latin Investment Corp.), 168 B.R. 1, 6 (Bankr.D.Dist.Col.1993) (reasoning that to the extent the bankruptcy trustee’s allegations of fraud “are made in the hope of recovering for any damages defendants may have caused depositors, ... the trustee is without standing to sue[,]” but to the extent the allegations “relate to how defendants and the debtor’s principals acted in concert to loot the debtor, the trustee has standing to seek" }, { "docid": "18498956", "title": "", "text": "a confirmed plan. It merely provides for the reconsideration of claims, and use of “may” indicates a rule of discretion rather than a mandatory requirement. Thé current version of § 502(j) has, since 1984, contained the following language: “This subsection does not alter or modify the trustee’s right to recover from a creditor any excess payment or transfer to such creditor.” 11 U.S.C. § 5020') (1988). The “trustee’s right to recover,” referred to in the 1984 amendment, was derived from § 57(i) of the old Bankruptcy Act, 11 U.S.C. § 93(Z) (1976), which expressly provided for the trustee’s recovery of erroneously paid dividends. It has been held that § 51(1) did not give a trustee an absolute right to recover an excess dividend. Rather, as provided in the preceding subsection 57(k), a bankruptcy court was required to consider the equities of the particular case in amending an order of payment. In re Jules Meyers Pontiac, 779 F.2d 480, 482 (9th Cir.1985). The court in Meyers Pontiac concluded further that the balancing of equities is a factual process and the determination regarding repayment resulting from the balancing process is a factual one. Thus, even when the underlying facts are undisputed a decision ordering repayment is reviewed under a clearly erroneous standard. Id. at 482. The bankruptcy court in the present case articulated several reasons for denying the trustee’s demand to recapture the post-confirmation payments. The court did not balance the equities because it concluded, as a matter of law, that § 502(j), both as it stood in 1982 and as it was amended in 1984, did not permit recovery of post-confirmation payments in the present case. The bankruptcy court relied upon the fact that the confirmation of a plan revests the property of the estate in the debtor and that § 549(a) limits the right of a trustee’s recovery to transfers of estate property. When property revests in the debtor, the binding effect of the confirmation order as provided in § 1141(a) would be rendered meaningless if a trustee could recapture payments made pursuant to the order. Section 502(j) was not" }, { "docid": "1886512", "title": "", "text": "a prerequisite to a discharge, the court was required to enter a discharge even if plan payments were insufficient to permit the trustee to pay claims in accordance with the plan. The court rejected this argument. Instead, it concluded that a chapter 13 debt- or “is entitled to a discharge only if ... [the plan] payments permitted the trustee to pay claims ‘in accordance with the plan.’ ” In re Avery, 272 B.R. at 729. After all, the debtor’s payments to the trustee and the trustee’s payments to creditors are obviously related. If the trustee has been able to pay all dividends promised by the plan, the debtor must have made all plan payments. The final report and account may be approved and the discharge entered. If the trustee has not paid claims in accordance with the plan, either the debtor did not make all plan payments necessary to fund the promised dividends, or the debtor made the necessary plan payments but the trustee failed to disburse them in accordance with the plan. In the former case, it is premature to enter a discharge or approve the final report and account. In the latter, the debtor is entitled to a discharge even though approval of a final report and account must await the trustee’s corrective action. This might require, in instances where the trustee has failed to disburse funds on hand to creditors, that he distribute those funds. In a case where the trustee pays a dividend in excess of what the plan requires, the trustee must recover the overpayment and then redistribute it to the correct creditor(s) or refund it to the debtor. If the trustee cannot recover the overpayment, he may have to dig into his own pocket and make good the misdirected plan dividend. See Nash v. Kester (In re Nash), 765 F.2d 1410, 1415 (9th Cir.1985). In the hopefully rare instance where a debtor has paid the amounts required by the plan and fully funded the promised dividends but the trustee has not paid those dividends, there is no need to delay the debtor’s discharge until" }, { "docid": "19142756", "title": "", "text": "claimant; (3) whether other creditors would receive a windfall were the amendment not allowed; (4) whether other claimants might be harmed or prejudiced; and (5) the justification for the creditor’s inability to file the amended claim at the time the original claim was filed. Id. As the U.S. Court of Appeals for the Fifth Circuit noted in In re Kolstad, 928 F.2d 171, 176 (5th Cir.1991), these considerations really come down to two questions: (1) is the creditor attempting to stray beyond the perimeters of its original proof of claim, effectively filing a new claim, and (2) what is the degree and incidence of prejudice caused by the creditor’s delay. Section 1326(c) of the Bankruptcy Code requires the Chapter 13 Trustee to make plan distributions to creditors under the plan. The Chapter 13 Trustee can only make those distributions on account of allowed claims. See Fed. R. Bankr.P. 3021 (“after a plan is confirmed, distribution shall be made to creditors whose clams have been allowed”); In re Dumain, 492 B.R. 140, 143 (Bankr.S.D.N.Y.2013). In the instant case, there is no dispute that Proof of Claim No. 12-1 was timely filed, not objected, and therefore deemed allowed under 11 U.S.C. § 502(a). Consequently, the Chapter 13 Trustee made proper disbursements to Cooperativa pursuant to the claim filed under the terms of the confirmed Plan pursuant to 11 U.S.C. § 1326(c) and Fed. R. Bankr.P. 3021. Cooperativa did not object to the confirmation of the Plan or otherwise pleaded receiving less money than it was entitled to under the provisions of the Plan. It was not until July 8, 2013, when all Plan payments had been made, that Coo-perativa filed amended Proof of Claim No. 12-2. Then, about a month and half later, on August 21, 2013, Cooperativa sought an order for the Chapter 13 Trustee to recover the money paid to other unsecured creditors in order to pay it 100% of its claim as established not in Proof of Claim No. 12-1, but in amended Proof of Claim No. 12-2. Although the Chapter 13 Trustee did not expressly file an objection" }, { "docid": "4005407", "title": "", "text": "fiduciary duties to the creditors of the estate. Commodity Futures Trading Comm’n v. Weintraub, 471 U.S. 343, 355-56, 105 S.Ct. 1986, 1994-95, 85 L.Ed.2d 372 (1985). A failure to seek recovery of a qualifying claim under § 506(c) may constitute a breach of those duties. Cf. Yadkin Valley Bank & Trust Co. v. McGee (In re Hutchinson), 5 F.3d 750, 752-53 (4th Cir.1993) (stating that a trustee may be held personally liable for willful and deliberate violations of his fiduciary duties); NBD Park Ridge Bank v. SRJ Enters., Inc. (In re SRJ Enters., Inc.), 151 B.R. 189, 194-95 (Bankr.N.D.Ill.1993) (stating that a debtor in possession breaches its fiduciary duties to the creditors of the estate if it “unjustifiably fails to institute a suit to recover a voidable preference”). In addition, trustees are administrative claimants who are paid from the funds of the estate. See 11 U.S.C.A. §§ 330(a), 503(b)(2), 507(a)(1), 726(a)(1) (West 1993). If there are insufficient funds in the estate to pay all of the allowed administrative expenses, the trustee will not be paid in full, but will be required to share the funds of the estate on a pro rata basis with the other administrative claimants. In re Great N. Forest Prods., 135 B.R. at 67 n. 27; see 11 U.S.C.A. §§ 503(b), 507(a)(1), 726(a)(1) (West 1993). Thus, not only does a trustee usually have a strong incentive to pursue § 506(c) claims, but both the trustee and debtor in possession have a fiduciary duty to pursue viable § 506(c) claims that would benefit the estate. The assumption that granting standing to claimants is the only way to prevent a windfall to secured creditors is also erroneous. If a trustee or debtor in possession fails to bring an action under § 506(c), the claimant or other interested party may: (1) request that the bankruptcy court compel the trustee or debtor in possession to seek recovery of postpetition costs and expenses pursuant to § 506(e), see 11 U.S.C.A. § 105(a) (West 1993); (2) request that the court remove the trustee, see 11 U.S.C.A. § 324(a) (West 1993); or (3)" }, { "docid": "7253600", "title": "", "text": "Thornton would be correct that: (i) the Trustee would lack standing to bring this action pursuant to the rule enunciated in Caplin v. Marine Midland Grace Trust Co., 406 U.S. 416, 92 S.Ct. 1678, 32 L.Ed.2d 195 (1972), namely that a trustee lacks standing generally to sue third parties on behalf of the creditors of the estate; and (ii) the action would violate the law in Pennsylvania that an action for accountants’ negligence cannot be maintained unless there is privity of contract between the parties. See Grant Thornton’s Mem. at 37; Grant Thornton’s Reply at 6-7, 9-12. Rejecting the hypothesis, I find these well established rules of law inapplicable here. The Trustee’s assertion that this action will benefit creditors is not an admission that this action is being brought on then-behalf. In a liquidation case, it is commonplace for a trustee to pursue an action on behalf of the debtor in order to obtain a recovery thereon for the estate. If the trustee is successful in the action, the recovery which he obtains becomes property of the estate and is then distributed pursuant to the scheme established by § 726(a). Simply because the creditors of a estate may be the primary or even the only beneficiaries of such a recovery does not transform the action into a suit by the creditors. Otherwise, whenever a lawsuit constituted property of an estate which has insufficient funds to pay all creditors, the lawsuit would be worthless since under Caplin it could not be pursued by the trustee. See Gordon v. Basroon (In re Plaza Mortgage and Finance Corporation, supra), 187 B.R. at 42 (“To find that the trustee has no standing to pursue causes of action belonging to the debtor because the recovery would only benefit the creditors is an absurd argument, given the fact that the trustee’s goal is to make a distribution to creditors.”). Such a result would be non sensical. It would provide a windfall to the defendant without any justifiable reason. In the instant case, the Trustee alleged in the Amended Complaint that Grant Thornton’s conduct caused Debtor to" }, { "docid": "19159834", "title": "", "text": "duties as a necessary means to ensure that the trustee’s payment system functions smoothly.” Stevens v. Baxter (In re Stevens), 187 B.R. 48, 51-52 (Bankr.S.D.Ga.1995), aff'd in part and rev’d in part, Ford Motor Credit Co. v. Stevens (In re Stevens), 130 F.3d 1027, 1031 (11th Cir.1997); see also Kerney v. Capital One Fin. Corp. (In re Sims), 278 B.R. 457, 476 & n. 10 (Bankr.E.D.Tenn.2002); Hope v. Brown & Williamson Fed. Credit Union (In re Vaughn), 110 B.R. 94, 95 (Bankr.M.D.Ga.1990). But in these cases it was solely the creditor who was at fault for soliciting or accepting overpay-ments from the debtor or the Chapter 13 trustee. Other courts have denied a trustee’s request to recover funds that were improperly distributed as a result of the trustee’s own error. See, e.g., In re Randolph, No. 98-31564, 2001 WL 1223139, at *12-13 (Bankr.N.D.Ind. Sept. 20, 2001) (citing 11 U.S.C. § 1302) (concluding that “[a] trustee is accountable for all the property he receives and may be liable for improper distribution of funds,” and denying the motion to compel repayment of erroneous distributions because “the error in this case must be attributed to the Standing Chapter 13 Trustee”); see also 8 Collier on Bankruptcy ¶ 1302.03[l][a] (Alan N. Resnick & Henry J. Sommer eds., 16th ed. rev. 2014) (citing Fed. R. Bankr.P.2015; Nash v. Kester (In re Nash), 765 F.2d 1410, 1415 (9th Cir.1985)) (stating that the Chapter 13 trustee must keep a record of all receipts and the disposition of money and property received, and in accordance with this responsibility, he is liable for improper distributions). When faced with a similar timeline as in the present case, one court ruled that the trustee could not recover overpayments made to several creditors under the Chapter 13 plan five years after the plan was confirmed, relying on the Fourth Circuit’s doctrine of equitable estoppel. See Levin v. Fed. Land Bank of Balt. (In re Vick), 75 B.R. 248, 249 (Bankr.E.D.Va.1987). The facts in both lines of cases, however, are distinguishable from the unusual state of affairs before me where both parties are" }, { "docid": "19159835", "title": "", "text": "motion to compel repayment of erroneous distributions because “the error in this case must be attributed to the Standing Chapter 13 Trustee”); see also 8 Collier on Bankruptcy ¶ 1302.03[l][a] (Alan N. Resnick & Henry J. Sommer eds., 16th ed. rev. 2014) (citing Fed. R. Bankr.P.2015; Nash v. Kester (In re Nash), 765 F.2d 1410, 1415 (9th Cir.1985)) (stating that the Chapter 13 trustee must keep a record of all receipts and the disposition of money and property received, and in accordance with this responsibility, he is liable for improper distributions). When faced with a similar timeline as in the present case, one court ruled that the trustee could not recover overpayments made to several creditors under the Chapter 13 plan five years after the plan was confirmed, relying on the Fourth Circuit’s doctrine of equitable estoppel. See Levin v. Fed. Land Bank of Balt. (In re Vick), 75 B.R. 248, 249 (Bankr.E.D.Va.1987). The facts in both lines of cases, however, are distinguishable from the unusual state of affairs before me where both parties are at fault for the distributions made to PCU. The Trustee failed to timely note the passage of the Claims Bar Date without the filing of a proof of claim by PCU when he presented the Confirmation Order providing for the allowance of PCU’s claim as an unsecured claim; he did not seek to modify or vacate the Confirmation Order; and after obtaining an order disallowing the claim as untimely, he made plan payments to PCU for five years. This is not a mere “technical” error. PCU failed to object or respond to the Trustee’s post-confirmation objection to its proof of claim and its disal- lowance; it did not seek to vacate that order; and it accepted the payments issued by the Trustee despite the order disallowing its claim and even pressed for their continuance when they stopped for a period of time. Considering these multiple errors, if I grant the Motion for Turnover, the Trustee would escape repercussions from these deficiencies and the erroneous administration of the Debtors’ plan payments. Conversely, if I deny the" }, { "docid": "18498955", "title": "", "text": "in In re Reef Petroleum Corp., 99 B.R. 355 (Bankr.W.D.Mich.1989): Payments made during an ongoing Chapter 11 should not be “reeled in.” As long as payments are made as required by the plan, and the plan remains in effect, a party can rely on the payments being final. However, once the plan is aborted, and a case is converted to Chapter 7, the parties must revert to Chapter 7 to distribute any remaining property of the estate. Id. at 359. This is precisely the effect of the ruling of the bankruptcy court and the district court in the present case. C. Finally, the trustee argues that he is entitled to recover the post-confirmation payments under § 502(j). At the time of the decision by the bankruptcy court, § 502(j) provided, in its entirety: Before a case is closed, a claim that has been allowed may be reconsidered for cause, and reallowed or disallowed according to the equities of the case. On its face, § 502(j) does not provide for the recovery of payments made under a confirmed plan. It merely provides for the reconsideration of claims, and use of “may” indicates a rule of discretion rather than a mandatory requirement. Thé current version of § 502(j) has, since 1984, contained the following language: “This subsection does not alter or modify the trustee’s right to recover from a creditor any excess payment or transfer to such creditor.” 11 U.S.C. § 5020') (1988). The “trustee’s right to recover,” referred to in the 1984 amendment, was derived from § 57(i) of the old Bankruptcy Act, 11 U.S.C. § 93(Z) (1976), which expressly provided for the trustee’s recovery of erroneously paid dividends. It has been held that § 51(1) did not give a trustee an absolute right to recover an excess dividend. Rather, as provided in the preceding subsection 57(k), a bankruptcy court was required to consider the equities of the particular case in amending an order of payment. In re Jules Meyers Pontiac, 779 F.2d 480, 482 (9th Cir.1985). The court in Meyers Pontiac concluded further that the balancing of equities is a" }, { "docid": "10219633", "title": "", "text": "effect of the payment as determined when bankruptcy results. Palmer Clay Products Co. v. Brown, 297 U.S. 227, 229, 56 S.Ct. 450, 451, 80 L.Ed. 655, 657 (1936). See 2 G. Glenn, FRAUDULENT CONVEYANCES AND PREFERENCES § 401, at 688 (rev. ed. 1940). To make this determination, the court must construct a hypothetical liquidation of the debtor’s estate. Matter of Hale, 15 B.R. 565, 567, 8 B.C.D. 434, 5 C.B.C.2d 759 (Bkrtcy.S.D.Ohio 1981). The costs of the administration of the debtor’s estate are to be taken into account in making the “receive more” determination. In re Schindler, 223 F.Supp. 512, 529 (E.D.Mo.1963). The court need only determine that the preferred creditor, if paid to the extent provided by the Bankruptcy Code, would receive less than 100 percent of its claim. Any dividend less than 100 percent insures that, unless the transfer is avoided, the creditor would receive more than it would receive if paid to the extent provided by the distributive provisions of Chapter 7. In re Saco Local Development Corp., 30 B.R. 862, 865-66 (Bkrtcy.D.Me.1983). See 1983 Ann.Surv.Bankr.L. 662. The trustee’s interim report indicates there have been disbursements of $1,694.39 which constitute administration expenses under § 507(a)(1). These have not been paid. The debtor’s schedules list no § 507(a)(2)-(5) debts. The only debts involved here are those for priority and secured taxes. From a practical point of view we note that the bulk of the assets of the estate consist of contingent recoveries dependent on the trustee litigation. From the proof submitted, it is not possible to construct a hypothetical distribution to creditors. The trustee has pending a fraudulent conveyance action, the outcome of which may provide for a 100% recovery by all creditors. Accordingly, we' find there are material issues of fact regarding the preference determination and deny the trustee’s motion for summary judgment as to the non-trust fund monies. Based on the situation at the time the petition in bankruptcy was filed and the fact that this bankruptcy case cannot be closed until the fraudulent conveyance suit is decided, we hold this preference action open insofar as" }, { "docid": "4604532", "title": "", "text": "belonging to unsecured creditors and the shareholders, and normally only with their consent. American has raised the issue of what should be the nature of a surcharge award ed by the Court—a judgment for cash against American, or a lien against the property. The parties have stipulated that the surcharge should be treated as a lien against the property. C. Benefit to American There must be a benefit to the secured creditor before the trustee is entitled to a surcharge under section 506(c). If the trustee has spent money, but has not conferred any benefit on the creditor, no surcharge is permitted. In re AFCO Enterprises, 35 B.R. 512, 515 (Bankr.D.Utah 1983). The benefit test establishes a ceiling on the recovery of the trustee: The trustee may recover only to the extent of the benefit conferred on American. The actual surcharge is further limited to those expenses that were reasonable and necessary to obtain this benefit. It is noteworthy that section 506(c) does not usually permit the trustee to recover the entire benefit conferred on the secured creditor. It only permits the trustee to recover his or her reasonable and necessary costs and expenses. While the benefit imposes a ceiling on the trustee’s recovery, it does not impose a floor: To the extent that the secured creditor is permitted to keep part of the benefit, this is a windfall to the creditor. In this case, for example, the benefit is shared approximately equally by the trustee and the secured creditor, and American has received a windfall worth approximately $400,000. 1. Preserving and Disposing of Collateral—Statutory Language To satisfy the benefit test, the debt- or must establish in quantifiable terms that it expended funds directly to protect and to preserve the collateral. Cascade Hydraulics, supra, 815 F.2d at 548; Brookfield PCA v. Borron, 738 F.2d 951, 952 (8th Cir.1984); Sells v. Sonoma V (In re Sonoma V), 24 B.R. 600, 603-05 (9th Cir. BAP 1982). American argues that the expenditures by the trustee in this case were neither to protect nor to preserve the property here at issue. Instead, American argues," }, { "docid": "4005405", "title": "", "text": "statute”); cf. Ron Pair Enters., 489 U.S. at 242 n. 5, 109 S.Ct. at 1030 n. 5. B. Nonetheless, other Courts of Appeals have concluded that § 506(c) standing should not be limited to trustees and debtors in possession. See Boatmen’s, 5 F.3d at 1159; North County Jeep & Renault, Inc. v. General Elec. Capital Corp. (In re Palomar Truck Corp.), 951 F.2d 229, 232 (9th Cir.1991), cert. denied, — U.S. -, 113 S.Ct. 71, 121 L.Ed.2d 37 (1992); In re Parque Forestal, Inc., 949 F.2d 504, 511 (1st Cir.1991); New Orleans Pub. Serv., Inc. v. First Fed. Sav. & Loan Assoc. of Warner Robins, Ga. (In re Delta Towers, Ltd.), 924 F.2d 74, 77 (5th Cir.1991); Equitable Gas Co. v. Equibank N.A. (In re McKeesport Steel Castings Co.), 799 F.2d 91, 94 (3d Cir.1986). The Court of Appeals for the Third Circuit chose to grant standing under § 506(c) to an administrative claimant based on its conclusion that the claimant was the only entity with an incentive to pursue the claim. In re McKeesport, 799 F.2d at 94. Other Courts of Appeals have essentially relied on In re McKeesport with little analysis except to note that denying standing to an administrative claimant would allow a secured creditor to reap a windfall, an inequitable result. See Boatmen’s, 5 F.3d at 1159; In re Palomar, 951 F.2d at 232; In re Parque Forestal, 949 F.2d at 512; In re Delta Towers, 924 F.2d at 76-77. Thus, In re McKeesport and its progeny have chosen to ignore the plain language of the statute based on two assumptions: (1) that a trustee or debtor in possession often has no incentive to seek recovery of postpetition costs and expenses under § 506(e); and (2) that granting standing to an administrative claimant under § 506(c) is the only means available to prevent a windfall to a secured creditor when the trustee or debtor in possession fads or declines to seek a surcharge under § 506(c). With respect to the incentive of trustees and debtors in possession to seek a surcharge under § 506(e), both owe" }, { "docid": "12162025", "title": "", "text": "a trustee’s decision unjustified in one bankruptcy may not necessarily support the same conclusion in another. But we also believe the universe of circumstances in which the trustee’s refusal to bring a creditor’s claims is unjustified to be somewhat limited. At one end of the spectrum, a trustee almost certainly abuses his discretion by refusing to bring a creditor’s claim that, if successful, would clearly benefit the estate. At the other end, a trustee certainly does not abuse his discretion by refusing to bring a claim that would yield insignificant benefits to the estate. A more difficult situation, however, is when the creditor establishes that its claims, if successful, would offer more than marginal benefits to the estate but not necessarily a windfall. See also In re STN Enters., 779 F.2d at 906 (suggesting that a trustee’s refusal to pursue claims might be unjustified when a creditor (or creditors’ committee) is willing to shoulder the costs of litigation and the fee arrangement imposes no net burden on the bankruptcy estate); William B. Tanner Co. v. United States (In re Automated Business Sys., Inc.), 642 F.2d 200, 201-02 (6th Cir.1981) (holding that a creditor had standing to file an avoidance action where trustee refused to bring suit due to lack of funds). In short, we trust that bankruptcy judges will, in the first instance, refine the contours of when derivative standing is appropriate. At bottom, the determination of whether the trustee unjustifiably refuses to bring a creditor’s proposed claims will require bankruptcy courts to perform a cost-benefit analysis. See In re STN Enters., 779 F.2d at 905. While by no means exhaustive, among the factors the court should consider in conducting this analysis are: (1) “[the] probabilities of legal success and financial recovery in event of success”; (2) the creditor’s proposed fee arrangement; and (3) “the anticipated delay and expense to the bankruptcy estate that the initiation and continuation of litigation will likely produce.” Id. at 905-906. We do not suggest, however, that the bankruptcy court “undertake a mini-trial” in evaluating a creditor’s request for derivative standing. Id. at 905 (citing" }, { "docid": "19110836", "title": "", "text": "is whether Hartford has standing to surcharge Magna’s collateral. I believe it has. Four circuits have adopted this view. See e.g. North County Jeep & Renault, Inc. v. General Elec. Capital Corp. (In re Palomar Truck Corp.), 951 F.2d 229, 232 (9th Cir.1991), cert. denied, 506 U.S. 821, 113 S.Ct. 71, 121 L.Ed.2d 37 (1992); In re Parque Forestal, Inc., 949 F.2d 504, 511 (1st Cir.1991); New Orleans Pub. Serv., Inc. v. First Fed. Sav. & Loan Ass’n (In re Delta Towers, Ltd.), 924 F.2d 74, 77 (5th Cir.1991); Equitable Gas Co. v. Equibank N.A. (In re McKeesport Steel Castings Co.), 799 F.2d 91, 94 (3d Cir.1986). This view is also supported by the leading scholarly work on bankruptcy: The reasoning behind the approach which extends standing to creditors and other claimants is that a secured creditor who received a direct benefit from the rendition of services or provision of goods by an administrative claimant ... should have the collateral charged for that benefit,' regardless of whether the proceeds of the charge are paid to the trustee in reimbursement for the trustee’s prior payment to the claimant, or are paid to the claimant directly. Otherwise, if the trustee does not have available funds to pay the claimant, the trustee has no economic incentive to seek a recovery under section 506(c) with respect to amounts that will be paid over to the claimant. As a result, the secured creditor may obtain a windfall at the expense of the unpaid claimant. 4 Collier on Bankruptcy ¶ 506.05[8] at 506-142-43 (Lawrence P. King ed., 15th ed.1998). The majority view has been in effect since 1986, and I believe that Congress has acquiesced to the majority resolution of the conflict. See Johnson v. Transportation Agency, 480 U.S. 616, 629 n. 7, 107 S.Ct. 1442, 94 L.Ed.2d 615 (1987). Had Congress intended to limit § 506(c) standing to trustees, it could have included the word “only” in the statute. Because it failed to do so and because Congress did not expressly deny § 506(c) standing to administrative claimants, the prudential standing doctrine dictates that this" }, { "docid": "13341640", "title": "", "text": "68 S.Ct. 376, 380, 92 L.Ed. 442 (1948); United States v. Babcock, 530 F.2d 1051, 1053 (D.C.Cir.1976)). See also New York State Higher Educ. Serv. Corp. v. Adamo (In re Adamo), 619 F.2d 216, 222 (2d Cir.), cert. denied, sub nom. Williams v. New York State Higher Educ. Serv. Corp., 449 U.S. 843, 101 S.Ct. 125, 66 L.Ed.2d 52 (1980); Santa Ana Best Plaza, Ltd. v. Best Prods. Co.(In re Best Prods. Co.), 206 B.R. 404, 407 n. 2 (Bankr.E.D.Va.1997) (“Indeed, ‘even within the fluctuating walls of the “plain meaning” fortress, a court should not resolve questions of statutory interpretation so that a particular Bankruptcy Code section conflicts and disturbs the overall purpose and function of the Code.’ ”) (quoting In re R.H. Macy & Co., 170 B.R. 69, 73 (Bankr.S.D.N.Y.1994)). In the present context, the structure and purposes of the Bankruptcy Code as a whole, as well as simple common sense, suggest that the statute should not be interpreted to require the payment of a windfall. “Because the presumption in bankruptcy cases is that the debtor’s limited resources will be equally distributed among his creditors, statutory priorities are narrowly construed.” Trustees of the Amalgamated Ins. Fund, v. McFarlin’s, Inc., 789 F.2d 98, 100 (2nd Cir.1986) (citations omitted). A landlord can receive a windfall in two ways under the billing date approach. First, a windfall can result from a debtor’s postpetition, prerejection payment to a landlord for prepetition services that would otherwise be an unsecured claim. See Best Prods., 206 B.R. 404 (The landlord billed the debtor for six months of taxes as additional rent, including approximately three months of prepetition taxes.); Child World, Inc. v. Campbell/Massachusetts Trust (In re Child World, Inc.), 161 B.R. 571, 575 (S.D.N.Y.1993) (A six month tax bill became due during the postpe-tition, prerejection period, which included taxes for four months prepetition.). This windfall gives the landlord a preference that potentially prejudices both the debtor in its effort to reorganize and other unsecured creditors who may receive a reduced dividend. Second, a windfall can result from a debt- or’s advance payment of rent during the" }, { "docid": "15492982", "title": "", "text": "on the party seeking recovery. See In re Flagstaff Foodservice Corp., 739 F.2d 73, 77 (2d Cir.1984) (“Flagstaff I’’); Brookfield Production Credit Ass’n v. Borron, 738 F.2d 951, 952 (8th Cir.1984). 1. Standing First Federal argues that NOPSI lacks standing to invoke § 506(c) as that section provides that “the trustee” may recover from the collateral. Despite the seemingly unambiguous language, courts have allowed a claimant to use § 506(c) if the trustee or debtor-in-possession refuses to pursue a claim of administrative expenses. See, e.g., In re McKeesport Steel Castings Co., 799 F.2d 91, 94 (3d Cir.1986); In re International Club Enterprises, Inc., 105 B.R. 190, 193 (Bkrtcy.D.R.I.1989); In re World Wines, Ltd., 77 B.R. 653, 658 n. 4 (Bkrtcy.N.D.Ill.1987); see also 3 Collier on Bankruptcy, 11 506.06, at 506-58 n. 7a (15th ed. 1990) (asserting that the better position is to allow a claimant to recover the costs for its services under § 506(c)). Contra In re Ramaker, 117 B.R. 959, 967 (Bkrtcy.N.D.Iowa 1990); In re Interstate Motor Freight System IMFS, Inc., 71 B.R. 741, 745 (Bkrtcy.W.D.Mich.1987). “A contrary position may result in a windfall benefit to the secured creditor to the detriment of a third party.” In re So Good South Potato Chip Co., 116 B.R. 144, 146 (Bkrtcy.E.D.Mo.1990). This Court agrees with the position that the advantages of § 506(c) are not limited to trustees. Thus, NOPSI has standing to use § 506(c), considering that the bankruptcy court noted the debtor-in-possession’s refusal to seek recovery of NOPSI’s utility fees. 2. Direct Benefit First Federal has stipulated that the utility expenses were necessary and reasonable. The only relevant issue, then, is the last element of the test regarding a benefit to the creditor. Courts have construed the benefit element as requiring that the claimant incur the expenses primarily for the benefit of the secured creditor and that the expenses resulted in a quantifiable direct benefit to the secured creditor. In re Cascade Hydraulics & Utility Service, Inc., 815 F.2d 546, 548 (9th Cir.1987); Brookfield Production, 738 F.2d at 952; In re Beker Industries Corp., 89 B.R. 336, 342" }, { "docid": "4005406", "title": "", "text": "799 F.2d at 94. Other Courts of Appeals have essentially relied on In re McKeesport with little analysis except to note that denying standing to an administrative claimant would allow a secured creditor to reap a windfall, an inequitable result. See Boatmen’s, 5 F.3d at 1159; In re Palomar, 951 F.2d at 232; In re Parque Forestal, 949 F.2d at 512; In re Delta Towers, 924 F.2d at 76-77. Thus, In re McKeesport and its progeny have chosen to ignore the plain language of the statute based on two assumptions: (1) that a trustee or debtor in possession often has no incentive to seek recovery of postpetition costs and expenses under § 506(e); and (2) that granting standing to an administrative claimant under § 506(c) is the only means available to prevent a windfall to a secured creditor when the trustee or debtor in possession fads or declines to seek a surcharge under § 506(c). With respect to the incentive of trustees and debtors in possession to seek a surcharge under § 506(e), both owe fiduciary duties to the creditors of the estate. Commodity Futures Trading Comm’n v. Weintraub, 471 U.S. 343, 355-56, 105 S.Ct. 1986, 1994-95, 85 L.Ed.2d 372 (1985). A failure to seek recovery of a qualifying claim under § 506(c) may constitute a breach of those duties. Cf. Yadkin Valley Bank & Trust Co. v. McGee (In re Hutchinson), 5 F.3d 750, 752-53 (4th Cir.1993) (stating that a trustee may be held personally liable for willful and deliberate violations of his fiduciary duties); NBD Park Ridge Bank v. SRJ Enters., Inc. (In re SRJ Enters., Inc.), 151 B.R. 189, 194-95 (Bankr.N.D.Ill.1993) (stating that a debtor in possession breaches its fiduciary duties to the creditors of the estate if it “unjustifiably fails to institute a suit to recover a voidable preference”). In addition, trustees are administrative claimants who are paid from the funds of the estate. See 11 U.S.C.A. §§ 330(a), 503(b)(2), 507(a)(1), 726(a)(1) (West 1993). If there are insufficient funds in the estate to pay all of the allowed administrative expenses, the trustee will not be paid" }, { "docid": "1886513", "title": "", "text": "former case, it is premature to enter a discharge or approve the final report and account. In the latter, the debtor is entitled to a discharge even though approval of a final report and account must await the trustee’s corrective action. This might require, in instances where the trustee has failed to disburse funds on hand to creditors, that he distribute those funds. In a case where the trustee pays a dividend in excess of what the plan requires, the trustee must recover the overpayment and then redistribute it to the correct creditor(s) or refund it to the debtor. If the trustee cannot recover the overpayment, he may have to dig into his own pocket and make good the misdirected plan dividend. See Nash v. Kester (In re Nash), 765 F.2d 1410, 1415 (9th Cir.1985). In the hopefully rare instance where a debtor has paid the amounts required by the plan and fully funded the promised dividends but the trustee has not paid those dividends, there is no need to delay the debtor’s discharge until the trustee has taken the appropriate corrective action. One way or another, the trustee will pay the dividends required by the plan. In this case, the error made by the trustee in administering plan payments came to light before the trustee had filed and served a proposed final report and account. Even without the final report and account, however, it is clear that all plan payments have been made by the debtors and were sufficient to fund the dividends promised by the plan. The trustee collected too much money from the debtors and the overpayment must be recovered and returned to them. In Avery, this court acknowledged that “in appropriate circumstances,” it would enter a discharge prior to approval of a final report and account. See In re Avery, 272 B.R. at 731. This case presents an appropriate circumstance. The debtors’ motion was served on the trustee and all creditors. It is supported by evidence establishing that they have completed their plan payments and that those payments were sufficient to fund the dividends promised to" } ]

[ { "docid": "22607007", "title": "", "text": "new trial at which he was acquitted. To argue, in this situation, that [petitioner’s] conviction should nevertheless stand may be to place too great a strain upon the [Delli Paoli] rule — at least, where, as here, the other evidence against [petitioner] is not strong.” We have concluded, however, that Delli Paoli should be overruled. We hold that, because of the substantial risk that the jury, despite instructions to the contrary, looked to the incriminating extrajudicial statements in determining petitioner’s guilt, admission of Evans’ confession in this joint trial violated petitioner’s right of cross-examination secured by the Confrontation Clause of the Sixth Amendment. We therefore overrule Delli Paoli and reverse. The basic premise of Delli Paoli was that it is “reasonably possible for the jury to follow” sufficiently clear instructions to disregard the confessor’s extrajudicial statement that his codefendant participated with him in committing the crime. 352 U. S., at 239. If it were true that the jury disregarded the reference to the co-defendant, no question would arise under the Confrontation Clause, because by hypothesis the case is treated as if the confessor made no statement inculpating the nonconfessor. But since Delli Paoli was decided this Court has effectively repudiated its basic premise. Before discussing this, we pause to observe that in Pointer v. Texas, 380 U. S. 400, we confirmed “that the right of cross-examination is included in the right of an accused in a criminal case to confront the witnesses against him” secured by the Sixth Amendment, id., at 404; “a major reason underlying the constitutional confrontation rule is to give a defendant charged with crime an opportunity to cross-examine the witnesses against him.” Id., at 406-407. We applied Pointer in Douglas v. Alabama, 380 U. S. 415, in circumstances analogous to those in the present case. There two persons, Loyd and Douglas, accused of assault with intent to murder, were tried separately. Loyd was tried first and found guilty. At Douglas’ trial the State called Loyd as a witness against him. An appeal was pending from Loyd’s conviction and Loyd invoked the privilege against self-incrimination and refused" } ]

[ { "docid": "1704656", "title": "", "text": "that our cases consistently have viewed an accomplice’s statements that shift or spread the blame to a criminal defendant as falling outside the realm of those ‘hearsay exception[s] [that are] so trustworthy that adversarial testing can be expected to add little to [the statements’] reliability.’ ” Id. at 133, 119 S.Ct. 1887 (quoting White v. Illinois, 502 U.S. 346, 357, 112 S.Ct. 736, 116 L.Ed.2d 848 (1992)) (emphasis added) (alterations in original); see also Lilly, id. at 131, 119 S.Ct. 1887 (citing Douglas v. Alabama, 380 U.S. 415, 85 S.Ct. 1074, 13 L.Ed.2d 934 (1965)). In our opinion in Bulls’ case, we spoke to whether Lilly was mandated by earlier precedent, and addressed substantially the same cases referenced by the Lilly Court: The Sixth Amendment provides that “[i]n all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him.” That guarantee includes the right to cross-examine witnesses. See Pointer v. Texas, 380 U.S. 400, 404, 85 S.Ct. 1065, 13 L.Ed.2d 923 (1965). The Supreme Court has repeatedly held that a non-testifying co-defendant’s statements that implicate a defendant are presumptively unreliable and their admission violates the Confrontation Clause. See Douglas v. Alabama, 380 U.S. 415, 419, 85 S.Ct. 1074, 13 L.Ed.2d 934 (1965); see also Bruton v. United States, 391 U.S. 123, 126, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968) (holding that the admission of non-testifying co-defendant’s confession incriminating defendant, even with jury instructions to consider confession only against the co-defendant, violates the Confrontation Clause). The Supreme Court has noted that since Douglas, it “has spoken with one voice in declaring presumptively unreliable accomplices’ confessions that incriminate defendants.” Lee v. Illinois, 476 U.S. 530, 541, 106 S.Ct. 2056, 90 L.Ed.2d 514 (1986); see also Lilly, 527 U.S. at 131, 119 S.Ct. 1887; Cruz v. New York, 481 U.S. 186, 193, 107 S.Ct. 1714, 95 L.Ed.2d 162 (1987). To overcome this presumption of unreliability and introduce such statements into evidence, the prosecution must show that the statements bear “adequate indicia of reliability.” Roberts, 448 U.S. at 66, 100 S.Ct. 2531; United States v. McCleskey, 228" }, { "docid": "5595325", "title": "", "text": "of his statements violated their sixth amendment right of confrontation and required a severance. They rely primarily on Bruton v. United States, supra, which held that in a joint trial, where the confession of a defendant was admitted only against him and he did not testify, his co-defendant’s constitutional rights were not sufficiently protected by a cautionary instruction. The Court reasoned: because of the substantial risk that the jury, despite instructions to the contrary, looked to the incriminating extrajudicial statements in determining petitioner’s guilt, admission of [the] confession in this joint trial violated petitioner’s right of cross-examination secured by the Confrontation Clause of the Sixth Amendment. 391 U.S. at 126, 88 S.Ct. at 1622. The Court focused on the dangers raised where the powerfully incriminating extrajudicial statements of a code- fendant, who stands accused side-by-side with the defendant, are deliberately spread before the jury in a joint trial. Not only are the incriminations devastating to the defendant but their credibility is inevitably suspect, . The unreliability of such evidence is intolerably compounded when the alleged accomplice, as here, does not testify and cannot be tested by cross-examination. Id., at 135-136, 88 S.Ct. at 1628. Salters’ statements were incriminating, and he availed himself of his fifth amendment right not to testify. But, unlike the confession in Bruton, Salters’ statements were admissible against all of the defendants under a generally recognized exception to the hearsay rule. Significantly, Bruton expressly reserved this issue: There is not before us, therefore, any recognized exception to the hearsay rule insofar as petitioner is concerned and we intimate no view whatever that such exceptions necessarily raise questions under the Confrontation Clause. Id., at 128 n. 3, 88 S.Ct. at 1624. Thus, Bruton does not alone resolve this issue. In California v. Green, 399 U.S. 149, 90 S.Ct. 1930, 26 L.Ed.2d 489 (1970), the Court addressed the constitutional issue presented by the admission of hearsay in a criminal trial, and sustained a state statute which permitted the introduction of prior inconsistent extrajudicial statements as substantive evidence in a criminal trial. The Court explained : While it may readily" }, { "docid": "1760060", "title": "", "text": "discretion by admitting the testimony at issue. We note that, contrary to Watkins, this case does not present a Bruton issue, because this was not a joint trial, the statements at issue were made prior to arrest, and the statements were not made to the police, (citations omitted). The Sixth Amendment confrontation clause is applicable to the states under the Fourteenth Amendment due process clause. A primary interest secured by the confrontation clause is the right to cross-examination. Douglas v. Alabama, 380 U.S. 415, 85 S.Ct. 1074, 13 L.Ed.2d 934 (1965). In Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968), the Supreme Court ruled that the introduction of a nontestifying co-defendant’s confession to police at a joint trial violated the defendant’s right to confrontation, even though the trial court instructed the jury not to consider the co-defendant’s confession as evidence against defendant Bruton in their deliberations as to his guilt or innocence. The Supreme Court noted that under traditional rules of evidence, the admission of a co-defendant’s confession inculpating the defendant would be inadmissible against the accused as hearsay. Bruton v. United States, supra at 128, fn. 3, 88 S.Ct. 1620 fn. 3. The Supreme Court noted that incriminations made by an accomplice are suspect given the recognized motivation to shift blame. Bruton v. United States, supra at 135, 88 S.Ct. 1620. Courts have also found a defendant’s right of confrontation violated where a co-defendant’s confession inculpating the accused is introduced against him in a separate trial. Goodwin v. Page, 418 F.2d 867 (10th Cir.1969). The Sixth Amendment protections are not so broad, however, as to exclude the admission of certain hearsay statements against an accused despite his inability to confront the declarant at trial. Certain types of hearsay are admissible if the declarant is unavailable and the statement bears adequate indicia of reliability. Latine v. Mann, 25 F.3d 1162 (2nd Cir.1994); cert. den. 514 U.S. 1006, 115 S.Ct. 1319, 131 L.Ed.2d 200 (1995). As the Supreme Court recently noted in Lilly v. Virginia, 527 U.S. 116, 119 S.Ct. 1887, 144 L.Ed.2d 117 (1999)," }, { "docid": "10446817", "title": "", "text": "claim that he was coerced into making his confession and that he simply parrotted his accomplice’s confession. The Supreme Court approved the use of the accomplice’s confession, not to implicate the defendant, but to demonstrate that the defendant’s confession contained details not present in his accomplice’s confession. Thus, the Supreme Court recognized that when there is a non-hearsay purpose to be served, a confession of another person may be admissible. The State’s reliance on Street is undercut by the absence of any relevant non-hearsay purpose for Michael Gaines’ confession. The placing of Michael Gaines’ statement before the jury is completely irrelevant to Petitioner’s comments to Dwyer concerning his telephone call. Further, in Street, the jury was instructed by the trial judge that it should not consider the confession by the accomplice as true. No such instruction was given during Petitioner’s trial. We believe this case presents a clear confrontation problem under Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968). In Bruton, the Supreme Court held that because of the substantial risk that the jury would look to the incriminating extrajudicial statements made by a co-defendant in determining the defendant’s guilt, the admission of the co-defendant’s confession into evidence violated the defendant’s right of cross-examination secured by the confrontation clause of the sixth amendment. See also Douglas v. Alabama, 380 U.S. 415, 85 S.Ct. 1074, 13 L.Ed.2d 934 (1965). In this case, the jury heard a hearsay statement implicating Petitioner in the murder and naming him as the trigger man. The jury could certainly have considered such a statement as true, particularly in the absence of any limiting instructions. Thus, we find that Dwyer’s statement concerning a confession by Michael Gaines which named Petitioner as the killer violated Petitioner’s rights under the sixth amendment. Such a finding does not end our inquiry, however. We must now determine whether the constitutional violation was harmless. See Brown v. United States, 411 U.S. 223, 93 S.Ct. 1565, 36 L.Ed.2d 208 (1973); Harrington v. California, 395 U.S. 250, 89 S.Ct. 1726, 23 L.Ed.2d 284 (1969); Chapman v. California, 386" }, { "docid": "2670010", "title": "", "text": "admission of inadmissible statements can be considered reversible error. As the Supreme Court has stated, “[a] defendant is entitled to a fair trial but not a perfect one.” Lutwak v. United States, 344 U.S. 604, 619, 73 S.Ct. 481, 490, 97 L.Ed. 593 (1953). Parran argues that in this case the admission into evidence against him of the powerfully incriminating hearsay, in light of the little other evidence against him, violated his right to confrontation as secured by the Sixth Amendment. “The Sixth Amendment’s right of an accused to confront the witnesses against him ... is a fundamental right....” Dutton v. Evans, 400 U.S. at 79, 91 S.Ct. at 215, quoting Pointer v. Texas, 380 U.S. 400, 403, 85 S.Ct. 1065, 1067-1068, 13 L.Ed.2d 923 (1965). “[T]he right of cross-examination is included in the right of an accused in a criminal case to confront the witnesses against him.” Pointer v. Texas, 380 U.S. at 404, 85 S.Ct. at 1068. In Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968), petitioner and co-defendants were tried jointly for armed postal robbery. A postal inspector testified that one of the co-defendants had confessed that he and petitioner had committed the crime. The district court admitted this evidence of the co-defendant’s confession against him, but gave clear and concise instructions to the jury to disregard this evidence in deciding the other co-defendant’s guilt or innocence. Despite this cautionary instruction, the Supreme Court found the risk of prejudice resulting from the admission of the confession too great because “the powerfully incriminating extrajudicial statements of a codefendant, who stands accused side-by-side with the defendant, are deliberately spread before the jury in a joint trial.” Id. at 135-36, 88 S.Ct. at 1628. Consequently, the court held the admission of hearsay evidence of the co-defendant’s confession to be reversible error. In this case there is much more than the mere risk of prejudice found so serious in Brutton. There is actual prejudice. Here, the powerfully incriminating hearsay statement was admitted into evidence against Parran and offered again by the government in its closing" }, { "docid": "23274645", "title": "", "text": "present when Roberson, Rose and Hemphill departed for the bank. Furthermore, Kelley’s declaration against his penal interest implicated him directly in the scheme. Roberson testified that Kelley told him that “ . . . he and Theopolis [Wilson] had a ‘B’ [meaning bank] set-up in Moberly.” While this statement would arguably be inadmissible hearsay in the absence of other corroborating evidence, we feel the circumstances above (e. g. Kelley’s association with Wilson) indicates its trustworthiness. In short, our review of the record convinces us that the independently admissible evidence was sufficient to link Wilson, Simmons and Kelley to the witness Roberson and the unlawful association. Therefore, Roberson’s testimony as to the extra-judicial statements made in furtherance of that unlawful associa- ' tion was admissible. II. CONFRONTATION At trial, Roberson was permitted to relate a statement made by defendant Kelley that Kelley and defendant Wilson had a bank job set up in Moberly. Kelley, the declarant, was protected by the privilege against self-incrimination and did not testify at trial. Relying primarily on Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968), Wilson argues that the declarant’s unavailability for cross-examination violated his sixth amendment right of confrontation. We disagree. In Bruton, a confession implicating both petitioner and a codefendant was admitted subject to a cautionary instruction warning the jury that the confession was inadmissible hearsay against ■ the petitioner. The Supreme Court held this to be a violation of the confrontation clause, notwithstanding the cautionary instruction, because a substantial risk existed that the jury would consider the confession in determining the petitioner’s guilt. However Bruton involved no recognized exception to the hearsay rule. Indeed it has become well settled that the Bruton rule is limited to circumstances where the out-of-court statements are inadmissible hearsay. This case involves a recognized exception to the hearsay rule and is therefore controlled by Dutton v. Evans, 400 U.S. 74, 91 S.Ct. 210, 27 L.Ed.2d 213 (1970). In Dutton, an extra-judicial statement of an alleged accomplice was admitted under a Georgia statute which pérmitted admission of such statements during the concealment phase" }, { "docid": "1704657", "title": "", "text": "that a non-testifying co-defendant’s statements that implicate a defendant are presumptively unreliable and their admission violates the Confrontation Clause. See Douglas v. Alabama, 380 U.S. 415, 419, 85 S.Ct. 1074, 13 L.Ed.2d 934 (1965); see also Bruton v. United States, 391 U.S. 123, 126, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968) (holding that the admission of non-testifying co-defendant’s confession incriminating defendant, even with jury instructions to consider confession only against the co-defendant, violates the Confrontation Clause). The Supreme Court has noted that since Douglas, it “has spoken with one voice in declaring presumptively unreliable accomplices’ confessions that incriminate defendants.” Lee v. Illinois, 476 U.S. 530, 541, 106 S.Ct. 2056, 90 L.Ed.2d 514 (1986); see also Lilly, 527 U.S. at 131, 119 S.Ct. 1887; Cruz v. New York, 481 U.S. 186, 193, 107 S.Ct. 1714, 95 L.Ed.2d 162 (1987). To overcome this presumption of unreliability and introduce such statements into evidence, the prosecution must show that the statements bear “adequate indicia of reliability.” Roberts, 448 U.S. at 66, 100 S.Ct. 2531; United States v. McCleskey, 228 F.3d 640, 644 (6th Cir.2000) (“[I]t is clear that Supreme Court Confrontation Clause jurisprudence does not permit the introduction of hearsay declarations uttered by accomplices in law enforcement custody that inculpate a defendant, absent further ‘particularized guarantees’ of the declaration’s trustworthiness.”). Bulls v. Jones, 274 F.3d 329, 333-34 (6th Cir.2001). In Bulls, the State had conceded it was constitutional error for the trial court to enter Hill’s statement against Bulls because Hill’s statement shifted a greater portion of the blame to Bulls, and thus was not against Hill’s penal interest. The only issue before us in Bulls was whether the error was harmless. Accordingly, our discussion in Bulls of whether the principles espoused in Lilly were previously clearly established was dicta. Today, we squarely face the issue whether Lilly was pre-ordained by earlier clearly established Supreme Court law for the first time. Therefore, we find it necessary to discuss the facts of the Supreme Court cases cited in Lilly and Bulls in further detail. In Douglas v. Alabama, 380 U.S. 415, 85 S.Ct. 1074, 13" }, { "docid": "11998236", "title": "", "text": "testified that a codefendant, Evans, had confessed to him that Bruton and Evans had committed the robbery; Evans did not testify. The trial court instructed the jury to disregard Evan’s confession in considering Bruton’s culpability. The Supreme Court found this insufficient, holding that “in the context of a joint trial we cannot accept limiting instructions as an adequate substitute for petitioner’s constitutional right of cross-examination.” Id. at 137, 88 S.Ct. at 1628. The rationale of the decision was clearly expressed: “The risk of prejudice in petitioner’s case was even more serious than in Douglas [Douglas v. Alabama, 380 U.S. 15, 85 S.Ct. 1074, 13 L.Ed.2d 934 (1957)] because . . . the powerfully incriminating extrajudicial statements of a codefendant, who stands accused side-by-side with the defendant, are deliberately spread before the jury in a joint trial.” Id. at 127, 135-136, 88 S.Ct. at 1623, 1628. The evil which the sixth amendment was designed to prevent is illustrated in Douglas, where the prosecutor read a document purporting to be an accomplice’s confession which incriminated the defendant. The Supreme Court noted that the accomplice’s assertion of his right against compulsory self-incrimination “created a situation in which the jury might improperly infer both that the statement had been made and that it was true.” 380 U.S. at 419, 85 S.Ct. at 1077. Since the prosecutor was not a witness, the inference that the accomplice made the statement could not be tested by cross-examination. Similarly, the accomplice could not be cross-examined on a statement imputed to him. Id. The right of cross-examination, however, is not absolute. There is no violation of sixth amendment rights where the testimony is sufficiently clothed with “indicia of reliability which have been widely viewed as determinative of whether a statement may be placed before the jury though there is no confrontation of the declarant.” Dutton v. Evans, 400 U.S. 74, 89, 91 S.Ct. 210, 220, 27 L.Ed.2d 213. In Dutton, which also involved the coconspiracy exception to the hearsay rule, the Supreme Court upheld the trial court’s admission of testimony by a fellow inmate of a codefendant who did" }, { "docid": "14431312", "title": "", "text": "commands, not that the evidence be reliable, but that the reliability be assessed in a particular manner: by testing in the crucible of cross-examination.” Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 1370, 158 L.Ed.2d 177 (2004). Indeed, the “unpardonable vice” of the Ohio v. Roberts test that led to its demise in Crawford was “its demonstrated capacity to admit core testimonial statements that the Confrontation Clause plainly meant to exclude.” Id. at 1371. In this case, Brown’s statement is one that the Confrontation Clause plainly meant to exclude. “The Bruton line of cases deals with situations in which the confession of one defendant is offered at a joint trial where the statement is redacted to omit any explicit reference to the co-defendant and the jury is instructed to consider the statement only against the declarant.” United States v. Jones, 371 F.3d 363, 368-69 (7th Cir.2004); see also Workman, 860 F.2d at 143. The judicial remedy of redaction was fashioned to fulfill a specific purpose, namely to balance a defendant’s Confrontation Clause rights with the judicial interest in trying co-defendants jointly. The Sixth Amendment poses no barrier to the admissibility of a confession against the defendant who made the incriminating statement, when redaction, coupled with a limiting instruction from the court, protects the Confrontation Clause rights of a co-defendant at a joint trial. That is not the case here. This Court can find no distinction between the facts in Workman that led the Fourth Circuit to reject the application of Bruton, an application the Government now advances, and the facts in the case at hand. Since Brown has not been charged with a crime and will obviously not be present at the trial, her statement is apparently intended for use against the only two remaining defendants, Defendant Jordan and Defendant Gordon. The Supreme Court has repeatedly stated that statements of non-testifying accomplices, like Brown’s, that implicate defendants are presumptively unreliable and their admission violates the Confrontation Clause. See Douglas v. Alabama, 380 U.S. 415, 419, 85 S.Ct. 1074, 13 L.Ed.2d 934 (1965); Bruton, 391 U.S. at 126, 88 S.Ct." }, { "docid": "10446815", "title": "", "text": "Q Please continue, officer. A: I also called to his attention that we did in fact have the murder weapon in custody and that his brother had given us an accounting of the whole sequence of events. Tr. at 648. Petitioner did not comment on or make any statement concerning Dwyer’s accusation. The State’s ostensible purpose at trial for permitting Dwyer to testify to Michael Gaines’ out-of-court assertion was that the testimony was “foundational.” Although Dwyer’s testimony was admitted by the trial judge apparently on this basis, we are baffled by the State’s position at trial. If by that argument the State meant that the hearsay statement was appropriate because Petitioner later adopted or approved it in his response and thus Dwyer’s statement became attributable to Petitioner, the State is simply wrong. Petitioner did not adopt or approve any of Dwyer’s statements except to admit by inference that he had in fact spoken on the telephone with his mother and brother in December (an admission which had nothing whatsoever to do with the confession of Michael Gaines). See Tr. at 654. Petitioner made no comment of any kind in response to Dwyer’s statement concerning Michael Gaines’ statements. Before this court the State has argued that Dwyer’s statement was not offered for the truth of the matter contained in it — namely, that Michael Gaines had identified Petitioner as the killer — but only to show that Dwyer in fact made the statement (whether true or false) to show the circumstances under which Gaines’ later admission about talking on the telephone had been made. In support of this position, the State relies on Tennessee v. Street, 471 U.S. 409, 105 S.Ct. 2078, 85 L.Ed.2d 425 (1985), reliance which can most charitably be described as a misunderstanding of the holding in Street and of the hearsay rule. It is of course true, as recognized in Street, that a confession of a third party implicating the defendant can be introduced at the trial of the defendant for non-hearsay purposes. In Street, for instance, the confession of the accomplice was introduced to rebut Street’s" }, { "docid": "10446816", "title": "", "text": "Michael Gaines). See Tr. at 654. Petitioner made no comment of any kind in response to Dwyer’s statement concerning Michael Gaines’ statements. Before this court the State has argued that Dwyer’s statement was not offered for the truth of the matter contained in it — namely, that Michael Gaines had identified Petitioner as the killer — but only to show that Dwyer in fact made the statement (whether true or false) to show the circumstances under which Gaines’ later admission about talking on the telephone had been made. In support of this position, the State relies on Tennessee v. Street, 471 U.S. 409, 105 S.Ct. 2078, 85 L.Ed.2d 425 (1985), reliance which can most charitably be described as a misunderstanding of the holding in Street and of the hearsay rule. It is of course true, as recognized in Street, that a confession of a third party implicating the defendant can be introduced at the trial of the defendant for non-hearsay purposes. In Street, for instance, the confession of the accomplice was introduced to rebut Street’s claim that he was coerced into making his confession and that he simply parrotted his accomplice’s confession. The Supreme Court approved the use of the accomplice’s confession, not to implicate the defendant, but to demonstrate that the defendant’s confession contained details not present in his accomplice’s confession. Thus, the Supreme Court recognized that when there is a non-hearsay purpose to be served, a confession of another person may be admissible. The State’s reliance on Street is undercut by the absence of any relevant non-hearsay purpose for Michael Gaines’ confession. The placing of Michael Gaines’ statement before the jury is completely irrelevant to Petitioner’s comments to Dwyer concerning his telephone call. Further, in Street, the jury was instructed by the trial judge that it should not consider the confession by the accomplice as true. No such instruction was given during Petitioner’s trial. We believe this case presents a clear confrontation problem under Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968). In Bruton, the Supreme Court held that because of the" }, { "docid": "23658966", "title": "", "text": "purposes of the against-penal-interest exception to the hearsay rule, Fed.R.Ev. 804(b)(3). I Before reaching the facts of the present case, we deem it advisable to set forth the constitutional and legislative context of the problem before us. In Douglas v. Alabama, 380 U.S. 415, 85 S.Ct. 1074, 13 L.Ed.2d 934 (1965), the Supreme Court reversed a conviction in circumstances similar to the present ones, because the substance of a custodial confession of a separately tried codefendant, which directly implicated the accused in the crime, was admitted into evidence in the guise of cross-examination of a hostile witness. (The codefendant had asserted his constitutional privilege to not answer any questions concerning the crime.) In doing so, the Court held that the confrontation clause of the sixth amendment prevented the admission of such evidence — the reliability of its incriminating substance could only be insured by a cross-examination of the declarant designed to illuminate the accuracy of the statements insofar as they concerned the accused then on trial. For similar reasons, in Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968), the Court held that the accused’s constitutional right to cross-examination was violated by the admission into evidence of the custodial confession of a codefendant, even though the trial court had instructed the jury that the confession had to be disregarded in the jury’s determination of the accused’s guilt or innocence. The issue before us concerns the reliability as evidence against an accused of a code-fendant’s custodial confession implicating the accused in the crime. With regard thereto, the dissent of Mr. Justice White for the two dissenters is illuminating. The dissenters felt that the instruction to the jury — to disregard the codefendant’s confession in determining the defendant’s guilt or innocence — was sufficient to prevent prejudice because the jury could easily understand the obvious inherent unreliability of a custodial confession of an accomplice insofar as it implicates an accused in the commission of a crime: As to the defendant, the confession of the codefendant is wholly inadmissible. It is hearsay, subject to all the dangers of" }, { "docid": "23274646", "title": "", "text": "391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968), Wilson argues that the declarant’s unavailability for cross-examination violated his sixth amendment right of confrontation. We disagree. In Bruton, a confession implicating both petitioner and a codefendant was admitted subject to a cautionary instruction warning the jury that the confession was inadmissible hearsay against ■ the petitioner. The Supreme Court held this to be a violation of the confrontation clause, notwithstanding the cautionary instruction, because a substantial risk existed that the jury would consider the confession in determining the petitioner’s guilt. However Bruton involved no recognized exception to the hearsay rule. Indeed it has become well settled that the Bruton rule is limited to circumstances where the out-of-court statements are inadmissible hearsay. This case involves a recognized exception to the hearsay rule and is therefore controlled by Dutton v. Evans, 400 U.S. 74, 91 S.Ct. 210, 27 L.Ed.2d 213 (1970). In Dutton, an extra-judicial statement of an alleged accomplice was admitted under a Georgia statute which pérmitted admission of such statements during the concealment phase of a conspiracy. The Supreme Court held that admission of the statement did not violate Evans’ right of confrontation because the statement bore traditional indicia of reliability and was neither crucial nor devastating. We construe Dutton as requiring a case-by-case analysis in determining whether the application of an exception to the hearsay rule complies with the confrontation clause. The relevant factual inquiry is whether, under the circumstances, the unavailability of the declarant for cross-examination deprived the jury of a satisfactory basis for evaluating the truth of the extrajudicial declaration. United States v. Adams, 446 F.2d 681, 683 (9th Cir.), cert. denied, 404 U.S. 943, 92 S.Ct. 294, 30 L.Ed.2d 257 (1971); see also, Dutton v. Evans, supra, 400 U.S. at 89, 91 S.Ct. 210; United States v. Baxter, 492 F.2d 150, 177 (9th Cir. 1973), cert. denied, 416 U.S. 940, 94 S.Ct. 1945, 40 L.Ed.2d 292 (1974). Here, under the standard enunciated above, the admission of Kelley’s statement did not violate Wilson’s right of confrontation. Kelley’s statement was certainly a declaration against his penal interest;" }, { "docid": "10446818", "title": "", "text": "substantial risk that the jury would look to the incriminating extrajudicial statements made by a co-defendant in determining the defendant’s guilt, the admission of the co-defendant’s confession into evidence violated the defendant’s right of cross-examination secured by the confrontation clause of the sixth amendment. See also Douglas v. Alabama, 380 U.S. 415, 85 S.Ct. 1074, 13 L.Ed.2d 934 (1965). In this case, the jury heard a hearsay statement implicating Petitioner in the murder and naming him as the trigger man. The jury could certainly have considered such a statement as true, particularly in the absence of any limiting instructions. Thus, we find that Dwyer’s statement concerning a confession by Michael Gaines which named Petitioner as the killer violated Petitioner’s rights under the sixth amendment. Such a finding does not end our inquiry, however. We must now determine whether the constitutional violation was harmless. See Brown v. United States, 411 U.S. 223, 93 S.Ct. 1565, 36 L.Ed.2d 208 (1973); Harrington v. California, 395 U.S. 250, 89 S.Ct. 1726, 23 L.Ed.2d 284 (1969); Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967). Initially, we note that Dwyer’s statement about Michael Gaines’ confession which implicated Petitioner was a single statement in the course of a trial which lasted many days. After the statement was only partially completed, it was interrupted by an objection, and when the testimony continued, the statement was not referred to again. Neither the prosecution nor the defense counsel ever questioned any other witness about the statement, it was ignored during the cross-examination of Dwyer, and neither side discussed it or even mentioned it during closing argument. Secondly, quite apart from the inadmissible statement by Dwyer and contrary to Petitioner’s assertions in his briefs, there was independent evidence not only that Petitioner participated in the murder of two people, but in fact that he was their killer. That evidence was received from an eyewitness whose credibility was substantially unimpeached at trial. Lenious Thomas testified to the circumstances leading up to the murders and told the jury that he had seen Petitioner with a gun. The testimony" }, { "docid": "1690713", "title": "", "text": "this case. Our analysis is therefore confined to the question of whether the appeals court unreasonably applied clearly established federal law when it determined that the violation of Bulls’s Confrontation Clause rights constituted harmless error. III. A. We first conclude- that the Michigan Court of Appeals’s determination that the admission of Hill’s statements violated the Confrontation Clause was a reasonable application of clearly established federal law. Michigan does not dispute that a confrontation clause error occurred, and our analysis of this preliminary issue will therefore be brief. The Sixth Amendment provides that “[i]n all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him.” That guarantee includes the right to cross-examine witnesses. See Pointer v. Texas, 380 U.S. 400, 404, 85 S.Ct. 1065, 13 L.Ed.2d 923 (1965). The Supreme Court has repeatedly held that a non-testifying co-defendant’s statements that implicate a defendant are presumptively unreliable and their admission violates the Confrontation Clause. See Douglas v. Alabama, 380 U.S. 415, 419, 85 S.Ct. 1074, 13 L.Ed.2d 934 (1965); see also Bruton v. United States, 391 U.S. 123, 126, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968) (holding that the admission of non-testifying co-defendant’s confession incriminating defendant, even with jury instructions to consider confession only against the co-defendant, violates the Confrontation Clause). The Supreme Court has noted that since Douglas, it “has spoken with one voice in declaring presumptively unreliable accomplices’ confessions that incriminate defendants.” Lee v. Illinois, 476 U.S. 530, 541, 106 S.Ct. 2056, 90 L.Ed.2d 514 (1986); see also Lilly v. Virginia, 527 U.S. 116, 131, 119 S.Ct. 1887, 144 L.Ed.2d 117 (1999); Cruz v. New York, 481 U.S. 186, 193, 107 S.Ct. 1714, 95 L.Ed.2d 162 (1987). To overcome this presumption of unreliability and introduce such statements into evidence, the prosecution must show that the statements bear “adequate indicia of reliability.” Ohio v. Roberts, 448 U.S. 56, 66, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980); United States v. McCleskey, 228 F.3d 640, 644 (6th Cir.2000) (“[I]t is clear that Supreme Court Confrontation Clause jurisprudence does not permit the introduction of hearsay declarations uttered" }, { "docid": "1760059", "title": "", "text": "precedent controlling those issues, then this Court must determine whether the state court decision on those issues constituted an unreasonable application of federal law as established by the Supreme Court. III. Discussion A. Claim # 1. Petitioner first claims that his right to confrontation under the Sixth Amendment was violated by admission of extrajudicial statements made by the co-defendant to various civilian witnesses. The trial court allowed Davis’ admissions into evidence, ruling that they were statements against penal interest. On appeal, the Michigan Court of Appeals agreed: We have examined the record and we believe that the statements at issue fell squarely within the statement against penal interest exception to the hearsay rule, MRE 804(b)(3). We are satisfied that Davis was “unavailable” within the meaning of the court rule, and that his statements were truly against his penal interests. Further, the content of the statements and the circumstances under which the statements were made provided sufficient indicia of reliability so as to survive defendant’s confrontation clause challenge. Therefore, the trial court did not abuse its discretion by admitting the testimony at issue. We note that, contrary to Watkins, this case does not present a Bruton issue, because this was not a joint trial, the statements at issue were made prior to arrest, and the statements were not made to the police, (citations omitted). The Sixth Amendment confrontation clause is applicable to the states under the Fourteenth Amendment due process clause. A primary interest secured by the confrontation clause is the right to cross-examination. Douglas v. Alabama, 380 U.S. 415, 85 S.Ct. 1074, 13 L.Ed.2d 934 (1965). In Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968), the Supreme Court ruled that the introduction of a nontestifying co-defendant’s confession to police at a joint trial violated the defendant’s right to confrontation, even though the trial court instructed the jury not to consider the co-defendant’s confession as evidence against defendant Bruton in their deliberations as to his guilt or innocence. The Supreme Court noted that under traditional rules of evidence, the admission of a co-defendant’s confession inculpating" }, { "docid": "18337062", "title": "", "text": "reversal on the ground that Pepper’s damaging testimony should have been excluded, either because an adequate predicate for its admission had not been laid, or because the statements testified to (Russo’s) were made after the alleged conspiracy had terminated. In the motion to vacate now before us, however, Gray argues first that the trial court’s failure to grant him a severance was an abuse of discretion, and that the admission of Russo’s out-of-court statement implicating Gray amounted to a violation of Gray’s Sixth Amendment right to confront the witnesses against him. The government responds, and we agree, that the question of severance does not ordinarily constitute error of significant magnitude to justify vacating a sentence under 28 U.S.C.A. § 2255. However, Bruton demonstrates that under circumstances like those of the case before us, the issue is no longer simply a question of the discretion of the trial judge in refusing a severance. Rather, the issue is focused on what takes place during such a non-severed trial. On that approach, the receipt of this out-of-court evidence over timely objection orbits to a constitutional apogee within the thrust of § 2255. The situation in Bruton was basically identical with that presented here. The complaining defendant there was convicted at a joint trial in which a co-defendant’s out-of-court confession inculpating the defendant was admitted, and the jury was given limiting instructions that this confession was to be disregarded in determining the guilt or innocence of the defendant. Quite aware that it was reaching factual-psychological judgments contrary to its earlier, but recent, Delli Paoli v. United States, 1957, 352 U.S. 232, 77 S.Ct. 294, 1 L.Ed.2d 278, the Supreme Court held that “because of the substantial risk that the jury, despite instructions to the contrary, looked to the incriminating extrajudicial statements in determining petitioner’s guilt, admission of [the co-defendant’s] confession in this joint trial violated petitioner’s right of cross-examination secured by the Confrontation Clause of the Sixth Amendment”. 391 U.S. at 126, 88 S.Ct. at 1622, 20 L.Ed.2d at 479. If true in Bruton, it is equally true in this case that “the introduction" }, { "docid": "22635135", "title": "", "text": "traditionally been viewed with special suspicion. Due to his strong motivation to implicate the defendant and to exonerate himself, a codefendant’s statements about what the defendant said or did are less credible than ordinary hearsay evidence.” Bruton v. United States, 391 U. S., at 141 (White, J., dissenting) (citations omitted). Thus, in Douglas v. Alabama, 380 U. S. 415 (1965), we reversed a conviction because a confession purportedly made by the defendant’s accomplice was read to the jury by the prosecutor. Because the accomplice in that case, while called to the witness stand, invoked his privilege against self-incrimination and refused to answer questions put to him, we held that the defendant’s “inability to cross-examine [the accomplice] as to the alleged confession plainly denied him the right of cross-examination secured by the Confrontation Clause.” Id., at 419. This holding, on which the Court was unanimously agreed, was premised on the basic understanding that when one person accuses another of a crime under circumstances in which the declarant stands to gain by inculpating another, the accusation is presumptively suspect and must be subjected to the scrutiny of cross-examination. Over the years since Douglas, the Court has spoken with one voice in declaring presumptively unreliable accomplices’ confessions that incriminate defendants. Even Justice Harlan, who was generally averse to what he regarded as an expansive reading of the confrontation right, stated that he “would be prepared to hold as a matter of due process that a confession of an accomplice resulting from formal police interrogation cannot be introduced as evidence of the guilt of an accused, absent some circumstance indicating authorization or adoption.” Dutton v. Evans, 400 U. S. 74, 98 (1970) (concurring in judgment). Our ruling in Bruton illustrates the extent of the Court’s concern that the admission of this type of evidence will distort the truthfinding process. In Bruton, we held that the Confrontation Clause rights of the petitioner were violated when his codefendant’s confession was admitted at their joint trial, despite the fact that the judge in that case had carefully instructed the jury that the confession was admissible only against" }, { "docid": "15353910", "title": "", "text": "the statements to be redacted to replace any references to Murray’s co-defendants with neutral terms such as “others” or “another person,” they argue that they were prejudiced even by these neutral terms, which strongly implicated them in the killing of Rosa in light of earlier evidence placing them in the van used in the shooting. The Confrontation Clause of the Sixth Amendment, extended to the States by the Fourteenth Amendment, guarantees a criminal defendant’s right “to be confronted with the witnesses against him.” U.S. Const. amend. VI. This right includes the ability to cross-examine witnesses. See Pointer v. Texas, 380 U.S. 400, 404, 406-07, 85 S.Ct. 1065, 13 L.Ed.2d 923 (1965). In Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968), the Supreme Court held that the introduction of a non-testifying defendant’s out-of-court statement, which directly implicated his co-defendant by name, violated the Confrontation Clause right of the co-defendant. Even though the jury was given clear instructions not to consider the confession in determining that co-defendant’s guilt, the Supreme Court held that it could not “accept limiting instructions as an adequate substitute for [the] constitutional right of cross-examination.” Id. at 137, 88 S.Ct. 1620. The Supreme Court reasoned that “there are some contexts in which the risk that the jury will not, or cannot, follow instructions is so great ... that the practical and human limitations of the jury system cannot be ignored.” Id. at 135, 88 S.Ct. 1620. Subsequently, the Supreme Court held in Richardson v. Marsh that this problem could be cured by redacting the confession “to eliminate not only the [co-defendant’s] name, but any reference to his or her existence.” 481 U.S. 200, 211, 107 S.Ct. 1702, 95 L.Ed.2d 176 (1987). Critically, the confession in Richardson differed from the one in Bruton because it had been redacted so completely that it was no longer incriminating on its face, and became so only when linked with other evidence introduced at trial. Id. at 208, 107 S.Ct. 1702. The Supreme Court declined to extend Bruton in that case because the risk of potential prejudice" }, { "docid": "22276345", "title": "", "text": "because it implicated them and they were unable to cross-examine Pierce to challenge his statements. “Bruton” claims address whether the defendant was able effectively to exercise his sixth amendment right of confrontation. Bruton, 391 U.S. at 126, 88 S.Ct. at 1622. Alleged constitutional errors require de novo review by the court of appeals. McConney, 728 F.2d at 1207. In Bruton, two defendants, Evans and Bruton, were jointly tried. A federal agent testified to Evans’ confession which stated that both he and Bruton had committed a crime. The trial court instructed the jury that the confession was to be used only against the declarant and not against Bru-ton. The Supreme Court reversed Bruton’s conviction. It held that “because of the substantial risk that the jury, despite instructions to the contrary, looked to the incriminating extrajudicial statements in determining petitioner’s guilt, admission of Evans’ confession in this joint trial violated petitioner’s right of cross-examination secured by the Confrontation Clause of the Sixth Amendment.” Bruton, 391 U.S. at 126, 88 S.Ct. at 1622. The Court explicitly found that instructions telling the jury to apply extrajudicial statements only as to the declarant were intrinsically ineffective. Id. at 129, 88 S.Ct. at 1624. However, Bruton does not require that all extrajudicial statements or confessions not be used in a joint trial. Rather, only those statements that “clearly inculpate” the defendant or are “powerfully incriminating” implicate the “Bruton” rule. Richardson v. Marsh, 481 U.S. 200, 107 S.Ct. 1702, 1707, 95 L.Ed.2d 176 (1987); Bruton, 391 U.S. at 124 n. 1, 135, 88 S.Ct. at 1621 n. 1, 1627; United States v. Brooklier, 685 F.2d 1208, 1218 (9th Cir.1982) (per curiam), cert. denied, 459 U.S. 1206, 103 S.Ct. 1194, 75 L.Ed.2d 439 (1983). The Supreme Court, in its latest treatment of the “Bru-ton” rule, has definitively found that redaction serves to eliminate any Bruton problems: We hold that the Confrontation Clause is not violated by the admission of a nontes-tifying codefendant’s confession with a proper limiting instruction when, as here, the confession is redacted to eliminate not only the defendant’s name, but any reference to her existence." } ]

[ { "docid": "18887446", "title": "", "text": "HOVIC should be made. Accordingly, on remand the district court should modify the judgment and enter a judgment in HOV-IC’s favor, giving credit in accord with this opinion. V. HOVIC argues that as the prevailing party, it is entitled to attorney’s fees as mandated by Okla. Stat. tit. 12, § 940(A) (1980 Supp.). The district judge disagreed and held that Oklahoma law was not applicable. He held that the law governing the substantive issues, that of the Virgin Islands, controls on the issue whether an award of attorney’s fees is appropriate for the prevailing party. The judge said that because Oklahoma had no significant interest in the litigation, it would be inappropriate to award HOVIC attorney’s fees pursuant to the Oklahoma statute. Applying the law of the Virgin Islands, the court held that attorney’s fees should be denied to HOVIC because its one page affidavit in support of the large claim was insubstantial. We are convinced that the district court correctly looked to the Oklahoma conflict of laws rule to determine whether Oklahoma would apply its own statute on attorney’s fees or that of the Virgin Islands where the substantive claim arose. Klaxon Co. v. Stentor Electric Manufacturing Co., Inc., 313 U.S. 487, 496-497, 61 S.Ct. 1020, 1021-22, 85 L.Ed. 1477 (1941). We also agree with the trial court’s view that Oklahoma would apply the law of the Virgin Islands since the right of recovery of the attorneys’ fee is intertwined with that of the substantive right. Cf. Prudential Ins. Co. of America v. Carlson, 126 F.2d 607, 611 (10th Cir.1942) (the right to attorneys’ fees is determined by the substantive rights of the parties as provided by the governing law). The Oklahoma Supreme Court has adopted the “most significant relationship” test in determining which governing law is most appropriate in resolving rights and liabilities of parties with respect to issues in tort. Brickner v. Gooden, 525 P.2d 632, 637 (Okla.1974); see also Mills v. State Farm Mutual Auto. Ins. Co., 827 F.2d 1418, 1420 (10th Cir.1987) (recognizing Oklahoma’s choice-of-law test); RESTATEMENT (SECOND) OF CONFLICT OF LAWS, § 145 (1971)." } ]

[ { "docid": "12757082", "title": "", "text": "OK will place additional flocks with them. We must first address a threshold choice-of-law question. Beginning in 1997, OK’s broiler contracts included a choice-of-law provision, designating the law of Arkansas as the governing law. Consequently, in its order granting summary judgment, the District Court held that Oklahoma law governed the pre-1997 contracts and Arkansas law governed the contracts entered into thereafter. To decide the effect of the contractual choice-of-law clause, we look to the forum state’s choice-of-law rules. See Dang v. UNUM Life Ins. Co. of Am., 175 F.3d 1186, 1190 (10th Cir.1999) (“A federal court adjudicating state law claims must apply the forum state’s choice of law principles.”). Under Oklahoma law, “a contract will be governed by the laws of the state where the contract was entered into unless otherwise agreed and unless contrary to the law or public policy of the state where enforcement of the contract is sought.” Williams v. Shearson Lehman Bros., Inc., 917 P.2d 998, 1002 (Okla.Civ.App.1995). Because we conclude that the Growers’ unconscionability claim fails under both Oklahoma and Arkansas law, we need not decide whether the application of Arkansas law would be contrary to Oklahoma’s law or public policy. In reaching this decision, we review the District Court’s interpretation of state law de novo. Steiner Corp. v. Johnson & Higgins of Cal., 135 F.3d 684, 690 (10th Cir.1998) (citing Salve Regina College v. Russell, 499 U.S. 225, 111 S.Ct. 1217, 113 L.Ed.2d 190 (1991)). As an initial matter, the Oklahoma Supreme Court has never addressed whether Oklahoma common law would recognize an affirmative cause of action seeking damages for unconscionability in contract. Nevertheless, Oklahoma’s unconscionability standard is so onerous that the Growers cannot meet that standard here. An unconscionable contract is one in which, “at the time of making of the contract, and in light of the general commercial background and commercial needs of a particular case, clauses are so one-sided as to oppress or unfairly surprise one of the parties.” Barnes v. Helfenbein, 548 P.2d 1014, 1020 (Okla.1976). “Unconscionability has generally been recognized to include an absence of meaningful choice on the" }, { "docid": "21568587", "title": "", "text": "and her decision to sell some Hesse sculptures. At the time she wrote the letter, according to Ms. Charash, she had no idea that DroE had ever had a large number of her sister’s drawings in his possession or that he had given them to OberHn. Despite the listings in the catalogue and buHetin, it was “incomprehensible” to Ms. Charash that no one from OberHn had ever “verbaHy communicated” to her the fact of the Droll gifts. She had meetings in New York with EHen Johnson, curator of modern art at the OberHn art museum and correspondence with WEHam Olander, acting director, about her own contributions to the Hesse show, and neither one ever told her of the gift of the drawings. The record contains some conflicting references to the date of the Donald/PhiHp DroE gift. It appears, on balance, that it occurred late in 1981. II. A choice of law determination is required because of Ms. Charash’s argument that New York law controls. The laws of Ohio and New York disagree on the question of which party has the burden of proof in conversion and replevin actions. Ohio law places the burden on the plaintiff to prove that there was in fact a conversion of her property. Burson v. Peoples Bank, No. 16-92-31, 1993 WL 373523, (Ohio App. 3d Dist., Sept. 1,1993). New York, on the other hand, holds that people deal with property at their own risk, and therefore the defendant must prove that his or her title is valid. In other words, the defendant must prove that there was no conversion. Solomon R. Guggen heim Foundation v. Lubell, 77 N.Y.2d 311, 567 N.Y.S.2d 623, 569 N.E.2d 426 (1991). We review de novo a district court’s determination of state law. Salve Regina College v. Russell, 499 U.S. 225-231, 111 S.Ct. 1217-1221, 113 L.Ed.2d 190 (1991); National Union Fire Ins. Co. v. Watts, 963 F.2d 148, 150 (6th Cir.1992). We likewise review a district court’s grant of summary judgment de novo. Brooks v. American Broadcasting Cos., 932 F.2d 495, 500 (6th Cir.1991). A. It is well-settled that a federal" }, { "docid": "11613920", "title": "", "text": "issue preclusion did not apply either, because the Tenth Circuit decided a different issue than that facing the bankruptcy court. Id. at 489-90 (Somers, J., dissenting). Our original decision addressed how to construe the district court’s final pre trial order, while the bankruptcy court was addressing how much of Zwanziger’s liability to Clark and Kus was dischargeable. Id. Further, explained Judge Somers, the parties never actually litigated the merits of emotional distress damages; they litigated only whether those damages had been waived in the district court trial. Id. at 490. Since the bankruptcy court proceeding involved a different question, he believed issue preclusion should not apply. Asking us to adopt Judge Somers’s position, Clark and Kus appeal the BAP’s decision. Zwanziger asks that we affirm the BAP on issue preclusion. II. Discussion “We review de novo ... conclusions of law on the applicability of issue and claim preclusion.” Fundamentalist Church of Jesus Christ of Latter-Day Saints v. Home, 698 F.3d 1295, 1301 (10th Cir.2012) (internal quotation marks omitted). “No deference to the bankruptcy court’s determination is permitted in a de novo review.” Melnor, Inc. v. Corey (In re Corey), 394 B.R. 519, 523 (10th Cir. BAP 2008) (citing Salve Regina Coll. v. Russell, 499 U.S. 225, 238, 111 S.Ct. 1217, 113 L.Ed.2d 190 (1991)), aff'd, 583 F.3d 1249 (10th Cir.2009). Federal common law governs the preclusive effect of a judgment of a federal court sitting in diversity. Semtek Int’l Inc. v. Lockheed Martin Corp., 531 U.S. 497, 508, 121 S.Ct. 1021, 149 L.Ed.2d 32 (2001). The “federally prescribed rule of decision” to determine the preclusive effect of a diversity court’s judgment is “the law that would be applied by state courts in the State in which the federal diversity court sits.” Id. This dispute arose in the Western District of Oklahoma sitting in diversity, so we apply Oklahoma law. Under Oklahoma law, as under federal law, issue preclusion applies to a decision on the merits of an issue of fact or law that the parties actually litigated. Bronson Trailers & Trucks v. Newman, 139 P.3d 885, 888 n. 9 (Okla.2006);" }, { "docid": "13468954", "title": "", "text": "violate the Johnson Act .... Oklahoma negotiated for this condition because the U.S. Attorney had informed the state that the importation of VLTs under the Compact could subject both Oklahoma and the Tribe to liability under the Johnson Act, which prohibits the possession or use of any gambling device on Indian land. After the U.S. Attorney refused to issue a letter assuring that the Johnson Act did not prohibit the importation of VLTs onto the Tribe’s land, the Tribe filed this declaratory judgment action in the District Court for the Western District of Oklahoma. On cross-motions for summary judgment, the district court held that the importation of VLTs pursuant to the Compact would violate the Johnson Act. It further held that the IGRA would not waive application of the Johnson Act because gambling devices are not legal in the State of Oklahoma. The court therefore denied the Tribe’s motion and granted the U.S. Attorney’s motion. This appeal followed. II. Standard of Review We review summary judgment orders de novo, using the same standards the district court applies. Osgood v. State Farm Mut. Auto Ins. Co., 848 F.2d 141, 143 (10th Cir. 1988). Summary judgment is appropriate “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(c); see Anderson v. Liberty Lobby, 477 U.S. 242, 247-48, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). Because this case presents no factual disputes, we review only the district court’s application of the law. We review de novo the district court’s rulings with respect to Oklahoma law, see Salve Regina College v. Russell, 499 U.S. 225,-, 111 S.Ct. 1217, 1221, 113 L.Ed.2d 190 (1991), which we ascertain and apply such that we reach the result that would be reached by an Oklahoma court, see Adams-Arapahoe Sch. Dist. No. 28-J v. GAF Corp., 959 F.2d 868, 870 (10th Cir.1992). III. Discussion The Johnson Act prohibits the possession or use" }, { "docid": "3522183", "title": "", "text": "P.2d at 655; see also Oklahoma City Fed. Savings & Loan Ass’n v. Clifton, 183 Okla. 74, 80 P.2d 283 (1938). To preserve the doctrine of mutual mistake, relief is denied only when there is “culpable negligence” and the neglect violates some positive legal duty. Crabb, 80 P.2d at 655. Therefore, even “clearly established negligence may not of itself be a suffi- dent ground” to deny reformation, if the other party has not been injured. Id. In making its findings, the district court concluded that “to the extent negligence occurred by Exxon, if any, considering that an attorney reviewed the information provided by the landman, such negligence is insufficient to prevent or bar reformation.” (Appellant’s Appendix at 52). The district court also found that although Dart had little or no knowledge of Oklahoma law, the evidence did not show that his lack of knowledge caused the mistake and that the information available to Dart when he made his determinations would tend to mislead even those knowledgeable in Oklahoma law. Finally, the district court found that the “mistake was not caused by neglect of a legal duty.” Id. After careful consideration of the record, we hold that the district court’s findings are not clearly erroneous. Therefore, we uphold the district court’s decision to reform the Assignment to reflect the original intent of the parties. II. Gann contends that the district court erred in applying a negligence standard in a mutual mistake case. We consider questions of state law de novo. Salve Regina College v. Russell, 499 U.S. 225, 111 S.Ct. 1217, 113 L.Ed.2d 190 (1991). Thus, we apply the same standard of review the district court applied in making its initial decision, Lilly v. Fieldstone, 876 F.2d 857, 858 (10th Cir.1989), and are not constrained by the district court’s conclusions. FDIC v. Bank of Boulder, 911 F.2d 1466, 1469 (10th Cir.1990), cert. denied, 499 U.S. 904, 111 S.Ct. 1103, 113 L.Ed.2d 213 (1991). We may affirm or deny on any adequate grounds adequately presented to the district court. Medina v. City & County of Denver, 960 F.2d 1493, 1500 (10th Cir.1992)." }, { "docid": "307446", "title": "", "text": "by the court and collected as costs.” Ark.Code Ann. § 16-22-308 (emphasis added). Thus, we conclude that the attorney’s fee award was part of the “costs” taxed against the insured, Hi-Tech, in the underlying lawsuit. As such, the award is a “supplementary payment” covered under the policy. VI. The district court awarded the tomato growers attorney’s fees and a 12% penalty on their judgment against West Bend under Ark.Code Ann. § 23-79-208(a)(l). That section provides: In all cases in which loss occurs and the ... insurance company ... fail[s] to pay the losses within the time specified in the policy after demand is made, the ... corporation ... shall be liable to pay the holder of the policy ... in addition to the amount of the loss, twelve percent (12%) damages upon the amount of the loss, together with all reasonable attorney’s fees for the prosecution and collection of the loss. West Bend contends that the district court erred by concluding that the tomato growers were entitled to fees and a penalty under the Arkansas statute. We review de novo the district court’s interpretation of the statute. Salve Regina College v. Russell, 499 U.S. 225, 231, 111 S.Ct. 1217, 113 L.Ed.2d 190 (1991). In a diversity case, state law generally governs the question whether there is a right to attorney’s fees. See Alyeska Pipeline Serv. Co. v. Wilderness Soc’y, 421 U.S. 240, 259 n. 31, 95 S.Ct. 1612, 44 L.Ed.2d 141 (1975). Because Arkansas is the forum, we apply the Arkansas choice-of-law rules in determining which state law governs the issue. See Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487, 496, 61 S.Ct. 1020, 85 L.Ed. 1477 (1941). In conducting the choice-of-law analysis, however, our conclusion that the matter of attorney’s fees is “substantive” for purposes of Erie R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938) — such that state rather than federal law governs — does not necessarily establish that the issue of attorney’s fees is “substantive” rather than “procedural” for purposes of conflict of laws. The two inquiries are distinct." }, { "docid": "22071240", "title": "", "text": "ERG had not established a genuine issue of material fact as to any of its remaining causes of action. Pursuant to 17 U.S.C. § 505, Genesis and Aerostar subsequently filed separate motions to recover attorney’s fees incurred in defending against ERG’s copyright causes of action — claims 1 and 2 (the Inflatimation claims) and claim 5 (the derivative copyright claim). The district court denied Aerostar’s request for attorney’s fees in its entirety and denied Genesis’s request for attorney’s fees with regard to the derivative copyright claim. However, the district court awarded attorney’s fees to Genesis in the amount of $195,-759.00 for having to defend against ERG’s Inflatimation claims. The district court’s calculation of attorney’s fees was soon determined to be erroneous by the parties. Apparently, the amount of the award included the attorney’s fees that Genesis had incurred in defending against the derivative copyright claim. Accordingly, ERG filed a motion to amend. On October 2, 1996, the district court issued an amended order which lowered the award of attorney’s fees to Genesis to $95,075.75. STANDARD OF REVIEW The district court’s decision to grant summary judgment is reviewed de novo. See, e.g., Warren v. City of Carlsbad, 58 F.3d 439, 441 (9th Cir.1995), cert. denied, — U.S. -, 116 S.Ct. 1261, 134 L.Ed.2d 209 (1996). Viewing the evidence in the light most favorable to the non-moving party, we must determine whether there are any genuine issues of material fact and whether the district court correctly applied the relative substantive law. Id. The district court’s interpretation of state law is reviewed under the same de novo standard that is used to review questions of federal law. See, e.g., Salve Regina College v. Russell, 499 U.S. 225, 231, 111 S.Ct. 1217, 1220-1222, 113 L.Ed.2d 190 (1991). The district court’s decision to award attorney’s fees under the Copyright Act, 17 U.S.C. §§ 101-1101, is reviewed for an abuse of discretion. See, e.g., Fantasy, Inc. v. Fogerty, 94 F.3d 553, 556 (9th Cir.1996). However, “[A]ny elements of legal analysis and statutory interpretation which figure in the district court’s decision are reviewable de novo.” Hall v." }, { "docid": "23043593", "title": "", "text": "review standards, the Court’s only references in Batson are to its Title VII jurisprudence, as discussed above. See id. at 94 n. 18, 106 S.Ct. 1712; see also id. at 98 & n. 21, 106 S.Ct. 1712 (“The trial court then will have the duty to determine if the defendant has established purposeful discrimination. In a recent Title VII sex discrimination case, we stated that a ‘finding of intentional discrimination is a finding of fact’ entitled to appropriate deference by a reviewing court.”). Thus, the sentence at issue does not provide any guidance concerning the standard of review applicable to the prima facie determination, and the majority’s reliance on it is misplaced. II. The Burdens of Production and Persuasion are Distinct The majority offers a careful review of the standards applicable to mixed questions of law and fact, acknowledging, however, that this approach provides no clear-cut answer. Indeed, our holding in Gay casts doubt on the appropriateness of the majority’s reliance on such labeling. In Gay, we recognized that the trial court might make factual findings, but characterized as “legal” the conclusion whether to shift the burden of production. In addition, the majority’s approach of simply labeling the Batson prima facie inquiry a mixed issue of law and fact only begs the question and blurs the distinction between shifting the burden of production and satisfying the burden of persuasion, ie., deciding the ultimate issue of discrimination. As Gay recognized, raising an inference of discrimination sufficient to require the other side to articulate a neutral explanation cannot be equated with the ultimate factual finding of purposeful discrimination. Unlike the majority, I do not find Salve Regina College v. Russell, 499 U.S. 225, 111 S.Ct. 1217, 113 L.Ed.2d 190 (1991), particularly instructive. Salve Regina involved the issue whether a district court’s interpretation of state law is entitled to deference on appeal. See id. at 226, 111 S.Ct. 1217. The Court concluded that appellate courts are more “structurally suited” to determine legal issues and that the appropriate standard of review is de novo. See id. at 231-32, 111 S.Ct. 1217. Although the Court" }, { "docid": "10054214", "title": "", "text": "of 6.375%. Also, both parties agreed that the judgment should be amended to deduct from the total damage award the pretrial SDR payments made by American Airlines to Maddox in the amount of $134,453. The district court granted in part and denied in part the motions to amend the judgment. Maddox v. Am. Airlines, Inc., 115 F.Supp.2d 993, 996 (E.D.Ark.2000). Specifically, the district court denied Maddox’s request for any prejudgment interest on the damage award, denied Maddox’s request for postjudgment interest at the Oklahoma rate, and granted the joint request to credit the judgment with American Airlines’ pretrial SDR payment of $134,453. The district court also credited interest on that payment in the amount of $4,051.93, although neither party had requested this further reduction. Ms. Maddox appeals. II. Ms. Maddox first contends that the district court erred by applying Arkansas’s choice of law rules to determine whether to award prejudgment interest because the parties had agreed by stipulation and the IATA Intercarrier Agreement that Oklahoma law would govern the damages issue. “We review the district court’s choice of law determinations de novo.” Inacom Corp. v. Sears, Roebuck & Co., 254 F.3d 683, 687 (8th Cir.2001). Similarly, we apply de novo review to the district court’s determinations of state law. Salve Regina Coll. v. Russell, 499 U.S. 225, 231-32, 111 S.Ct. 1217, 113 L.Ed.2d 190 (1991). Because actions under the Warsaw Convention, an international treaty, present federal law questions, a federal forum is available, but the Convention itself does not include a choice of law provision. The Supreme Court has indicated that Article 17 of “the Warsaw Convention permitfs] compensation only for legally cognizable harm, but leave[s] the specification of what harm is legally cognizable to the domestic law applicable under the forum’s choice of law rules.” Zicherman v. Korean Air Lines Co., 516 U.S. 217, 231, 116 S.Ct. 629, 133 L.Ed.2d 596 (1996). Thus, Article 17 is a “pass-through” provision which, absent special federal legislation applicable to Warsaw Convention cases, provides nothing more than an authorization to apply whatever law would govern in the absence of the Warsaw Convention. Id." }, { "docid": "22561358", "title": "", "text": "As to sentencing issues, all Defendants claim the district court erroneously calculat ed the quantity of cocaine used to determine their base offense levels. In addition, Defendant Edwards claims the district court improperly enhanced his sentence for (1) being an organizer or leader of the conspiracy, and (2) obstruction of justice. Defendants Lawrence and Chaplin seek to incorporate all arguments raised by their eodefendants insofar as they apply to their particular appeals. We address Defendants’ arguments in turn. II. Motion to Suppress Defendants first contend the district court erred in denying their motion to suppress evidence obtained pursuant to a wiretap. Specifically, Defendants contend that the wiretap application and order were invalid because the district attorney who applied for the wiretap order was without jurisdiction to do so. In addition, Defendant Ratliff contends the application for a wiretap contained an insufficient showing of requisite necessity for interception and that the government failed to minimize the telephone conversations monitored. On appeal from a motion to suppress, we accept the district court’s factual findings unless clearly erroneous, review questions of law de novo, and view the evidence in the light most favorable to the prevailing party. United States v. Williamson, 1 F.3d 1134, 1135 (10th Cir.1993). A. Jurisdiction of District Attorney to Apply for Order The wiretap order in question was obtained pursuant to the Oklahoma Security of Communications Act, Okla.Stat.Ann. tit. 13, §§ 176.1-.14. Under the federal wiretap statute, 18 U.S.C. § 2516(2), we must defer to state law “ ‘on the question of the validity of [a] wiretap order obtained in state court under state law.’ ” United States v. Tavarez, 40 F.3d 1136, 1137 (10th Cir.1994) (quoting United States v. McNulty, 729 F.2d 1243, 1266 (10th Cir.1983) (en banc)). We review a district court’s determination of state law de novo. Salve Regina College v. Russell, 499 U.S. 225, 231, 111 S.Ct. 1217, 1220-21, 113 L.Ed.2d 190 (1991). Section 176.9(C) of the Oklahoma wiretap statute authorizes the “interception of wire ... communications within the territorial jurisdiction ... of the district attorney requesting the order.” Okla.Stat.Ann. tit. 13, § 176.9(C). The" }, { "docid": "12645333", "title": "", "text": "addressing the definition of impairment set forth in § 522(f), the bankruptcy court denied the Debtor’s motion, holding that there was no evidence that the hen impaired his “right to enjoy and use the homestead.” This appeal followed. II. Appellate Jurisdiction. This Court, with the consent of the parties, has jurisdiction to hear timely-filed appeals from “final judgments, orders, and decrees” of bankruptcy courts within the Tenth Circuit. 28 U.S.C. § 158(a)(1), (b)(1), and (c)(1). Under this standard, we have jurisdiction over this appeal. The parties have consented to this Court’s jurisdiction in that they have not opted to have the appeal heard by the United States District Court for the Eastern District of Oklahoma. Id. at § 158(c); 10th Cir. BAP L.R. 8001-l(a) and (d). The appeal was filed timely by the Debtor, and the bankruptcy court’s Order is “final” within the meaning of § 158(a)(1). See Fed.R.Bankr.P. 8001-8002. III. Standard of Review. The Debtor does not ascribe error to the bankruptcy court’s brief findings of fact. In reviewing whether the court’s order denying the motion to avoid lien was correct as a matter of law, we review the case de novo. Pierce v. Underwood, 487 U.S. 552, 558, 108 S.Ct. 2541, 101 L.Ed.2d 490 (1988). De novo review requires an independent determination of the issues, giving no special weight to the bankruptcy court’s decision. Salve Regina College v. Russell, 499 U.S. 225, 238, 111 S.Ct. 1217, 113 L.Ed.2d 190 (1991). IV. Discussion. This case presents the Court with the opportunity to address the split among bankruptcy courts in Oklahoma regarding the effect of the recent amendment to Oklahoma law that permits judgment hens to attach to homesteads. Prior to November 1, 1997, Oklahoma courts consistently held that a judgment lien created pursuant to Section 706 of the Oklahoma statutes did not attach to the homestead of the judgment debtor, and could not be enforced against the same. See Sooner Fed. Sav. & Loan Ass’n v. Mobley, 645 P.2d 1000 (Okla.1981); Kelough v. Neff, 382 P.2d 135 (Okla.1963). The Oklahoma legislature amended Section 706, effective November 1, 1997, to" }, { "docid": "5916599", "title": "", "text": "before the district court: [T]here is authority under Ohio law that if you fail to make the notification, you’re just out. Too bad, you get no claim. They treat it as a condition precedent to coverage.... The Michigan law, on the other hand, ... says, well, we’re going to consider that as a factor, but really it’s going to be up to the insurance company to show that they were prejudiced by the lack of timely notice. J.A. at 112. Applying Michigan’s choice of law rules and relying on International Insurance Co. v. Stonewall Insurance Co., 86 F.3d 601 (6th Cir.1996), the district court ruled that the substantive law of Michigan governed the parties’ dispute. The parties thereafter entered into a “Partial Settlement Agreement” that resolved all factual and legal disputes except for the single legal issue regarding the appropriate choice of law. The district court soon after entered a “Stipulated Final Order” preserving the choice of law issue for appeal and stating that the order “constitutes a final order adjudicating the rights and obligations of the parties.” J.A. at 43. Plaintiffs’ timely appeal of the choice of law issue is now before this court. II. STANDARD OF REVIEW The district court’s ruling on the choice of law issue is reviewed de novo. Salve Regina College v. Russell, 499 U.S. 225, 231, 111 S.Ct. 1217, 1218-1221, 113 L.Ed.2d 190 (1991); Charash v. Oberlin College, 14 F.3d 291, 296 (6th Cir.1994). III. CHOICE OF LAW RULES It is well-established that, in a diversity case such as this one, a federal court must apply the substantive law of the state in which the court sits. Erie R.R. Co. v. Tompkins, 304 U.S. 64, 78, 58 S.Ct. 817, 822, 82 L.Ed. 1188 (1938). This rule extends to the forum state’s law regarding choice of laws. Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487, 496, 61 S.Ct. 1020, 1021, 85 L.Ed. 1477 (1941). Because this action was brought in federal court in Michigan, Michigan’s choice of law rules apply. The Michigan Supreme Court most recently addressed the state’s choice of law rules" }, { "docid": "6521558", "title": "", "text": "federal court sitting in diversity must apply the law of the -forum state, in this case Oklahoma, and thus must ascertain and apply Oklahoma law with the objective that the result obtained in the federal court should be the result that would be reached in an Oklahoma court, See Allen v. Minnstar, Inc., 8 F.3d 1470, 1476 (10th Cir.1993). If a federal court cannot ascertain the law of the forum state, we must in essence sit as a state court and predict how the highest state court would rule. See Adams-Arapahoe Sch. Dist. No. 28-J v. GAF Corp., 959 F.2d 868, 870 (10th Cir.1992). A federal district court’s state-law determinations are entitled to no deference and are reviewed de novo. Salve Regina College v. Russell, 499 U.S. 225, 111 S.Ct. 1217, 113 L.Ed.2d 190 (1991). DISCUSSION The Woods do not appeal the district court’s finding that they failed to make a sufficient showing of causation under common principles of Oklahoma tort law. To prevail against a manufacturer in a products liability action, a plaintiff “must prove that the product was the cause of the injury; the mere possibility that it might have caused the injury is not enough.” Kirkland v. General Motors Corp., 521 P.2d 1353, 1363 (Okla. 1974). We have interpreted the current Oklahoma causation standard in a products liability case to require a “significant probability” that defendant’s acts are related to plaintiffs injury. See Dillon v. Fibreboard Corp., 919 F.2d 1488, 1491 (10th Cir.1990) (interpreting Case v. Fibreboard Corp., 743 P.2d 1062, 1067 (Okla.1987)); see also Blair v. Eagle-Picher Indus., 962 F.2d 1492, 1496 (10th Cir.) (same standard under Case and Dillon), cert. denied, — U.S. —, 113 S.Ct. 464, 121 L.Ed.2d 372 (1992). Accepting the district court’s conclusion that plaintiffs failed to establish causation, Slip Op. at 3, we do not further address an unappealed issue. Therefore, the Woods’ ease hinges on whether Oklahoma has or would adopt another tort theory that relieves plaintiffs of their burden of establishing causation. I Alternative Liability Doctrine The Woods first challenge the district court’s refusal to extend the alternative liability" }, { "docid": "2910757", "title": "", "text": "Pending the damages phase of the trial, Madison County settled with the Sheriffs Employees for $750,000. Pursuant to its previous ruling on the indemnification claim, the district court then entered judgment in favor of Madison County against Hopkins for $750,000. Madison. County subsequently filed a motion to recover attorneys’ fees and expenses from Hopkins. Relying again on Mississippi common law, the district court granted Madison County its attorneys’ fees and expenses, which totaled $264,430.32. Hopkins appeals, Discussion On appeal, Hopkins asserts the following claims of error: (1) he was not an “employer” under the FLSA, 29 U.S.C. § 203(d); (2) the FLSA preempts the application of Mississippi common law indemnification; (3) the district court misapplied Mississippi indemnity law; and (4) the district court should have disqualified Madison County’s counsel from representing any party in the suit. We agree that the district court erred in its application of Mississippi law. Because this conclusion relieves Hopkins of the judgment entered against him, we need not address the other issues presented in this appeal. In this appeal from a bench trial, we review the district court’s factual findings for clear error. See Odom v. Frank, 3 F.3d 839, 843 (5th Cir.1993). We review de novo the district court’s determination of law, whether federal or state. See Gardes Directional Drilling v. U.S. Turnkey Exploration Co., 98 F.3d 860, 864 (5th Cir.1996); see also Salve Regina College v. Russell, 499 U.S. 225, 111 S.Ct. 1217, 1225, 113 L.Ed.2d 190 (1991) (“The obligation of responsible appellate review and the principles of a cooperative judicial federalism underlying Erie [R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938) ] require that courts of appeals review the state-law determinations of district courts de novo.”). Madison County does not contend that the FLSA, federal common law, or Mississippi statutory law provide for its indemnification claim. Therefore, the only remaining basis for indemnification lies in Mississippi common law. Accordingly, Mississippi substantive law governs Madison County’s common law indemnification claim against Hopkins. When adjudicating claims for which state law provides the rules of decision, we are bound" }, { "docid": "22561359", "title": "", "text": "review questions of law de novo, and view the evidence in the light most favorable to the prevailing party. United States v. Williamson, 1 F.3d 1134, 1135 (10th Cir.1993). A. Jurisdiction of District Attorney to Apply for Order The wiretap order in question was obtained pursuant to the Oklahoma Security of Communications Act, Okla.Stat.Ann. tit. 13, §§ 176.1-.14. Under the federal wiretap statute, 18 U.S.C. § 2516(2), we must defer to state law “ ‘on the question of the validity of [a] wiretap order obtained in state court under state law.’ ” United States v. Tavarez, 40 F.3d 1136, 1137 (10th Cir.1994) (quoting United States v. McNulty, 729 F.2d 1243, 1266 (10th Cir.1983) (en banc)). We review a district court’s determination of state law de novo. Salve Regina College v. Russell, 499 U.S. 225, 231, 111 S.Ct. 1217, 1220-21, 113 L.Ed.2d 190 (1991). Section 176.9(C) of the Oklahoma wiretap statute authorizes the “interception of wire ... communications within the territorial jurisdiction ... of the district attorney requesting the order.” Okla.Stat.Ann. tit. 13, § 176.9(C). The application for a wiretap in the instant case sought authorization to intercept telephone conversations from two telephones located in Atoka County, Oklahoma, located in Judicial District 19. The district attorney who applied for the wiretap resided in Judicial District 21, located in Cleveland County, where the agents monitored the conversations. Under § 176.9(C), Defendants contend “interception” of communications occurs only where the tapped phones are physically located. Because the tapped phones were located in Judicial District 19, Defendants contend the district attorney for District 21 did not have authority to apply for the order because he did not reside in the district where the phones were physically located. Accordingly, Defendants contend that the wiretap authorization was invalid and that the district court should have suppressed all evidence obtained pursuant to the wiretap. We rejected a similar challenge to the validity of the wiretap in question in Tavarez. In Tavarez, the defendant argued that the district attorney who applied for the wiretap in the instant case was without jurisdiction to do so because he did not" }, { "docid": "10054215", "title": "", "text": "court’s choice of law determinations de novo.” Inacom Corp. v. Sears, Roebuck & Co., 254 F.3d 683, 687 (8th Cir.2001). Similarly, we apply de novo review to the district court’s determinations of state law. Salve Regina Coll. v. Russell, 499 U.S. 225, 231-32, 111 S.Ct. 1217, 113 L.Ed.2d 190 (1991). Because actions under the Warsaw Convention, an international treaty, present federal law questions, a federal forum is available, but the Convention itself does not include a choice of law provision. The Supreme Court has indicated that Article 17 of “the Warsaw Convention permitfs] compensation only for legally cognizable harm, but leave[s] the specification of what harm is legally cognizable to the domestic law applicable under the forum’s choice of law rules.” Zicherman v. Korean Air Lines Co., 516 U.S. 217, 231, 116 S.Ct. 629, 133 L.Ed.2d 596 (1996). Thus, Article 17 is a “pass-through” provision which, absent special federal legislation applicable to Warsaw Convention cases, provides nothing more than an authorization to apply whatever law would govern in the absence of the Warsaw Convention. Id. at 229, 116 S.Ct. 629; see also Ins. Co. of N. Am. v. Fed. Express Corp., 189 F.3d 914, 920 (9th Cir.1999); Brink’s Ltd. v. S. African Airways, 93 F.3d 1022, 1029 (2d Cir.1996), cert. denied, 519 U.S. 1116, 117 S.Ct. 959, 136 L.Ed.2d 845 (1997). While ordinarily the choice of law rules of the forum would apply to determine the applicable law that governs what harm is legally cognizable, the IATA Intercarrier Agreement and its implementing provisions make an express choice of law applicable to this case, stating that “recoverable compensatory damages” will be determined by reference to the law of the passenger’s domicile or permanent residence, which is Oklahoma in this case. (Appel-lee’s Add. at 3, 5.) Also, American Airlines agreed in a pretrial stipulation that the “damages issues” in this lawsuit should be governed by Oklahoma law. (J.A. at Tab 6.) Accordingly, the district court properly chose to apply Oklahoma’s law on damages generally. Ms. Maddox argues that prejudgment interest is within the meaning of “recoverable compensatory damages” under the IATA Intercarrier" }, { "docid": "6201721", "title": "", "text": "by the sheriffs sale to FNB. The holding of that companion case was appealed and affirmed earlier, and is not before us now. See Davis Oil Co. v. Mills, 873 F.2d 774 (5th Cir.1989). After Mills prevailed in the declaratory judgment action, he filed a motion for partial summary judgment seeking to recover from Davis his share of the oil and gas revenues produced from the property. The district court granted the motion and Davis paid Mills approximately $400,000. Davis then filed its own motion for summary judgment seeking a dismissal of Mills’ remaining claims for penalties, damages and attorney’s fees. On August 6,1992, the district court granted Davis’ motion for summary judgment, dismissing all of Mills’ claims against Davis with prejudice, except for Mills’ claim for additional production revenues and Mills’ claim for civil penalties under La.R.S. 30:18, which claims were dismissed without prejudice. Mills now appeals the dismissal of his claims, and Davis appeals the district court’s decision to dismiss some of Mills’ claims without prejudice. STANDARD OF REVIEW In this diversity case decided on summary judgment, the controlling law is that of Louisiana. Appellant’s arguments challenge the district court’s application of Louisiana law. We must review de novo the district court’s determination of state law. Salve Regina College v. Russell, 499 U.S. 225, 238, 111 S.Ct. 1217, 1225, 113 L.Ed.2d 190 (1991) (“The obligation of responsible appellate review and the principle of a cooperative judicial federalism underlying Erie [R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938) ] require that courts of appeals review the state-law determination of district courts de novo.”) The standard of review, at the appellate level of a district court’s grant of summary judgment requires the same analysis as employed by the trial court. See Federal Rules of Civil Procedure 56(c). Legal questions raised by a grant of summary judgment are reviewed de novo. The determination of whether there exist genuine issues of material fact, although considered de novo, requires deference to the nonmoving party. Jones v. Southern Marine & Aviation Underwriters, 888 F.2d 358, 560 (5th Cir.1989)." }, { "docid": "307447", "title": "", "text": "statute. We review de novo the district court’s interpretation of the statute. Salve Regina College v. Russell, 499 U.S. 225, 231, 111 S.Ct. 1217, 113 L.Ed.2d 190 (1991). In a diversity case, state law generally governs the question whether there is a right to attorney’s fees. See Alyeska Pipeline Serv. Co. v. Wilderness Soc’y, 421 U.S. 240, 259 n. 31, 95 S.Ct. 1612, 44 L.Ed.2d 141 (1975). Because Arkansas is the forum, we apply the Arkansas choice-of-law rules in determining which state law governs the issue. See Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487, 496, 61 S.Ct. 1020, 85 L.Ed. 1477 (1941). In conducting the choice-of-law analysis, however, our conclusion that the matter of attorney’s fees is “substantive” for purposes of Erie R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938) — such that state rather than federal law governs — does not necessarily establish that the issue of attorney’s fees is “substantive” rather than “procedural” for purposes of conflict of laws. The two inquiries are distinct. See Sun Oil Co. v. Wortman, 486 U.S. 717, 726, 108 S.Ct. 2117, 100 L.Ed.2d 743 (1988); Boyd Rosene & Assoc. v. Kansas Mun. Gas Agency, 174 F.3d 1115, 1118 (10th Cir.1999). The Supreme Court of Arkansas considers the allowance of the statutory penalty and attorney’s fees to be “a procedural matter governed by the laws of the State of Arkansas.” USAA Life Ins. Co. v. Boyce, 294 Ark. 575, 745 S.W.2d 136, 138 (1988). Accordingly, the Supreme Court of Arkansas has applied Arkansas law relating to attorney’s fees and penalties where Arkansas is the forum, even where the law of another State governs substantive issues, including the interpretation of an insurance contract. See Amer. Physicians Ins. Co. v. Hruska, 244 Ark. 1176, 428 S.W.2d 622, 627-28 (Ark.1968); New Empire Life Ins. Co. v. Bowling, 241 Ark. 1051, 411 S.W.2d 868, 865 (1967). We thus conclude that Arkansas law, rather than Wisconsin law, governs the awarding of attorney’s fees and penalties. See also City of Carter Lake v. Aetna Cas. & Sur. Co., 604 F.2d" }, { "docid": "23316268", "title": "", "text": "the alleged leasing business, and so she should not be personally liable for the withdrawal liability even if Tom is. The district court rejected all of the Fulkersons’ arguments, granted summary judgment to the fund, and ordered the Fulkersons to pay Central States the withdrawal liability plus liquidated damages, interest, and attorneys’ fees, as provided in 29 U.S.C. § 1132(g)(2). The Fulkersons now appeal the district court’s determinations that the leasing was a trade or business and that Dolly intended to be a partner with Tom. II. Discussion A. Standard of Review The initial question presented by this case is the standard by which we review the district court’s decision. The district court’s interpretation of the statutory phrase “trade or business” is, of course, purely a question of law that we review de novo. See Salve Regina College v. Russell, 499 U.S. 225, 231-32, 111 S.Ct. 1217, 113 L.Ed.2d 190 (1991); Eli Lilly & Co. v. Natural Answers, Inc., 233 F.3d 456, 467 (7th Cir.2000). Summary judgments are reviewed de novo, viewing all of the facts, and drawing all reasonable inferences from those facts, in favor of the nonmoving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Opp v. Wheaton Van Lines, Inc., 231 F.3d 1060, 1063 (7th Cir.2000). However, Central States argues that in the circumstances of this case we review the district court’s “characterizations” of undisputed historical facts, which apparently means mixed questions of law and fact, under a clearly erroneous standard of review, citing Central States, Southeast and Southwest Areas Pension Fund v. Slotky, 956 F.2d 1369, 1373-74 (7th Cir.1992) and Central States, Southeast and Southwest Pension Fund v. Personnel, Inc., 974 F.2d 789, 792 (7th Cir.1992). Central States claims that for both the trade or business issue and the partnership question the underlying facts are undisputed, the district court merely applied the law to the facts, and the Fulkersons have no right to a jury trial. According to the fund, the satisfaction of these three conditions requires this court to deferentially review the district court’s decision." }, { "docid": "23690896", "title": "", "text": "F.2d 1520 (10th-Cir.1990), the court held that the two-year period under § 546(a) applies to debtors in possession and, therefore, begins to run on the petition date. Under Zilkha it is therefore arguable that this proceeding is time-barred under former § 546(a) because it was commenced more than two years after the date that the Debtor filed bankruptcy. We note, however, that in Zilkha the court expressly declined to rule on the issue before us of whether actions commenced by a Chapter 11 trustee within two years of its appointment are time-barred under former § 546(a). Id. at 1524 n. 11. Although never definitively decided by the Tenth Circuit, the court, in rather strong dicta in Starzynski 72 F.3d at 821, indicated that if a trustee is appointed in a Chapter 11 case, the trustee would have two years from that appointment in which to file actions. Based on this direction from the Tenth Circuit, we conclude that the two-year period under former § 546(a) recommenced upon the appointment of the Trustee. Thus, this proceeding is not time-barred as it was commenced by the Trustee within two years of his appointment. III. STANDARD OF REVIEW “For purposes of standard of review, decisions by judges are traditionally divided into three categories, denominated questions of law (reviewable de novo), questions of fact (reviewable for clear error), and matters of discretion (reviewable for ‘abuse of discretion’).” Pierce v. Underwood, 487 U.S. 552, 558, 108 S.Ct. 2541, 2546, 101 L.Ed.2d 490 (1988); see Fed. R. Bankr.P. 8013; Fowler Bros. v. Young (In re Young), 91 F.3d 1367, 1370 (10th Cir.1996). De novo review requires an independent determination of the issues, giving no special weight to the bankruptcy court’s decision. Salve Regina College v. Russell, 499 U.S. 225, 238, 111 S.Ct. 1217, 1224-25, 113 L.Ed.2d 190 (1991). A factual finding is “clearly erroneous” when ‘“it is without factual support in the record, or if the appellate court, after reviewing all the evidence, is left with the definite and firm conviction that a mistake has beén made.’ ” Las Vegas Ice & Cold Storage Co. v." } ]

[ { "docid": "22661484", "title": "", "text": "a handbill having a commercial message on one side but a protest against certain official action on the other. The reliance is wholly misplaced. The Court in Chrestensen reaffirmed the constitutional protection for “the freedom of communicating information and disseminating opinion”; its holding was based upon the factual conclusions that the handbill was “purely commercial advertising” and that the protest against official action had been added only to evade the ordinance. The publication here was not a “commercial” advertisement in the sense in which the word was used in Chrestensen. It communicated information, expressed opinion, recited grievances, protested claimed abuses, and sought financial support on behalf of a movement whose existence and objectives are matters of the highest public interest and concern. See N. A. A. C. P. v. Button, 371 U. S. 416, 435. That the Times was paid for publishing the advertisement is as immaterial in this connection as is the fact that newspapers and books are sold. Smith v. California, 361 U. S. 147, 150; cf. Bantam Books, Inc., v. Sullivan, 372 U. S. 58, 64, n. 6. Any other conclusion would discourage newspapers from carrying “editorial advertisements” of this type, and so might shut off an important outlet for the promulgation of information and ideas by persons who do not themselves have access to publishing facilities — who wish to exercise their freedom of speech even though they are not members of the press. Cf. Lovell v. Griffin, 303 U. S. 444, 452; Schneider v. State, 308 U. S. 147, 164. The effect would be to shackle the First Amendment in its attempt to secure “the widest possible dissemination of information from diverse and antagonistic sources.” Associated Press v. United States, 326 U. S. 1, 20. To avoid placing such a handicap upon the freedoms of expression, we hold that if the allegedly libelous statements would otherwise be constitutionally protected from the present judgment, they do not forfeit that protection because they were published in the form of a paid advertisement. II. Under Alabama law as applied in this case, a publication is “libelous per se”" } ]

[ { "docid": "22691989", "title": "", "text": "might argue with comparable logic that the State may control the volume of expression by the wealthier, more powerful corporate members of the press in order to “enhance the relative voices” of smaller and less influential members. Except in the special context of limited access to the channels of communication, see Red Lion Broadcasting Co. v. FCC, 395 U. S. 367 (1969), this concept contradicts basic tenets of First Amendment jurisprudence. We rejected a similar notion in Miami Herald Publishing Co. v. Tornillo, 418 U. S. 241 (1974). There we held that the First Amendment prohibits a State from requiring a newspaper to make space available at no cost for a reply from a candidate whom the newspaper has criticized. The state court had held that “free speech was enhanced and not abridged by the Florida right-of-reply statute, which in that court’s view, furthered the ‘broad societal interest in the free flow of information to the public.’ ” Id., at 245. Far more than in the instant case, allegations were there made and substantiated of a concentration in the hands of a few of “the power to inform the American people and shape public opinion,” and that “the public has lost any ability to respond or to contribute in a meaningful way to the debate on issues.” Id., at 250. Government is forbidden to assume the task of ultimate judgment, lest the people lose their ability to govern themselves. See Thornhill v. Alabama, 310 U. S. 88, 95 (1940); Meiklejohn, The First Amendment is an Absolute, 1961 S. Ct. Rev. 245, 263. The First Amendment rejects the “highly paternalistic” approach of statutes like § 8 which restrict what the people may hear. Virginia State Bd. of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U. S., at 770; see Linmark Associates, Inc. v. Willingboro, 431 U. S., at 97; Whitney v. California, 274 U. S. 357, 377 (1927) (Brandeis, J., concurring); Abrams v. United States, 250 U. S. 616, 630 (1919) (Holmes, J., dissenting). The State’s paternalism evidenced by this statute is illustrated by the fact that Massachusetts does not" }, { "docid": "22315007", "title": "", "text": "435 U. S., at 779, n. 14, and therefore declined to hold that “corporations have the full measure of rights that individuals enjoy under the First Amendment.” Id., at 777. III PG&E is not an individual or a newspaper publisher; it is a regulated utility. The insistence on treating identically for constitutional purposes entities that are demonstrably different is as great a jurisprudential sin as treating differently those entities which are the same. Because I think this case is governed by PruneYard, and not by Tornillo or Wooley, I would affirm the judgment of the Supreme Court of California. This ease does not involve the question whether the First Amendment provides a right of access to a private forum. See Hudgens v. NLRB, 424 U. S. 507 (1976); Marsh v. Alabama, 326 U. S. 501 (1946). The right of access in this case was granted by state law. See PruneYard Shopping Center v. Robins, 447 U. S. 74 (1980); Miami Herald Publishing Co. v. Tornillo, 418 U. S. 241 (1974); cf. Columbia Broadcasting System, Inc. v. Democratic National Committee, 412 U. S. 94 (1973); Red Lion Broadcasting Co. v. FCC, 395 U. S. 367 (1969). This was the critical distinction between the contribution and expenditure limitations, and not the relative worth of the respective governmental interests. The Court in Buckley v. Valeo never suggested that the interest served by the campaign limitation provision was a “compelling” one, nor examined the provision to determine whether it was sufficiently tailored to the interest to survive “heightened scrutiny.” The Court was satisfied that the provision had only an indirect and minimal effect on First Amendment interests, as well as a rational basis. Nor did the Court treat the expenditure limitations differently because the governmental justification was less important. Instead, the relatively greater effect of these limitations on affirmative speech triggered heightened scrutiny, and a rational basis was no longer sufficient to justify them. See Buckley, 424 U. S., at 44-45. The extension of negative free speech rights to corporations would cast doubt upon the result in Red Lion Broadcasting Co. v. FCC, 395" }, { "docid": "22869776", "title": "", "text": "and our abiding faith that the surest course for developing sound national policy lies in a free exchange of views on public issues. And public debate must not only be unfettered; it must also be informed. For that reason this Court has repeatedly stated that First Amendment concerns encompass the receipt of information and ideas as well as the right of free expression. Kleindienst v. Mandel, 408 U. S. 753, 762 (1972); Red Lion Broadcasting Co. v. FCC, 395 U. S. 367, 390 (1969); Lamont v. Postmaster General, 381 U. S. 301 (1965); Martin v. City of Struthers, 319 U. S. 141, 143 (1943). In my view this reasoning also underlies our recognition in Branzburg that “news gathering is not without its First Amendment protections . . . 408 U. S., at 707. An informed public depends on accurate and effective reporting by the news media. No individual can obtain for himself the information needed for the intelligent discharge of his political responsibilities. For most citizens the prospect of personal familiarity with newsworthy events is hopelessly unrealistic. In seeking out the news the press therefore acts as an agent of the public at large. It is the means by which the people receive that free flow of information and ideas essential to intelligent self-government. By enabling the public to assert meaningful control over the political process, the press performs a crucial function in effecting the societal purpose of the First Amendment. That function is recognized by specific reference to the press in the text of the Amendment and by the precedents of this Court: “The Constitution specifically selected the press . . . to play an important role in the discussion of public affairs. Thus the press serves and was designed to serve as a powerful antidote to any abuses of power by governmental officials and as a constitutionally chosen means for keeping officials elected by the people responsible to all the people whom they were selected to serve.” Mills v. Alabama, 384 U. S. 214, 219 (1966). This constitutionally established role of the news media is directly implicated here." }, { "docid": "22691988", "title": "", "text": "3, 13, 14-15 (1976). Appellee contends that the State’s interest in sustaining the active role of the individual citizen is especially great with respect to referenda because they involve the direct participation of the people in the lawmaking process. But far from inviting greater restriction of speech, the direct participation of the people in a referendum, if anything, increases the need for “ ‘the widest possible dissemination of information from diverse and antagonistic sources.’ ” New York Times Co. v. Sullivan, 376 U. S., at 266 (quoting Associated Press v. United States, 326 U. S., at 20). Mr. Justice White argues, without support in the record, that because corporations are given certain privileges by law they are able to “amass wealth” and then to “dominate” debate on an issue. Post, at 809, 821. He concludes from this generalization that the State has a subordinating interest in denying corporations access to debate and,, correspondingly, in denying the public access to corporate views. The potential impact of this argument, especially on the news media, is unsettling. One might argue with comparable logic that the State may control the volume of expression by the wealthier, more powerful corporate members of the press in order to “enhance the relative voices” of smaller and less influential members. Except in the special context of limited access to the channels of communication, see Red Lion Broadcasting Co. v. FCC, 395 U. S. 367 (1969), this concept contradicts basic tenets of First Amendment jurisprudence. We rejected a similar notion in Miami Herald Publishing Co. v. Tornillo, 418 U. S. 241 (1974). There we held that the First Amendment prohibits a State from requiring a newspaper to make space available at no cost for a reply from a candidate whom the newspaper has criticized. The state court had held that “free speech was enhanced and not abridged by the Florida right-of-reply statute, which in that court’s view, furthered the ‘broad societal interest in the free flow of information to the public.’ ” Id., at 245. Far more than in the instant case, allegations were there made and substantiated of" }, { "docid": "22076410", "title": "", "text": "U. S. 374, 389 (1967), and secures 'the paramount public interest in a free flow of information to the people concerning public officials, Garrison v. Louisiana, 379 U. S. 64, 77 (1964). See also New York Times Co. v. Sullivan, 376 U. S. 254 (1964). By the same token, \"'[a]ny system of prior restraints of expression comes to this Court bearing a heavy presumption against its constitutional validity.” ’ New York Times Co. v. United States, 403 U. S. 713, 714 (1971); Organization for a Better Austin v. Keefe, 402 U. S. 415 (1971); Bantam Books, Inc. v. Sullivan, 372 U. S. 58, 70 (1963); Near v. Minnesota ex rel. Olson, 283 U. S. 697 (1931). Correlatively, the First and Fourteenth Amendments also protect the right of the public to receive such information and ideas as are published. Kleindienst v. Mandel, 408 U. S., at 762-763; Stanley v. Georgia, 394 U. S. 557, 564 (1969). “In Branzburg v. Hayes, 408 U. S. 665 (1972), the Court went further and acknowledged that ‘news gathering is not without its First Amendment protections/ id., at 707, for ‘without some protection for seeking out the news, freedom of the press could be eviscerated/ id., at 681.” Id., at 832-833. See, e. g., Virginia Pharmacy Board v. Virginia Citizens Consumer Council, 425 U. S. 748, 764-765; Garrison v. Louisiana, 379 U. S. 64, 77; New York Times Co. v. Sullivan, 376 U. S. 254, 266-270; Associated Press v. United States, 326 U. S. 1, 20; Grosjean v. American Press Co., 297 U. S. 233, 250. See also Branzburg v. Hayes, 408 U. S. 665, 726 n. 2 (Stewart, J., dissenting). See also Lamont v. Postmaster General, 381 U. S. 301; Red Lion Broadcasting Co. v. FCC, 395 U. S. 367, 390; Stanley v. Georgia, 394 U. S. 557, 564; Martin v. City of Struthers, 319 U. S. 141; Marsh v. Alabama, 326 U. S. 501. “'vyhat is at stake here is the societal function of the First Amendment in preserving free public discussion of governmental affairs. No aspect of that constitutional guarantee is more rightly" }, { "docid": "22318192", "title": "", "text": "contexts this Court has referred to a First Amendment right to “receive information and ideas”: “It is now well established that the Constitution protects the right to receive information and ideas. 'This freedom [of speech and press] . . . necessarily protects the right to receive . . . Martin v. City of Struthers, 319 U. S. 141, 143 (1943) . . . .” Stanley v. Georgia, 394 U. S. 557, 564 (1969). This was one basis for the decision in Thomas v. Collins, 323 U. S. 516 (1945). The Court there held that a labor organizer’s right to speak and the rights of workers “to hear what he had to say,” id., at 534, were both abridged by a state law requiring organizers to register before soliciting union membership. In a very different situation, Me. Justice White, speaking for a unanimous Court upholding the FCC’s “fairness doctrine” in Red Lion Broadcasting Co. v. FCC, 395 U. S. 367, 386-390 (1969), said: “It is the purpose of the First Amendment to preserve an uninhibited marketplace of ideas in which truth will ultimately prevail .... It is the right of the public to receive suitable access to social, political, esthetic, moral, and other ideas and experiences which is crucial here. That right may not constitutionally be abridged either by Congress or by the FCC.” Id., at 390. And in Lamont v. Postmaster General, 381 U. S. 301 (1965), the Court held that a statute permitting the Government to hold “communist political propaganda” arriving in the mails from abroad unless the addressee affirmatively requested in writing that it be delivered to him placed an unjustifiable burden on the addressee’s First Amendment right. This Court has recognized that this right is “nowhere more vital” than in our schools and universities. Shelton v. Tucker, 364 U. S. 479, 487 (1960); Sweezy v. New Hampshire, 354 U. S. 234, 250 (1957) (plurality opinion); Keyishian v. Board of Regents, 385 U. S. 589, 603 (1967). See Epperson v. Arkansas, 393 U. S. 97 (1968). In the present case, the District Court majority held: “The concern of" }, { "docid": "22397895", "title": "", "text": "Miami Herald Publishing Co. v. Tornillo, 418 U. S. 241 (1974); Branzburg v. Hayes, 408 U. S. 665, 707 (1972); New York Times Co. v. United States, 403 U. S. 713 (1971); Mills v. Alabama, 384 U. S. 214, 218-219 (1966); Grosjean v. American Press Co., Inc., 297 U. S. 233, 250 (1936). See also Herbert v. Lando, 441 U. S. 153, 180-199 (1979) (Brennan, J., dissenting in part); Saxbe v. Washington Post Co., 417 U. S. 843, 850 (1974) (Powell, J., dissenting); Pittsburgh Press Co. v. Pittsburgh Comm’n on Human Relations, 413 U. S. 376, 393 (1973) (Burger, C. J., dissenting); Red Lion Broadcasting Co. v. FCC, 395 U. S. 367, 390 (1969); Time, Inc. v. Hill, 385 U. S. 374, 389 (1967); Stewart, “Or of the Press,” 26 Hastings L. J. 631 (1975). In light of the “increasingly prominent role of mass media in our society, and the awesome power it has placed in the hands of a select few,” Gertz, 418 U. S., at 402 (White, J., dissenting), protection for the speech of nonmedia defendants is essential to ensure a diversity of perspectives. See J. Barron, Freedom of the Press for Whom? (1973). “[U]ninhibited, robust and wide-open” debate, New York Times Co. v. Sullivan, 376 U. S., at 270, among nonmedia speakers is as essential to the fostering and development of an individual’s political thought as is such debate in the mass media. See J. Klapper, The Effects of Mass Communications (1960). Justice Powell’s opinion does not expressly reject the media/ nonmedia distinction, but does expressly decline to apply that distinction to resolve this case. One searches Gertz in vain for a single word to support the proposition that limits on presumed and punitive damages obtained only when speech involved matters of public concern. Gertz could not have been grounded in such a premise. Distrust of placing in the courts the power to decide what speech was of public concern was precisely the rationale Gertz offered for rejecting the Rosenbloom plurality approach. 418 U. S., at 346. It would have been incongruous for the Court to go" }, { "docid": "22642259", "title": "", "text": "S. 323, 343 (1974), have played a dominant and essential role in serving the “informative function,” Branzburg v. Hayes, 408 U. S. 665, 705 (1972), protected by the First Amendment. “The press cases emphasize the special and constitutionally recognized role of that institution in informing and educating the public, offering criticism, and providing a forum for discussion and debate.” First National Bank of Boston v. Bellotti, 435 U. S. 765, 781 (1978). “The newspapers, magazines and other journals of the country, it is safe to say, have shed and continue to shed, more light on the public and business affairs of the nation than any other instrumentality of publicity; and since informed public opinion is the most potent of all restraints upon misgovernment, the suppression or abridgement of the publicity afforded by a free press cannot be regarded otherwise than with grave concern.” Grosjean v. American Press Co., supra, at 250. An editorial privilege would thus not be merely personal to respondents, but would shield the press in its function “as an agent of the public at large. . . . The press is the necessary representative of the public’s interest in this context and the instrumentality which effects the public’s right.” Saxbe v. Washington Post Co., 417 U. S. 843, 863-864 (1974) (Powell, J., dissenting). Ill Miami Herald Publishing Co. v. Tornillo, 418 U. S. 241 (1974), struck down as undue interference with the editorial process a Florida statute granting a political candidate a right to equal space to reply to criticisms of his record by a newspaper. “Even if a newspaper would face no additional costs to comply with a compulsory access law and would not be forced to forgo publication of news or opinion by the inclusion of a reply, the Florida statute fails to clear the barriers of the First Amendment because of its intrusion into the function of editors. A newspaper is more than a passive receptacle or conduit for news, comment, and advertising. The choice of material to go into a newspaper, and the decisions made as to limitations on the size and content" }, { "docid": "22691951", "title": "", "text": "(1945). Similarly, the Court’s decisions involving corporations in the business of communication or entertainment are based not only on the role of the First Amendment in fostering individual self-expression but also on its role in affording the public access to discussion, debate, and the dissemination of information and ideas. See Red Lion Broadcasting Co. v. FCC, supra; Stanley v. Georgia, 394 U. S. 557, 564 (1969); Time, Inc. v. Hill, 385 U. S. 374, 389 (1967). Even decisions seemingly based exclusively on the individual’s right to express himself acknowledge that the expression may contribute to society’s edification. Winters v. New York, 333 U. S. 507, 510 (1948). Nor do our recent commercial speech cases lend support to appellee’s business interest theory. They illustrate that the First Amendment goes beyond protection of the press and the self-expression of individuals to prohibit government from limiting the stock of information from which members of the public may draw. A commercial advertisement is constitutionally protected not so much because it pertains to' the seller’s business as because it furthers the societal interest in the “free flow of commercial information.” Virginia State Bd. of Pharmacy v. Virginia Citizens Consumer Council, 425 U. S. 748, 764 (1976); see Linmark Associates, Inc. v. Willingboro, 431 U. S. 85,95 (1977). C We thus find no support in the First or Fourteenth Amendment, or in the decisions of this Court, for the proposition that speech that otherwise would be within the protection of the First Amendment loses that protection simply because its source is a corporation that cannot prove, to the satisfaction of a court, a material effect on its business or property. The “materially affecting” requirement is not an identification of the boundaries of corporate speech etched by the Constitution itself. Rather, it amounts to an impermissible legislative prohibition of speech based on the identity of the interests that spokesmen may represent in public debate over controversial issues and a requirement that the speaker have a sufficiently great interest in the subject to justify communication. Section 8 permits a corporation to communicate to the public its views on" }, { "docid": "22691950", "title": "", "text": "n. 14, supra. In such cases, the speech would be connected to the corporation’s business almost by definition. But the effect on the business of the corporation was not the governing rationale in any of these decisions. None of them mentions, let alone attributes significance to, the fact that the subject of the challenged communication materially affected the corporation’s business. The press cases emphasize the special and constitutionally recognized role of that institution in informing and educating the public, offering criticism, and providing a forum for discussion and debate. Mills v. Alabama, 384 U. S., at 219; see Saxbe v. Washington Post Co., 417 U. S. 843, 863-864 (1974) (Powell, J., dissenting). But the press does not have a monopoly on either the First Amendment or the ability to enlighten. Cf. Buckley v. Valeo, 424 U. S., at 51 n. 56; Red Lion Broadcasting Co. v. FCC, 395 U. S. 367, 389-390 (1969); New York Times Co. v. Sullivan, 376 U. S. 254, 266 (1964); Associated Press v. United States, 326 U. S. 1, 20 (1945). Similarly, the Court’s decisions involving corporations in the business of communication or entertainment are based not only on the role of the First Amendment in fostering individual self-expression but also on its role in affording the public access to discussion, debate, and the dissemination of information and ideas. See Red Lion Broadcasting Co. v. FCC, supra; Stanley v. Georgia, 394 U. S. 557, 564 (1969); Time, Inc. v. Hill, 385 U. S. 374, 389 (1967). Even decisions seemingly based exclusively on the individual’s right to express himself acknowledge that the expression may contribute to society’s edification. Winters v. New York, 333 U. S. 507, 510 (1948). Nor do our recent commercial speech cases lend support to appellee’s business interest theory. They illustrate that the First Amendment goes beyond protection of the press and the self-expression of individuals to prohibit government from limiting the stock of information from which members of the public may draw. A commercial advertisement is constitutionally protected not so much because it pertains to' the seller’s business as because it furthers" }, { "docid": "22796587", "title": "", "text": "of the First Amendment.” Red Lion Broadcasting Co. v. FCC, supra, at 390. Over 50 years ago, Mr. Justice Holmes sounded what has since become a dominant theme in applying the First Amendment to the changing problems of our Nation. \"[T]he ultimate good,” he declared, “is better reached by free trade in ideas,” and “the best test of truth is the power of the thought to get itself accepted in the competition of the market . . . .” Abrams v. United States, 250 U. S. 616, 630 (1919) (dissenting opinion); see also Whitney v. California, 274 U. S. 357, 375-376 (1927) (Brandeis, J., concurring); Gitlow v. New York, 268 U. S. 652, 672-673 (1925) (Holmes, J., dissenting). Indeed, the First Amendment itself testifies to our “profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open,” and the Amendment “rests on the assumption that the widest possible dissemination of information from diverse and antagonistic sources is essential to the welfare of the public . . . .” Associated Press v. United States, 326 U. S. 1, 20 (1945). For “it is only through free debate and free exchange of ideas that government remains responsive to the will of the people and peaceful change is effected.” Terminiello v. Chicago, 337 U. S. 1, 4 (1949); see also Thornhill v. Alabama, 310 U. S. 88, 102 (1940); Palko v. Connecticut, 302 U. S. 319, 326-327 (1987). With considerations such as these in mind, we have specifically declared that, in the context of radio and television broadcasting, the First Amendment protects “the right of the public to receive suitable access to social, political, esthetic, moral, and other ideas and experiences . . . Red Lion Broadcasting Co. v. FCC, supm, at 390. And, because “[i]t is the purpose of the First Amendment to preserve an uninhibited marketplace of ideas in which truth will ultimately prevail, rather than to countenance monopolization of that market, whether it be by the Government itself or a private licensee,” “[i]t is the right of the viewers and listeners, not the right" }, { "docid": "22642258", "title": "", "text": "of the public to receive suitable access to social, political, esthetic, moral, and other ideas and experiences,” Red Lion Broadcasting Co. v. FCC, 395 U. S. 367, 390 (1969) (emphasis supplied), and-to “the circulation of information to which the public is entitled in virtue of the constitutional guaranties.” Grosjean v. American Press Co., 297 U. S. 233, 250 (1936) (emphasis supplied). In Time, Inc. v. Hill, 385 U. S. 374 (1967), we stated that the guarantees of the First Amendment “are not for the benefit of the press so much as for the benefit of all of us. A broadly defined freedom of the press assures the maintenance of our political system and an open society.” Id., at 389. The editorial privilege claimed by respondents must be carefully analyzed to determine whether its creation would significantly further these social values recognized by our prior decisions. In this analysis it is relevant to note that respondents are representatives of the communications media, and that the “press and broadcast media,” Gertz v. Robert Welch, Inc., 418 U. S. 323, 343 (1974), have played a dominant and essential role in serving the “informative function,” Branzburg v. Hayes, 408 U. S. 665, 705 (1972), protected by the First Amendment. “The press cases emphasize the special and constitutionally recognized role of that institution in informing and educating the public, offering criticism, and providing a forum for discussion and debate.” First National Bank of Boston v. Bellotti, 435 U. S. 765, 781 (1978). “The newspapers, magazines and other journals of the country, it is safe to say, have shed and continue to shed, more light on the public and business affairs of the nation than any other instrumentality of publicity; and since informed public opinion is the most potent of all restraints upon misgovernment, the suppression or abridgement of the publicity afforded by a free press cannot be regarded otherwise than with grave concern.” Grosjean v. American Press Co., supra, at 250. An editorial privilege would thus not be merely personal to respondents, but would shield the press in its function “as an agent of the" }, { "docid": "22691949", "title": "", "text": "right when it has been asserted by corporations. See, e. g., Times Film Corp. v. Chicago, 365 U. S. 43, 47 (1961); Kingsley Int’l Pictures Corp. v. Regents, 360 U. S. 684, 688 (1959); Joseph Burstyn, supra. In Grosjean v. American Press Co., 297 U. S. 233, 244 (1936), the Court rejected the very reasoning adopted by the Supreme Judicial Court and did not rely on the corporation's property rights under the Fourteenth Amendment in sustaining its freedom of speech. Yet appellee suggests that First Amendment rights generally have been afforded only to corporations engaged in the communications business or through which individuals express themselves, and the court below apparently accepted the “materially affecting” theory as the conceptual common denominator between appellee’s position and the precedents of this Court. It is true that the “materially affecting” requirement would have been satisfied in the Court’s decisions affording protection to the speech of media corporations and corporations otherwise in the business of communication or entertainment, and to the commercial speech of business corporations. See cases cited in n. 14, supra. In such cases, the speech would be connected to the corporation’s business almost by definition. But the effect on the business of the corporation was not the governing rationale in any of these decisions. None of them mentions, let alone attributes significance to, the fact that the subject of the challenged communication materially affected the corporation’s business. The press cases emphasize the special and constitutionally recognized role of that institution in informing and educating the public, offering criticism, and providing a forum for discussion and debate. Mills v. Alabama, 384 U. S., at 219; see Saxbe v. Washington Post Co., 417 U. S. 843, 863-864 (1974) (Powell, J., dissenting). But the press does not have a monopoly on either the First Amendment or the ability to enlighten. Cf. Buckley v. Valeo, 424 U. S., at 51 n. 56; Red Lion Broadcasting Co. v. FCC, 395 U. S. 367, 389-390 (1969); New York Times Co. v. Sullivan, 376 U. S. 254, 266 (1964); Associated Press v. United States, 326 U. S. 1, 20" }, { "docid": "22171049", "title": "", "text": "whose views should be expressed on this unique medium.” Red Lion Broadcasting Co. v. FCC, 395 U. S. 367, 390 (1969). The Government’s role in distributing the limited number of broadcast licenses is not merely that of a “traffic officer,” National Broadcasting Co. v. United States, 319 U. S. 190, 215 (1943); rather, it is axiomatic that broadcasting may be regulated in light of the rights of the viewing and listening audience and that “the widest possible dissemination of information from diverse and antagonistic sources is essential to the welfare of the public.” Associated Press v. United States, 326 U. S. 1, 20 (1945). Safeguarding the public’s right to receive a diversity of views and information over the airwaves is therefore an integral component of the FCC’s mission. We have observed that “ ‘the “public interest” standard necessarily invites reference to First Amendment principles,’” FCC v. National Citizens Committee for Broadcasting, 436 U. S. 775, 795 (1978), quoting Columbia Broadcasting System, Inc. v. Democratic National Committee, 412 U. S. 94, 122 (1973), and that the Communications Act of 1934 has designated broadcasters as “fiduciaries for the public.” FCC v. League of Women Voters of Cal., 468 U. S. 364, 377 (1984). “[T]he people as a whole retain their interest in free speech by radio [and other forms of broadcast] and their collective right to have the medium function consistently with the ends and purposes of the First Amendment,” and “[i]t is the right of the viewers and listeners, not the right of the broadcasters, which is paramount.” Red Lion, supra, at 390. “Congress may . . . seek to assure that the public receives through this medium a balanced presentation of information on issues of public importance that otherwise might not be addressed if control of the medium were left entirely in the hands of those who own and operate broadcasting stations.” League of Women Voters, supra, at 377. Against this background, we conclude that the interest in enhancing broadcast diversity is, at the very least, an important governmental objective and is therefore a sufficient basis for the Commission’s minority" }, { "docid": "22397894", "title": "", "text": "number of subscribers.” Indeed, it would be paradoxical to increase protection to statements injurious to reputation as the size of their audience, and hence their potential to injure, grows. Cf. Keeton v. Hustler Magazine, Inc., 465 U. S. 770, 781 (1984). Owing to transformations in the technological and economic structure of the communications industry, there has been an increasing convergence of what might be labeled “media” and “nonmedia.” Pool, The New Technologies: Promise of Abundant Channels at Lower Cost, in What’s News: The Media in American Society 81, 87 (1981). See also I. Pool, Technologies of Freedom (1983); U. S. Federal Trade Commission, Media Policy Session: Technology and Legal Change (1979); Subcommittee on Telecommunications, Consumer Protection, and Finance of the House Committee on Energy and Commerce, Telecommunications in Transition: The Status of Competition in the Telecommunications Industry, 97th Cong., 1st Sess. (Comm. Print 1981). See, e. g., Minneapolis Star & Tribune Co. v. Minnesota Comm’r of Revenue, 460 U. S. 575, 585 (1983); Columbia Broadcasting System, Inc. v. FCC, 453 U. S. 367, 395 (1981); Miami Herald Publishing Co. v. Tornillo, 418 U. S. 241 (1974); Branzburg v. Hayes, 408 U. S. 665, 707 (1972); New York Times Co. v. United States, 403 U. S. 713 (1971); Mills v. Alabama, 384 U. S. 214, 218-219 (1966); Grosjean v. American Press Co., Inc., 297 U. S. 233, 250 (1936). See also Herbert v. Lando, 441 U. S. 153, 180-199 (1979) (Brennan, J., dissenting in part); Saxbe v. Washington Post Co., 417 U. S. 843, 850 (1974) (Powell, J., dissenting); Pittsburgh Press Co. v. Pittsburgh Comm’n on Human Relations, 413 U. S. 376, 393 (1973) (Burger, C. J., dissenting); Red Lion Broadcasting Co. v. FCC, 395 U. S. 367, 390 (1969); Time, Inc. v. Hill, 385 U. S. 374, 389 (1967); Stewart, “Or of the Press,” 26 Hastings L. J. 631 (1975). In light of the “increasingly prominent role of mass media in our society, and the awesome power it has placed in the hands of a select few,” Gertz, 418 U. S., at 402 (White, J., dissenting), protection for the speech" }, { "docid": "22642257", "title": "", "text": "freedoms “are delicate and vulnerable, as well as supremely precious in our society,” id., at 433, and that a litigant should therefore be given standing to assert this more general social interest in the “vindication of freedom of expression.” Dombrowski v. Pfister, 380 U. S. 479, 487 (1965). See Thornhill v. Alabama, 310 U. S. 88, 97-98 (1940). It is also the meaning of the “actual malice” standard set forth in New York Times Co. v. Sullivan, 376 U. S., at 279-280. Even though false information may have no intrinsic First Amendment worth, St. Amant v. Thompson, 390 U. S. 727, 732 (1968), and even though a particular defendant may have published false information, his freedom of expression is nevertheless protected in the absence of actual malice because, “to insure the ascertainment and publication of the truth about public affairs, it is essential that the First Amendment protect some erroneous publications as well as true ones.” Ibid. In recognition of the social values served by the First Amendment, our decisions have referred to “the right of the public to receive suitable access to social, political, esthetic, moral, and other ideas and experiences,” Red Lion Broadcasting Co. v. FCC, 395 U. S. 367, 390 (1969) (emphasis supplied), and-to “the circulation of information to which the public is entitled in virtue of the constitutional guaranties.” Grosjean v. American Press Co., 297 U. S. 233, 250 (1936) (emphasis supplied). In Time, Inc. v. Hill, 385 U. S. 374 (1967), we stated that the guarantees of the First Amendment “are not for the benefit of the press so much as for the benefit of all of us. A broadly defined freedom of the press assures the maintenance of our political system and an open society.” Id., at 389. The editorial privilege claimed by respondents must be carefully analyzed to determine whether its creation would significantly further these social values recognized by our prior decisions. In this analysis it is relevant to note that respondents are representatives of the communications media, and that the “press and broadcast media,” Gertz v. Robert Welch, Inc., 418 U." }, { "docid": "22318191", "title": "", "text": "otherwise. United States ex rel. Turner v. Williams, 194 U. S. 279, 292 (1904); United States ex rel. Knauff v. Shaughnessy, 338 U. S. 537, 542 (1950); Galvan v. Press, 347 U. S. 522, 530-532 (1954); see Harisiades v. Shaughnessy, 342 U. S. 580, 592 (1952). The appellees concede this. Brief for Appellees 33; Tr. of Oral Arg. 28. Indeed, the American appellees assert that “they sue to enforce their rights, individually and as members of the American public, and assert none on the part of the invited alien.” Brief for Appellees 14. “Dr. Mandel is in a sense made a plaintiff because he is symbolic of the problem.” Tr. of Oral Arg. 22. The case, therefore, comes down to the narrow issue whether the First Amendment confers upon the appellee professors, because they wish to hear, speak, and debate with Mandel in person, the ability to determine that Mandel should be permitted to enter the country or, in other words, to compel the Attorney General to allow Mandel’s admission. IV In a variety of contexts this Court has referred to a First Amendment right to “receive information and ideas”: “It is now well established that the Constitution protects the right to receive information and ideas. 'This freedom [of speech and press] . . . necessarily protects the right to receive . . . Martin v. City of Struthers, 319 U. S. 141, 143 (1943) . . . .” Stanley v. Georgia, 394 U. S. 557, 564 (1969). This was one basis for the decision in Thomas v. Collins, 323 U. S. 516 (1945). The Court there held that a labor organizer’s right to speak and the rights of workers “to hear what he had to say,” id., at 534, were both abridged by a state law requiring organizers to register before soliciting union membership. In a very different situation, Me. Justice White, speaking for a unanimous Court upholding the FCC’s “fairness doctrine” in Red Lion Broadcasting Co. v. FCC, 395 U. S. 367, 386-390 (1969), said: “It is the purpose of the First Amendment to preserve an uninhibited marketplace" }, { "docid": "22726249", "title": "", "text": "by the ap-pellees as recipients of the information, and not solely, if at all, by the advertisers themselves who seek to disseminate that information. Freedom of speech presupposes a willing speaker. But where a speaker exists, as is the case here, the protection afforded is to the communication, to its source and to its recipients both. This is clear from the decided cases. In Lament v. Postmaster General, 381 U. S. 301 (1965), the Court upheld the First Amendment rights of citizens to receive political publications sent from abroad. More recently, in Kleindienst v. Mandel, 408 U. S. 753, 762-763 (1972), we acknowledged .that this Court has referred to a First Amendment right to “receive information and ideas,” and that freedom of speech “ ‘necessarily protects the right to receive.’ ” And in Procunier v. Martinez, 416 U. S. 396, 408-409 (1974), where censorship of prison inmates’ mail was under examination, we thought it unnecessary to assess the First Amendment rights of the inmates themselves, for it was reasoned that such censorship equally infringed the rights of noninmates to whom the correspondence was addressed. There are numerous other expressions to the same effect in the Court’s decisions. See, e. g„ Red Lion Broadcasting Co. v. FCC, 395 U. S. 367, 390 (1969); Stanley v. Georgia, 394 U. S. 557, 564 (1969); Griswold v. Connecticut, 381 U. S. 479, 482 (1965); Marsh v. Alabama, 326 U. S. 501, 505 (1946); Thomas v. Collins, 323 U. S. 516, 534 (1945); Martin v. Struthers, 319 U. S. 141, 143 (1943). If there is a right to advertise, there is a reciprocal right to receive the advertising, and it may be asserted by these appellees. IV The appellants contend that the advertisement of prescription drug prices is outside the protection of the First Amendment because it is “commercial speech.” There can be no question that in past decisions the Court has given some indication that commercial speech is unprotected. In Valentine v. Chrestensen, supra, the Court upheld a New York statute that prohibited the distribution of any “handbill, circular ... or other advertising matter" }, { "docid": "22076411", "title": "", "text": "without its First Amendment protections/ id., at 707, for ‘without some protection for seeking out the news, freedom of the press could be eviscerated/ id., at 681.” Id., at 832-833. See, e. g., Virginia Pharmacy Board v. Virginia Citizens Consumer Council, 425 U. S. 748, 764-765; Garrison v. Louisiana, 379 U. S. 64, 77; New York Times Co. v. Sullivan, 376 U. S. 254, 266-270; Associated Press v. United States, 326 U. S. 1, 20; Grosjean v. American Press Co., 297 U. S. 233, 250. See also Branzburg v. Hayes, 408 U. S. 665, 726 n. 2 (Stewart, J., dissenting). See also Lamont v. Postmaster General, 381 U. S. 301; Red Lion Broadcasting Co. v. FCC, 395 U. S. 367, 390; Stanley v. Georgia, 394 U. S. 557, 564; Martin v. City of Struthers, 319 U. S. 141; Marsh v. Alabama, 326 U. S. 501. “'vyhat is at stake here is the societal function of the First Amendment in preserving free public discussion of governmental affairs. No aspect of that constitutional guarantee is more rightly treasured than its protection of the ability of our people through free and open debate to consider and resolve their own destiny. ... It embodies our Nation’s commitment to popular self-determination and our abiding faith that the surest course for developing sound national policy lies in a free exchange of views on public issues. And public debate must not only be unfettered; it must also be informed. For that reason this Court has repeatedly stated that First Amendment concerns encompass the receipt of information and ideas as well as the right of free expression.” Saxbe v. Washington Post Co., 417 U. S. 843, 862-863 (Powell, J., dissenting). See A. Meiklejohn, Free Speech and Its Relation to Self-Government 26 (1948): “Just so far as . . . the citizens who are to decide an issue are denied acquaintance with information or opinion or doubt or disbelief or criticism which is relevant to that issue, just so far the result must be ill-considered, ill-balanced planning, for the general good. It is that mutilation of the thinking process" }, { "docid": "22171154", "title": "", "text": "valued views: No matter what its purpose, the Government will be able to claim that it has favored certain persons for their ability, stemming from race, to contribute distinctive views or perspectives. Even considered as other than a justification for using race classifications, the asserted interest in viewpoint diversity falls short of being weighty enough. The Court has recognized an interest in obtaining diverse broadcasting viewpoints as a legitimate basis for the FCC, acting pursuant to its “public interest” statutory mandate, to adopt limited measures to increase the number of competing licensees and to encourage licensees to present varied views on issues of public concern. See, e. g., FCC v. National Citizens Committee for Broadcasting, 436 U. S. 775 (1978); Red Lion Broadcasting Co. v. FCC, 395 U. S. 367 (1969); United States v. Storer Broadcasting Co., 351 U. S. 192 (1956); Associated Press v. United States, 326 U. S. 1 (1945); National Broadcasting Co. v. United States, 319 U. S. 190 (1943). We have also concluded that these measures do not run afoul of the First Amendment’s usual prohibition of Government regulation of the marketplace of ideas, in part because First Amendment concerns support limited but inevitable Government regulation of the peculiarly constrained broadcasting spectrum. See, e. g., Red Lion, supra, at 389-390. But the conclusion that measures adopted to further the interest in diversity of broadcasting viewpoints are neither beyond the FCC’s statutory authority nor contrary to the First Amendment hardly establishes the interest as important for equal protection purposes. The FCC’s extension of the asserted interest in diversity of views in these cases presents, at the very least, an unsettled First Amendment issue. The FCC has concluded that the American broadcasting public receives the incorrect mix of ideas and claims to have adopted the challenged policies to supplement programming content with a particular set of views. Although we have approved limited measures de signed to increase information and views generally, the Court has never upheld a broadcasting measure designed to amplify a distinct set of views or the views of a particular class of speakers. Indeed, the" } ]

[ { "docid": "22662840", "title": "", "text": "in the Hawk opinion points to past exhaustion. Very little support can be found in the long course of previous deci sions by this Court elaborating the rule of exhaustion for the proposition that it was regarded at the time of the revision of the Judicial Code as jurisdictional rather than merely as a rule ordering the state and federal proceedings so as to eliminate unnecessary federal-state friction. There is thus no warrant for attributing to Congress, in the teeth of the language of § 2254, intent to work a radical innovation in the law of habeas corpus. We hold that § 2254 is limited in its application to failure to exhaust state remedies still open to the habeas applicant at the time he files his application in federal court. Parenthetically, we note that our holding in Irvin v. Dowd, 359 U. S. 394, is not inconsistent. Our holding there was that since the Indiana Supreme Court had reached the merits of Irvin’s federal claim, the District Court was not barred by § 2254 from determining the merits of Irvin’s constitutional contentions. IV. Noia timely sought and was denied certiorari here from the adverse decision of the New York Court of Appeals on his coram nobis application, and therefore the case does not necessarily draw in question the continued vitality of the holding in Darr v. Bur ford, supra, that a state prisoner must ordinarily seek certiorari in this Court as a precondition of applying for federal habeas corpus. But what we hold today necessarily overrules Darr v. Burford to the extent it may be thought to have barred a state prisoner from federal habeas relief if he had failed timely to seek certiorari in this Court from an adverse state decision, Furthermore, our decision today affects all procedural hurdles to the achievement of swift and imperative justice on habeas corpus, and because the hurdle erected by Darr v. Bur ford is unjustifiable under the principles we have expressed, even insofar as it may be deemed merely an aspect of the statutory requirement of present exhaustion, that decision in that" } ]

[ { "docid": "5546843", "title": "", "text": "In Darr v. Burford, 339 U.S. 200, 70 S.Ct. 587, 94 L.Ed. 761 (1950), Darr, a prisoner of the State of Oklahoma, had been convicted of armed bank robbery. He took no direct appeal from his conviction but later applied to the Oklahoma Court of Criminal Appeals for habeas corpus alleging violation of his constitutional rights. These allegations were reviewed by the state court and the writ was denied on the merits. No application was made to the Supreme Court for writ of certiorari. A federal district court then denied Darr’s application for habeas corpus on the ground that Darr’s failure to apply to the Supreme Court for certiorari was a failure to meet the requirement of exhaustion of state remedies. Ex parte Darr, 77 F.Supp. 553 (E. D.Okl.1948). The Court of Appeals affirmed, Darr v. Burford, 172 F.2d 668 (10th Cir., 1949). The Supreme Court granted certiorari and held that ordinarily where the highest state court in a collateral proceeding had considered, on the merits, the alleged violation of constitutional rights, application by the prisoner to the Supreme Court for a writ of certiorari was a necessary step in exhaustion of his state remedies. 339 U.S. at page 208, 70 S.Ct. at page 592, 94 L.Ed. 761. However, the Court further indicated that the rule was not inflexible and recognized a possible exception, i. e., where the petitioner pleads or proves the existence of exceptional circumstances or circumstances of peculiar urgency excusing his failure to apply for certiorari. In Thomas v. Arizona, 356 U.S. 390, 392, 78 S.Ct. 885, 886-887, 2 L.Ed.2d 863 (1958), footnote 1, the Court said: “ * * * The normal rule that certiorari must be applied for here after a state conviction before habeas is sought in the District Court, Darr v. Burford, 339 U.S. 200 [70 S.Ct. 587, 94 L.Ed. 761] (1950), is not inflexible, however, and in special circumstances need not be complied with. Darr v. Burford, supra, at 210 [70 S.Ct. at 593, 94 L.Ed. 761], ‘Whether such circumstances exist calls for a factual appraisal by the [District Court] in each" }, { "docid": "20943614", "title": "", "text": "1962 at 10:00 a. m. At an informal conference held on August 20, 1962 in the chambers of this court, with counsel for both petitioner and respondent present, the court announced that the formal hearing to be held the next day would be limited to introducing into the record all relevant portions of the state proceedings and giving the petitioner opportunity to present to the court the exceptional circumstances relied on by him to take this case outside the rule laid down by Darr v. Burford, 339 U.S. 200, 70 S.Ct. 587, 94 L.Ed. 761. This rule, of course, is that a state prisoner cannot secure review of his conviction in the state court by means of habeas corpus proceedings in the federal District Court until he has exhausted all available state remedies and applied to the Supreme Court of the United States for certiorari to review adverse decisions of the highest state court, except in the event of exceptional circumstances. By delaying any hearing to permit the taking of testimony until such time as the court could consider the records of the state proceedings and determine whether such hearing would be necessary, the court was following the guide laid down in Brown v. Allen, 344 U.S. 443, at page 502, 73 S.Ct. 397, 97 L.Ed. 469, et seq., directing the District Judges on the procedure to be followed in the disposition of applications for habeas corpus by prisoners under sentence of state courts. In the instant petition the petitioner claims that his conviction was obtained in violation of rights guaranteed by the Fourteenth Amendment to the Constitution of the United States and was for that reason void. The petition contains five alleged violations of his constitutional rights, and they are, in substance, as follows: 1. It is the practice and custom in Arkansas for Negro men to receive death sentences for rapes committed upon white women whereas white men are not sentenced to die for rapes whether committed on white or Negro women and that this alleged practice and custom constitutes an unconstitutional application of the Arkansas rape statute" }, { "docid": "15061070", "title": "", "text": "court, and an application for certiorari had been denied. Admittedly, in the present case it cannot be said that the State Supreme Court has ruled on the claim of federal constitutional right, and there has been no petition for certiorari. Instead, the appellant chose a discretionary remedy which could well be disposed of on nonfederal grounds. The cases in which the state remedies may be exhausted without certiorari to the Supreme Court of the United States are, we think, cases where certiorari is unavailable because the state court decision was based upon some ade quate nonfederal ground, and where further state proceedings would be no more likely than those already had to secure a ruling by the state courts on the claim of federal constitutional right which would be subject to review on certiorari by the Supreme Court of the United States. In White v. Ragen, 1945, 324 U.S. 760, 767, 65 S.Ct. 978, 982, 89 L.Ed. 1348, after holding that under the circumstances there presented it was unnecessary for the petitioner, in order to exhaust his state remedies, to apply to the Supreme Court for certiorari to review the judgment of the Supreme Court of Illinois, the Court cautioned: “But any other state remedies, if available, must be exhausted before any application to the federal District Court. Ex parte Hawk, supra [321 U.S. 114] 116-117 [64 S.Ct. 448, 88 L.Ed. 572].” In Darr v. Burford, 1950, 339 U.S. 200, 209, note 28, 70 S.Ct. 587, 593, 94 L.Ed. 761, the Court referred to that ruling as follows: “We made it clear that while proper procedure does not require review in this Court of a judgment denying habeas corpus on an adequate state ground, other available state remedies must be exhausted before an application should be entertained in a district court. [324 U.S. at page] P. 767 [65 S.Ct. at page 982].” Habeas corpus in the Louisiana State Courts followed, if necessary, by certiorari to the Supreme Court of the United States would afford the appellant an adequate remedy to protect his claimed federal constitutional rights. Under the Court-developed doctrine" }, { "docid": "20943623", "title": "", "text": "Arkansas Supreme Court. This Court believes that the failure to exhaust this possible remedy precludes the raising of this issue in this Court under the rule in Darr v. Burford, 339 U.S. 200, 70 S.Ct. 587, 94 L.Ed. 761, unless there is some exceptional circumstance to take it outside the rule. At the hearing held in this Court on August 21, 1962 for that purpose, counsel for petitioner submitted two matters that he believed to be exceptional circumstances. One, that Arkansas has no adequate post-conviction procedure; and, two, that in both Mitchell No. 2 and Mitchell No. 3 the trial judges did not allow petitioner to present any evidence, and there being no record, there was nothing for the United States Supreme Court to consider. There are at least two post-conviction procedures which petitioner did follow. There was, of course, one additional post-conviction remedy available to a person convicted by an Arkansas State Court that was not utilized by petitioner, application for Writ of Certiorari to the 'United States Supreme Court, which petitioner failed to use in three different instances. Concerning the claimed absence of an adequate record, the case of Hawk v. Olson, 326 U.S. 271, 66 S.Ct. 116, 90 L.Ed. 61 holds that where there is no record, the United States Supreme •Court will decide from the facts well pleaded whether or not the petitioner is entitled to a hearing on a Constitutional -question. Therefore, this Court must and does find that there are no exceptional circumstances involved in this case which would allow this Court to consider ■this matter in view of the rule of Darr v. Burford, supra. This, of course, applies equally to all five of the allegations raised by petitioner. One or more phases of this case has been considered by the Supreme Court -of Arkansas on four separate occasions. On the first one, the appeal from conviction in the lower court, the appellate court had before it the pleadings, the testimony, and briefs of counsel. In its opinion the Court gave consideration to each point raised by the then appellant and its reasons" }, { "docid": "5546846", "title": "", "text": "corpus twice more, the last petition being to the Supreme Court of Ohio and alleging, among other matters, a denial of counsel at his trial and a deprivation of rights guaranteed by the Due Process Clause of the Fourteenth Amendment. The Supreme Court of Ohio denied the petition, holding that habeas corpus was not a substitute for appeal and was not available to remedy the defects alleged by the prisoner. Thus, it appears that the constitutional question had not been considered on its merits by the courts of the State of Ohio and relief had been denied on an independent state ground. Upon petition for writ of certiorari to review the ruling of the Supreme Court of Ohio, the Supreme Court of the United States, in a short per curiam opinion, said: “The petition for certiorari must be denied. The decision below and the several prior actions in the Ohio courts indicate that petitioner is without a state remedy to challenge his conviction upon the federal constitutional grounds asserted. In these circumstances, Darr v. Burford, 339 U.S. 200, 208 [70 S.Ct. 587, 94 L.Ed. 761], is not applicable and' a prisoner may, without first seeking certiorari here, file his application for habeas corpus in the appropriate United States District Court. [Emphasis following case citation supplied.] 28 U.S.C. § 2254. Massey v. Moore, 348 U.S. 105 [75 S.Ct. 145, 99 L.Ed. 135]; Frisbie v. Collins, 342 U.S. 519 [72 S.Ct. 509, 96 L.Ed. 541], Petitioner’s allegations,, if true, would present serious questions under the Fourteenth Amendment, and those allegations would therefore entitle him to a hearing. * * * ” 369 U.S. at 657, 82 S.Ct. at 993, 8 L.Ed.2d 178. In the case at bar it is clear that the federal question of alleged violation of Walker’s constitutional rights has-not been considered on the merits by any court of the State of Maryland. On the authority of Mattox v. Sacks, supra, we-hold that Walker was not required to* apply to Supreme Court for certiorari following affirmance of his conviction on direct appeal in or<jer to exhaust his-state remedies. Furthermore, as" }, { "docid": "23474370", "title": "", "text": "aggravating or mitigating. The State argues that we should not consider this issue because Harris did not present this claim of instructional error in either his first or second federal petition nor was this issue exhausted on direct appeal or in post-conviction proceedings in the California court system. A state prisoner who seeks relief under 28 U.S.C. § 2254 must provide the state courts a fair opportunity to correct any federal constitutional error committed in the trial court. Picard v. Connor, 404 U.S. 270, 275-276, 92 S.Ct. 509, 512, 30 L.Ed.2d 438 (1971); Anderson v. Harless, 459 U.S. 4, 6, 103 S.Ct. 276, 277, 74 L.Ed.2d 3 (1982) (per curiam). Thus, “the habeas petitioner must have ‘fairly presented’ to the state courts the ‘substance’ of his federal habeas corpus claim.” Anderson, 459 U.S. at 6, 103 S.Ct. at 277. “It is not enough that all the facts necessary to support the federal claim were before the state courts, or that a somewhat similar state-law claim was made.\" Id. (citations omitted). The Supreme Court recently stated: Because “it would be unseemly in our dual system of government for a federal district court to upset a state court conviction without an opportunity to the state courts to correct a constitutional violation,” federal courts apply the doctrine of comity, which “teaches that one court should defer action on causes properly within its jurisdiction until the courts of another sovereignty with concurrent powers, and already cognizant of the litigation, have had an opportunity to pass upon the matter.” Rose, 455 U.S. at 518, 102 S.Ct. at 1203 (quoting Darr v. Burford, 339 U.S. 200, 204, 70 S.Ct. 587, 590, 94 L.Ed. 761 (1950)). A. Federal Habeas Corpus Petitions. Harris claims that the issue of instructional error concerning age discrimination was “clearly raised in the first federal ha-beas corpus petition, and the only new aspect of the claim is the empirical support for it which has become apparent from the accumulated experience of capital sentencing in California.” The record does not support this assertion. In Harris’ Appellant’s Opening Brief filed in this court, he contended" }, { "docid": "23093779", "title": "", "text": "a hearing was had at which the relator appeared in person and by court-appointed counsel. Judge Brennan, in a memorandum decision, held that the relator’s “state court remedies in Michigan are exhausted and this court may assume jurisdiction.” We think that ruling right. United States ex rel. Smith v. Jackson, supra, and United States ex rel. Turpin v. Snyder, supra. It is true that ordinarily habeas corpus will not lie unless the relator has sought certiorari from the Supreme Court to review the state court proceedings. Darr v. Burford, 339 U.S. 200, 70 S.Ct. 587, 94 L.Ed. 761. But certiorari may be sought only from a final judgment, 28 U.S.C.A. § 1257, and it is clear that no such action has been taken by the Michigan Supreme Court in the present case. Moreover,, where, as here, the state court’s denial is based upon an adequate state ground, i. e., the refusal to hear the merits of the claim until the relator appears in open court, the failure to petition for certiorari does not bar a subsequent habeas corpus action. Darr v. Burford, supra; White v. Ragen, 324 U.S. 760, 65 S.Ct. 978, 89 L.Ed. 1348. As Judge Brennan observed, if the relator “is to obtain any relief by way of a resentence in the New York State courts as a first, rather than a second felony offender,, then of course he must be able to obtain same prior to his discharge from the New York State prison.” We come now to a recital of the facts relating to the constitutional question. It was undisputed that at the time of the Michigan episode the relator, a resident of New York, was a married man, 21 years old, and a private in the armed forces of the United States on duty at Fort Custer, Michigan. He was arrested on a charge of rape on Tuesday, June 29, 1943, and after a night in solitary confinement, on Wednesday morning, June 30, 1943, he was arraigned before the Circuit Court of Calhoun County, Michigan, at Battle Creek. In open court, an information as set" }, { "docid": "22443561", "title": "", "text": "reasonably be expected to support or discredit his story, abused its discretion because it deprived relator of a fair and meaningful hearing upon his claims. We do not think the court’s findings were clearly erroneous, but having regard for all the circumstances of this case, we agree that the hearing afforded relator was inadequate and therefore reverse the order dismissing the petition and remand the case for a further hearing. Prior to a consideration of the points urged by relator, two preliminary questions must be considered. The first is whether relator has exhausted his state court remedies and, more specifically, whether his failure to apply to the Supreme Court for a writ of certiorari after the New York state courts had rejected his federal constitutional claim bars him from obtaining relief in the federal district court by means of a writ of habeas corpus. The second preliminary matter is whether relator’s petition for the writ states upon its face a claim of a federal constitutional violation. Exhaustion of State Remedies. The district court found as a “fact,” though without any statement of the basis for its finding, that relator had exhausted his state court remedies. Since the state does not challenge this finding on appeal, we could accept this determination without examination of its correctness. See Thomas v. State of Arizona, 1958, 356 U.S. 390, 392 note 1, 78 S.Ct. 885, 2 L.Ed.2d 863. However, in view of the important role the exhaustion doctrine has assumed in the maintenance of a proper balance of authority between the national and state governments in our federal system, see Darr v. Burford, 1950, 339 U.S. 200, 204-208, 70 S.Ct. 587, 94 L.Ed. 761; 28 U.S.C. § 2254, we think it is appropriate that we consider the exhaustion question, although it has not been presented to us by the parties. We are, of course, in no way bound by the district court’s determination of this question, because, regardless of the appellation attached to the lower court’s finding, the question whether state remedies have been exhausted is one of law rather than fact. In December" }, { "docid": "7688793", "title": "", "text": "WISDOM, Circuit Judge. December 7, 1960, Ernest Whippier, represented by court-appointed counsel, was convicted of murder. The Superior Court of Bibb County, Georgia, sentenced Whippier to death by electrocution. The Georgia Supreme Court affirmed. Whippler v. State, 1962, 218 Ga. 198, 126 S.E.2d 744. The United States Supreme Court denied certiorari. Whippler v. Georgia, 1963, 375 U.S. 960, 84 S.Ct. 446, 11 L.Ed.2d 318. May 13, 1964, Whippier applied for federal habeas corpus. The district court, without holding an evi-dentiary hearing, dismissed the petition on the ground that Whippier, by not applying for state habeas corpus, had failed to exhaust his state remedies. We reverse: resort to Georgia courts is not necessary when Georgia law seems to be settled against post-conviction review of the petitioner’s newly raised constitutional claims. I. In Brown v. Allen, 1953, 344 U.S. 443, 73 S.Ct. 397, 97 L.Ed. 469, the Supreme Court said of the habeas corpus petitions then before it: “In each case petitions for certiorari to this Court for direct review of the state judgments rendered by the highest court of the state in the face of the same federal issues now presented by habeas corpus had been denied. “It is not necessary in such circumstances for the prisoner to ask the state for collateral relief, based on the same evidence and issues already decided by direct review with another petition for certiorari directed to this Court.” 344 U.S. at 447, 73 S.Ct. at 402. Three years before, the Court had reaffirmed the rule that a state prisoner must apply for- certiorari in the United States Supreme Court before seeking federal habeas corpus. Darr v. Burford, 1950, 339 U.S. 200, 70 S.Ct. 587, 94 L.Ed. 761. Brown v. Allen assumed the continuing vitality of this requirement. In Fay v. Noia, 1963, 372 U.S. 391, 83 S.Ct. 822, 9 L.Ed.2d 837, the Court struck down the highest barrier, posed by the exhaustion principle, holding that a state prisoner is never barred from federal habeas corpus by mere failure to exhaust state remedies no longer open to him. The exhaustion principle is a matter of" }, { "docid": "15061071", "title": "", "text": "exhaust his state remedies, to apply to the Supreme Court for certiorari to review the judgment of the Supreme Court of Illinois, the Court cautioned: “But any other state remedies, if available, must be exhausted before any application to the federal District Court. Ex parte Hawk, supra [321 U.S. 114] 116-117 [64 S.Ct. 448, 88 L.Ed. 572].” In Darr v. Burford, 1950, 339 U.S. 200, 209, note 28, 70 S.Ct. 587, 593, 94 L.Ed. 761, the Court referred to that ruling as follows: “We made it clear that while proper procedure does not require review in this Court of a judgment denying habeas corpus on an adequate state ground, other available state remedies must be exhausted before an application should be entertained in a district court. [324 U.S. at page] P. 767 [65 S.Ct. at page 982].” Habeas corpus in the Louisiana State Courts followed, if necessary, by certiorari to the Supreme Court of the United States would afford the appellant an adequate remedy to protect his claimed federal constitutional rights. Under the Court-developed doctrine of exhaustion of state remedies, now codified in 28 U.S. C.A. § 2254, the district court properly dismissed the application for habeas corpus. Affirmed. CAMERON, Circuit Judge, concurs in the result. . LSA-Revised Statutes, Title 15, Sec. 266, provides as follows: “The allowance or disallowance of the withdrawal of a plea of guilty is within the sound discretion of the court.” . The other being by habeas corpus, as provided in LSA-Revised Statutes, Title 15, Sections 113 and 114. . Other than those involving “special circumstances.” See Darr v. Burford, 1950, 339 U.S. 200, 210, 70 S.Ct. 587, 94 L.Ed. 761; Weston v. Sigler, 1959, 361 U.S. 37, 80 S.Ct. 141, 4 L.Ed.2d 111, considered in connection with Weston v. Walker, 1959, 361 U.S. 876, 80 S.Ct. 141, 4 L.Ed.2d 115. . See Irvin v. Dowd, 1959, 350 U.S. 394, 405, 79 S.Ct. 825, 3 L.Ed.2d 900." }, { "docid": "7688794", "title": "", "text": "highest court of the state in the face of the same federal issues now presented by habeas corpus had been denied. “It is not necessary in such circumstances for the prisoner to ask the state for collateral relief, based on the same evidence and issues already decided by direct review with another petition for certiorari directed to this Court.” 344 U.S. at 447, 73 S.Ct. at 402. Three years before, the Court had reaffirmed the rule that a state prisoner must apply for- certiorari in the United States Supreme Court before seeking federal habeas corpus. Darr v. Burford, 1950, 339 U.S. 200, 70 S.Ct. 587, 94 L.Ed. 761. Brown v. Allen assumed the continuing vitality of this requirement. In Fay v. Noia, 1963, 372 U.S. 391, 83 S.Ct. 822, 9 L.Ed.2d 837, the Court struck down the highest barrier, posed by the exhaustion principle, holding that a state prisoner is never barred from federal habeas corpus by mere failure to exhaust state remedies no longer open to him. The exhaustion principle is a matter of comity, not a matter of jurisdiction. In federal habeas proceedings, “jurisdiction is confirmed by the allegation of an unconstitutional restraint and is not defeated by anything that may occur in the state court proceedings”. Fay v. Noia, 372 U.S. at 426, 83 S.Ct. at 842, 9 L.Ed.2d at 861-2. The Court overruled Darr v. Burford declaring, in effect, that application for certiorari in the United States Supreme Court is not properly to be regarded as a state remedy. But Fay v. Noia expressly left intact the “settled principles” of Brown v. Allen concerning “presently available state remedies”. The current law of exhaustion, is, at the very least, this: A habeas applicant who has sought direct review of his conviction (including all the constitutional issues raised in his habeas petition) in the highest state court, even though he has sought neither certiorari in the United States Supreme Court nor collateral review in any state court, has exhausted his state remedies. If the habeas petitioner raises constitutional issues he has never presented to the state courts, and" }, { "docid": "6790624", "title": "", "text": "XIV Amendment of the Constitution of the United States of America, where in a trial of a capital offense by jury, the trial court permitted to remain in the jury box and sit in judgment, three jurors who had entered the jury box with fixed opinion as to petitioner’s guilt, and retained such opinion while being examined on voir dire?” . Darr v. Burford, 339 U.S. 200, 214, 70 S.Ct. 587, 600, 94 L.Ed. 761. In his dissenting opinion in this case, at pago 224, 70 S.Ct. at page 600, discussing a point concerning which the court was not in disagreement, Justice Frankfurter said: “ * * * if t]le petition is granted and the State’s view of his federal claim is sustained here, he may still sue out a writ in the District Court. * * * ” . The reason given in Darr v. Burford, at pages 206, 212, 216, 70 S.Ct. 587. why there must be a petition for certiorari from the state court judgment before a state prisoner may apply for federal habeas corpus, was that it was unseemly for a federal district court to, in effect, reverse a state Supreme Court. How much more unseemly it would be for a federal district court, in effect, to reverse both the state Supreme Court and the United States Supreme Court. . The fact that the district court gave a different reason for refusing these requests with respect to this point is immaterial. . In its petition for a writ of certiorari as to this point, appellant did not expressly invoke the equal protection clause. But if this omission denies the Supreme Court decision the status of an adjudication as to that issue, it also represents a non-compliance with the rule of Darr v. Burford, concerning the necessity of applying for certiorari. No special circumstances excusing failure to invoke the equal protection clause in its petition for certiorari were here asserted. . We accordingly need not decide whether: (1) evidence tending to impeach a jury verdict in a state criminal trial is ever admissible in a federal habeas" }, { "docid": "10910767", "title": "", "text": "STEPHENS, Circuit Judge. Sampsell was convicted in a California Superior Court of murder in the first degree, assault with a deadly weapon with intent to murder, and robbery in the first degree, and sentenced to death. The California Supreme Court affirmed the judgment, People v. Sampsell, 1950, 34 Cal.2d 757, 214 P.2d 813, and the United States Supreme Court denied certiorari, Sampsell v. California, 1950, 339 U.S. 990, 70 S.Ct. 1016, 94 L.Ed. 1391. He is here appealing from a judgment of the United States District Court dismissing his petition for the issuance of the writ of habeas corpus. The judgment followed the, issuance of an order to show cause upon which issues were drawn in accordance with the usual practice. Where a petitioner has exhausted his state remedies and his petition for certiorari in the United States Supreme Court has been denied,' a federal district court has jurisdiction to entertain an application for federal habeas corpus. Darr v. Burford, 1950, 339 U.S. 200, 70 S.Ct. 587, 94 L.Ed. 761; Title 28 U.S.C.A. § 2254. In such a case, appellate jurisdiction is conferred upon this court by Title 28 U.S.C.A. § 2253. The denial of' certiorari by the United States Supreme Court carries no weight in the subsequent federal habeas corpus proceeding. Darr v. Burford, supra, 339 U.S. at page 216, 70 S.Ct. at page 596. Sampsell claims and has the burden of showing that the state so departed from constitutional requirements as to justify a federal court’s intervention. Darr v. Burford, supra, 339 U.S. at page 218, 70 S.Ct. at page 597. The Great Writ does not extend to the prisoner in this type of proceeding unless he is in custody in violation of the constitution or laws or treaties of the United States. Title 28 U.S.C.A. § 2241(c)(3). The intervention of the United States District Court is justified by petitioner because, as he claims, the jury was not instructed to the' effect that unanimous agreement of the jury members upon the penalty was necessary, should a verdict of guilty be returned. He relies upon Andres v. United States," }, { "docid": "13723279", "title": "", "text": "New York Appellate Division. No appeal was taken from that affirmance though later a motion was made in the Appellate Division for reargument. The motion was denied; leave to appeal from the denial of reargument to the New York Court of Appeals was denied for lack of jurisdiction and a petition for a writ of certiorari was also denied. 352 U.S. 896, 77 S.Ct. 134, 1 L.Ed.2d 88. We held that the motion for reargument did not raise the issues sought to be adjudicated in the habeas corpus proceedings in the federal courts and thus the denial of certiorari could not be considered to exhaust an available remedy. This is not to say that before habeas corpus lies in the federal courts a State court must rule on the merits of the prisoner’s contentions. It is enough if the prisoner, pursuant to a proper procedure, place before the State courts an opportunity to adjudicate his federal claim upon the merits. United States ex rel. Sproch v. Ragen, 7 Cir., 246 F.2d 264, 266-267. Cf. Durley v. Mayo, 351 U.S. 277, 76 S.Ct. 806, 100 L.Ed. 1178, and Meeks v. Lainson, 8 Cir., 236 F.2d 395, certiorari denied 352 U.S. 931, 77 S.Ct. 233, 1 L.Ed.2d 166, where the State court decisions “might” have rested on adequate State grounds and there was no showing the federal claims had been considered. Conversely, if the prisoner presents his claim on the merits by an improper procedure or in conjunction with State claims, exhaustion will be deemed to have occurred if a State court in fact passes on the merits of the federal claim since the purpose of the exhaustion requirement — giving the State an opportunity to correct any federal violations before federal intervention — has been attained. Darr v. Burford, 339 U.S. 200, 203 et seq., 70 S.Ct. 587, 94 L.Ed. 761. Generally, once a State court has been properly presented with the merits the prisoner must follow the proper State appellate procedure and then petition the Supreme Court for a writ of certiorari. Darr v. Burford, supra. In certain “special circumstances”" }, { "docid": "22271029", "title": "", "text": "express language the holding of Ex parte Hawk, 321 U.S. 114, 118, 64 S.Ct. 448, 450, 88 L.Ed. 572. But that ruling is as explicit as any statute: “But where resort to state court remedies has failed to afford a full and fair adjudication of the federal contentions * * *, or because in the particular case the remedy afforded by state law proves in practice unavailable or seriously inadequate * * * a federal court should entertain [the] petition for habeas corpus, else [the accused] would be remediless”, citing Moore v. Dempsey, 261 U.S. 86, 43 S.Ct. 265, 67 L.Ed. 543, and Ex parte Davis, 318 U.S. 412, 63 S.Ct. 679, 87 L.Ed. 868. Darr v. Burford, 339 U.S. 200, 70 S.Ct. 587, 94 L.Ed. 761, holds that an application to the Supreme Court of the United States for certiorari is an essential part of the State remedy. But in the Darr case the Supreme Court did not repudiate the holding of United States v. Carver, 260 U.S. 482, 490, 43 S.Ct. 181, 182, 67 L.Ed. 361, that the denial of the writ of certiorari “ * * * imports no expression of opinion upon the merits of the case”. In its decision denying Almeida habeas corpus, the Supreme Court of Pennsylvania, per curiam, stated only that “ * * * the matters complained of by the Relator do not warrant the granting of a Writ of Habeas Corpus. Writ refused.” The denial was not qualified by the words “without prejudice”. We cannot determine with absolute certainty the reason for the refusal of the writ. Our difficulty in determining why the Supreme Court of Pennsylvania refused the writ is enhanced because the Court took no testimony and made no findings. Under such circumstances the allegations of the petition that vital evidence “was wilfully concealed” must be taken to be true since no hearing was had. See Williams v. Kaiser, 323 U.S. 471, 474, 65 S.Ct. 363, 89 L.Ed. 398. We cannot assume that the Supreme Court of Pennsylvania was ignorant of the law as laid down by the Supreme" }, { "docid": "22476294", "title": "", "text": "cognizant of the litigation, have had an opportunity to pass upon the matter.’ ” Rose v. Lundy, 455 U.S. 509, 518, 102 S.Ct. 1198, 1203, 71 L.Ed.2d 379 (1982) (quoting Darr v. Burford, 339 U.S. 200, 204, 70 S.Ct. 587, 590, 94 L.Ed. 761 (1950)). Indeed, we opined in Toulson v. Beyer, 987 F.2d 984, 986 (3d Cir.1993), that requiring exhaustion of state remedies “addresses federalism and comity concerns by ‘afford[ing] the state courts a meaningful opportunity to consider allegations of legal error without interference from the federal judiciary.’ \" (Citations omitted.) . Lambert maintains before us that since she has either raised or waived all of her claims in state court, she did exhaust her state remedies. Lambert is equating exhaustion with waiver, however, in that she argues that since the unex-hausted claims have been waived under Pennsylvania law, after the 1995 amendments to the PCRA, she is without a mechanism for post-conviction relief. This argument cannot form the basis of a \"special circumstance” excusing her failure to exhaust since, as we find infra, that review of her unexhausted claims is not clearly foreclosed under Pennsylvania law. . The Commonwealth submits that the so-called \"special circumstances” exception of Frisbie v. Collins, supra, upon which Lambert relies to excuse nonexhaustion, \"is so ill-defined that it must be considered sui generis ” and, in any event, did not survive the AEDPA amendments to the federal habeas corpus statute. The Commonwealth describes Frisbie as \"a case notably lack ing in guidance on the parameters of the [special circumstances] exception.\" We agree with the Commonwealth’s analysis of Frisbie. . The petitioner in Frisbie v. Collins alleged that the complaint in the state court action was defective and, consequently, a faulty warrant was issued for his arrest. He further contends that he was subsequently kidnaped by Michigan police in Chicago and brought back to Michigan for trial in violation of federal constitutional and statutory law. 342 U.S. at 521-22 n. 5, 72 S.Ct. at 511 n. 5. . In his petition, Moore alleged that the constitutional right to a speedy trial was so unique" }, { "docid": "23469398", "title": "", "text": "search of Peak, then it is likely that the seizure of the dynamite and related paraphernalia was proper, since it appears from the record that the incriminating evidence probably was in plain view inside the house. A. As a preliminary matter, the State contends that the federal district court should not have considered the question whether the police could legally enter petitioner’s home in search of Peak. Instead, the State argues, Judge Urbom should have dismissed the petition on the ground that the petitioner had not exhausted his state remedies for relief on this alternative ground, since no Nebraska state court has ever ruled on the specific question of whether the police could enter petitioner’s house in search of Peak. The State thus submits that the state courts should be allowed to rule on this question before a federal district court construes it. Judge Urbom rejected this suggestion. We find that he was correct in doing so. It is, of course, settled law that federal habeas corpus will not be granted to a state prisoner unless he has exhausted all available state remedies. 28 U.S.C. §§ 2254(b) & (c). This doctrine of exhaustion of state remedies is a rule designed to harmonize the relationship between the federal judiciary and the state court systems, for “it would be unseemly in our dual system of government for a federal district court to upset a state court conviction without an opportunity to the state courts to correct a constitutional violation.” Darr v. Burford, 339 U.S. 200, 204, 70 S.Ct. 587, 590, 94 L.Ed. 761 (1950). But there are limits to the scope of the exhaustion doctrine, and the exhaustion standard is not an inflexible requirement: it is a rule of comity and not a rule limiting the power of the fed eral courts to give habeas relief. Smith v. Wolff, 506 F.2d 556 (8th Cir. 1974). Thus the Supreme Court has held that the exhaustion provisions of § 2254 refer only to those remedies still open to the habeas petitioner at the time he files his petition in the federal district court. Humphrey" }, { "docid": "21339718", "title": "", "text": "for appellants were afforded an opportunity to listen to the recordings outside of the court room, and to follow them on the transcribed statements. When the state thereafter asked Officer Tidyman to read the Hernandez statement, counsel for appellants objected on several grounds, one being that the Hernandez transcript was not a true and correct record of the taped conversation. This objection was not framed in such a way that it could be held to apply also to the Brenhaug transcript. At a later point in the trial when the state asked Tidyman to read the Brenhaug statement, objections of counsel were to the effect that the statement was not the best evidence, that it was not proper impeachment, that it was not an accusatory statement as to Chavez, and that the witness had no independent recollection of the conversation. There was no objection on the ground that the transcript was not an accurate reflection of the tape recording, nor has any excuse been offered why this objection was not made. We accordingly hold that appellants did not exhaust their state remedies with regard to the asserted inaccuracy of the Brenhaug statement and and the district court was therefore without jurisdiction to consider this ground for granting the application. The state also points out, on the question of exhaustion of state remedies, that Chavez did not raise the question of the accuracy of the Hernandez transcription in his petition to the United States Supreme Court for certiorari, following the decision of the California Supreme Court affirming his conviction and sentence. The rule thus sought to be invoked, as established in Darr v. Burford, 339 U.S. 200, 70 S.Ct. 587, 94 L.Ed. 761, and recently applied by this court in Duncan v. Carter, 9 Cir., 299 F.2d 179, is that, absent special circumstances, failure to petition for a writ of certiorari with respect to a particular contention precludes district court consideration thereof in a subsequent habeas corpus proceeding. In our opinion, special circumstances exist here which render inapplicable the requirement, as to Chavez, that this particular point must have been raised" }, { "docid": "4148588", "title": "", "text": "his petition for certiorari. The last word on the subject by the Supreme Court is Darr v. Burford, 1950, 339 U.S. 200, 70 S.Ct. 587, 94 L.Ed. 761 The proposition decided in that case does not immediately concern us here. If application for certiorari must in every case be made to review the final state court action before resort may be had to habeas corpus in a federal court, that condition has been fulfilled. Our narrower question is: What effect in the lower federal courts is to be given to the denial of certiorari by the Supreme Court? The Court, through Mr. Justice Reed, says, 339 U.S. at 217, 70 S.Ct. at page 597, 94 L.Ed. 761: “It is this Court’s conviction that orderly federal procedure under our dual system of government demands that the state’s highest courts should ordinarily be subject to reversal only by this Court and that a state’s system for the administration of justice should be condemned as constitutionally inadequate only by this Court.” The doubt-creating word is “ordinarily.” When should a district court and a court of appeals again examine merits? Our inclination would naturally be to say “never.” It is highly uncomfortable for those of us in courts not of last resort to sit in what is, in effect, review of the highest court of a state. The responsibility is one from which we should be glad to be relieved. But Darr v. Burford does not say that denial of certiorari relieves us. The dissenting opinion in that case points out that no directions are given the lower federal courts on the point. It would be unseemly for us to make argument either way on the questions upon which our superiors differ. We think that what we clearly must do, until we are told to the contrary, is to follow the well established rule that a denial of certiorari does not prove anything except that certiorari was denied. When the applicant for habeas corpus has petitioned for certiorari he has fulfilled a procedural requirement. If he gets certio-rari his constitutional questions will be adjudicated" }, { "docid": "5546844", "title": "", "text": "prisoner to the Supreme Court for a writ of certiorari was a necessary step in exhaustion of his state remedies. 339 U.S. at page 208, 70 S.Ct. at page 592, 94 L.Ed. 761. However, the Court further indicated that the rule was not inflexible and recognized a possible exception, i. e., where the petitioner pleads or proves the existence of exceptional circumstances or circumstances of peculiar urgency excusing his failure to apply for certiorari. In Thomas v. Arizona, 356 U.S. 390, 392, 78 S.Ct. 885, 886-887, 2 L.Ed.2d 863 (1958), footnote 1, the Court said: “ * * * The normal rule that certiorari must be applied for here after a state conviction before habeas is sought in the District Court, Darr v. Burford, 339 U.S. 200 [70 S.Ct. 587, 94 L.Ed. 761] (1950), is not inflexible, however, and in special circumstances need not be complied with. Darr v. Burford, supra, at 210 [70 S.Ct. at 593, 94 L.Ed. 761], ‘Whether such circumstances exist calls for a factual appraisal by the [District Court] in each special situation. Determination of this issue, like others, is largely left to the trial courts subject to appropriate review by the courts of appeals.’ Frisbie v. Collins, 342 U.S. 519, 521 [72 S.Ct. 509, 96 L.Ed. 541] (1952). Petitioner’s failure to timely apply for certiorari was noted by the District Court in this case, but expressly was stated not to be the basis for its denial of habeas. Since that court and the Court of Appeals considered petitioner’s application on the merits, we are not inclined at this late date to consider the procedural defect a fatal error.” In Mattox v. Sacks, Warden, 369 U.S. 656, 82 S.Ct. 992, 8 L.Ed.2d 178 (1962), a prisoner of the State of Ohio had been convicted of a felony. Immediately following his conviction he sought a writ of habeas corpus which was denied on the ground that appeal was the proper remedy. He then attempted to appeal but this was denied as out of time and the Supreme Court of Ohio affirmed this denial. He unsuccessfully sought habeas" } ]

[ { "docid": "17638541", "title": "", "text": "payment to her of the other $100 conferred a benefit equal to the cost by cancel-ling the debt of that amount. Snyder v. Partridge, 138 Ill. 173, 29 N.E. 851, 854 (1891); Reagan v. Baird, 140 Ill.App.3d 58, 94 Ill.Dec. 151, 157, 487 N.E.2d 1028, 1034 (1985). Given the legal obligation of child support in divorce cases, it is unlikely that the ex-wife had no valid claims at all. She was denied an opportunity to prove the amount of those claims. It is plain that the aggregate transfers made to her exceeded any plausible legal obligation that Douglas or the corporations could have had to her — and hence that the transfers were fraudulent— but we do not know by exactly how much. This discussion shows that the district judge acted prematurely in granting summary judgment for the receiver against the ex-wife on a theory of “fraud in law” to the full extent of the money received by her. But the receiver, in his second objection to her claim, argues that we can affirm the district court on this point because there was “fraud in fact” as well as in law: Douglas caused the corporations to pay the ex-wife more than he owed her, in a deliberate effort, in which she was eomplicit, to defraud his and the corporations’ other creditors. The evidence, though circumstantial, is strong, cf. Wilkey v. Wax, 82 Ill.App.2d 67, 225 N.E.2d 813, 816-17 (1967), but we do not think it is so strong that we can say as a matter of law that there was fraud in fact. Should the district court on remand find actual fraud, this would mean that the ex-wife is not entitled to keep any part of the money she received from the corporations — provided, we emphasize, that she knew or should have known of Douglas’s fraudulent intent. Crawford County State Bank v. Marine American National Bank, 199 Ill.App.3d 236, 145 Ill.Dec. 224, 238-39, 556 N.E.2d 842, 856-57 (1990); Reagan v. Baird, supra, 487 N.E.2d at 1034; Second National Bank v. Jones, 309 Ill.App. 358, 33 N.E.2d 732, 736 (1941)" } ]

[ { "docid": "22026269", "title": "", "text": "the hands of Basile, Kaufman, and SIG Partners. If ANB and other outside creditors are the real parties in interest, then again River Bank has no legitimate objection to the trustee’s recognition of SFSA’s claim. 3. If a distribution to SFSA is likely to be redistributed to SFSA’s equity investors, then the court must address two further questions: first, whether the trustee’s recognition of SFSA’s belated claim was proper (recall that this is the question Judge Sonderby originally planned to address once River Bank had become a real rather than a contingent creditor), and, second, if the trustee’s action was proper, whether under Illinois law River Bank takes ahead of the equity investors. At this point the possibility of fraud on Basile and Kaufman personally may reemerge. They can’t give away creditors’ money, but they can give their own equity positions to Quest, another equity owner (and therefore, indirectly, to River Bank); but if Waxman’s arm-twisting was real fraud, as opposed to commercial pressure, then the transfer cannot be understood even as a gift, and River Bank cannot recoup any portion of it. Appeal No. 95-2099 is dismissed for want of jurisdiction. On appeal No. 95-2954, the judgment is affirmed to the extent it holds River Bank to be the recipient of a fraudulent conveyance under § 548(a)(2), and the case is remanded for further proceedings, consistent with this opinion, to resolve the competing claims of River Bank and SFSA to any surplus remaining after satisfaction of FBN’s bona fide outside debts, and the expenses of administering the estate." }, { "docid": "22026242", "title": "", "text": "their (stated) equity interests in SFSA by $100,000 each. Waxman used the prospect of forgiving Basile’s note to Quest as a carrot to get him looking for outside capital. Two years later, Waxman used the $100,000 note again — as a club. Basile was reluctant to approve the payment of $1.5 million from the Sizzler settlement to Quest. Waxman told Basile that, unless he acquiesced, Quest would collect the note despite its earlier forgiveness. Basile knuckled under and signed. Waxman, not one to leave money on the table, then tried to collect the note anyway! Quest filed a diversity action against Basile, who defended on the ground that the debt had been forgiven in 1988. A swearing contest ensued, and the jury believed Basile. See Quest Equities Corp. v. Basile, 1994 WL 110393,1994 U.S. Dist. LEXIS 3877 (N.D.Ill.1994). Meanwhile, SFSA (together with Ba-sile and Landberg) turned on its former investors and sued Waxman, Quest, River Bank, and several related entities under the Racketeer Influenced and Corrupt Organizations Act (RICO). SFSA described the failure to turn the equity over to Landberg, the extraction of the $1.4 million from the Sizzler settlement, the attempt to collect Basile’s note, and some other acts as ingredients in a “pattern of racketeering activity.” That suit came to a close when we held that River Bank’s acts were at worst a commercial fraud, which did not satisfy the “continuity” component of RICO’s pattern requirement. SIG Food Services Associates v. Mann, No. 93-3267, 1994 WL 260754 (7th Cir. June 14, 1994) (unpublished order). A solitary commercial fraud does not lead to liability under RICO, but it may have consequences under other federal statutes, including the Bankruptcy Code. James E. Carmel, the trustee in FBN’s liquidation, commenced an adversary proceeding to recover the $1.4 million as a fraudulent conveyance under 11 U.S.C. § 548(a). Under this statute, the trustee may avoid any transfer of an interest of the debtor in property, or any obligation incurred by the debtor, that was made or incurred on or within one year before the date of the filing of the petition, if" }, { "docid": "22026262", "title": "", "text": "residue — for SFSA is just Basile, Kaufman, and SIG Partners, who already have relinquished their claims. Many cases interpreting state fraudulent conveyance law say that, once outside creditors have been satisfied, the transaction remains valid between the transferor and transferee. E.g., Windle v. Flinn, 196 Or. 654, 672, 251 P.2d 136, 144 (1952); Service Mortgage Corp. v. Welson, 293 Mass. 410, 413, 200 N.E. 278, 280 (1936). Some of these are from Illinois, whose law governs to the extent state law plays a role in defining the parties’ rights. E.g., Feltinton v. Rudnik, 401 Ill. 362, 363, 82 N.E.2d 436, 437 (1948). For example, if Basile, having $100,-000 in net assets, had given $200,000 to his alma mater, that transfer would have been avoidable under § 548(a)(2); but if after paying Basile’s creditors the trustee in bankruptcy had $100,000 left over, the money should be restored to the college rather than be given back to Basile. This possibility, we gather, is what Judge Sonderby originally contemplated in calling River Bank a contingent creditor. IV According to Trustee Carmel, River Bank cannot recover any part of the $1.4 million from the estate even if the fraud is only “constructive”, so we can affirm without ado. He gives two reasons. First, he contends, the $450,000 in trade debt is only the beginning. Once FBN’s estate has another $1.4 million in the kitty, he plans to invite other creditors to file additional claims, .and these could be more than enough to consume the estate. Second, he invokes Judge Con-Ion’s conclusion that under the Bankruptcy Code a fraudulent conveyance is “void” and state law, irrelevant. Neither of these lines persuades; we start with the first. Trustee Carmel believes that some creditors may have assumed that FBN lacked assets, and that this assumption caused them to think that formal claims would not be worthwhile. Knowledge that the estate has additional assets would change the calculus, the trustee contends, justifying a new round of notice and claims. Yet the final date for filing claims in this bankruptcy is long passed. Creditors had full notice and" }, { "docid": "22026259", "title": "", "text": "that the guarantors (especially inside guarantors) will use their influence to ensure that the debtors pay up. Cf. Levit v. Ingersoll Rand Financial Corp., 874 F.2d 1186 (7th Cir.1989). Everyone knows that guarantees have this effect; and an anticipated, even bargained-for, incentive cannot be relabeled fraud when the guarantor acts in his self-interest to induce the debtor to repay the loan. See Kham & Nate’s Shoes No. 2 v. First Bank of Whiting, 908 F.2d 1351, 1356-57 (7th Cir.1990); Mirax Chemical Products Corp. v. First Interstate Commercial Corp., 950 F.2d 566, 570 (8th Cir.1991). So too with loans. Ba-sile’s $100,000 note to Quest was to be paid in the end by SFSA. Basile therefore had every reason to help FBN and SFSA pay off their outside debts so that there would be profits left to distribute to him, and he could pay down the note. The note was a small part of a financial structure in which Basile’s earnings were linked to the venture’s sue- cess; a waste of corporate funds could cost Basile more in his role as equity holder (and creditor of SFSA) than he could gain in his role as Quest’s debtor. Most likely the bankruptcy and district judges were well aware of this, but thought the actual financial pressure impermissible nonetheless: Basile’s note had been forgiven, so Waxman’s statements amounted to a threat to file frivolous (but costly) litigation, which no one has a right to do (see Bill Johnson’s Restaurants, Inc. v. NLRB, 461 U.S. 731, 741-44, 103 S.Ct. 2161, 2168-71, 76 L.Ed.2d 277 (1983); Premier Electrical Construction Co. v. National Electrical Contractors As-s’n, Inc., 814 F.2d 358, 371-72 (7th Cir.1987)); and Kaufman’s guarantees did not cover either FBN’s or SFSA’s debts to River Bank, so Waxman’s pressure on him induced SIG Partners’ agent to abandon the interests of his principal. Because neither judge drew this line explicitly, however, and because both judges’ opinions can be read to condemn, as fraudulent, any effort to collect a debt by reminding the debtor’s managers that payment is in their personal interest, we are reluctant to affirm the" }, { "docid": "22026241", "title": "", "text": "guarantee Quest would turn over to Land-berg Quest’s equity in FBN and SFSA Wax-man promised Basile that if he landed the outside $1 million, Quest would forgive a $100,000 note Basile had signed. So by 1990 Quest may not have been an equity investor. We say “may not” because Waxman denies that he made these promises, and after River Bank pocketed the $1 million Quest refused to sign its equity over to Landberg. The $100,000 note was part of the initial financing for FBN and SFSA. SIG Partners wanted to hire an experienced manager for the restaurant business and came to terms with Basile, then a partner at Arthur Young & Company. SIG Partners also wanted the venture’s managers to be investors, the better to whet their appetite for profits. Basile lacked liquid funds. In exchange for a 25 percent equity interest in SFSA, Basile gave notes for $100,000 apiece to Quest and SIG Partners. SFSA gave Basile a note for $200,000 (on which SFSA has never paid a dime); Quest and SIG Partners reduced their (stated) equity interests in SFSA by $100,000 each. Waxman used the prospect of forgiving Basile’s note to Quest as a carrot to get him looking for outside capital. Two years later, Waxman used the $100,000 note again — as a club. Basile was reluctant to approve the payment of $1.5 million from the Sizzler settlement to Quest. Waxman told Basile that, unless he acquiesced, Quest would collect the note despite its earlier forgiveness. Basile knuckled under and signed. Waxman, not one to leave money on the table, then tried to collect the note anyway! Quest filed a diversity action against Basile, who defended on the ground that the debt had been forgiven in 1988. A swearing contest ensued, and the jury believed Basile. See Quest Equities Corp. v. Basile, 1994 WL 110393,1994 U.S. Dist. LEXIS 3877 (N.D.Ill.1994). Meanwhile, SFSA (together with Ba-sile and Landberg) turned on its former investors and sued Waxman, Quest, River Bank, and several related entities under the Racketeer Influenced and Corrupt Organizations Act (RICO). SFSA described the failure to turn" }, { "docid": "22026258", "title": "", "text": "and that the machinations used to induce Basile and Kaufman to sign on the dotted line show this, but the bankruptcy judge did not make that finding. Suppose that, at the time of the Sizzler settlement, FBN owed $500,000 to River Bank and had no other creditors. Holding a gun to Basile’s head (or blackmailing him) to induce Basile to sign over $1.4 million might be a crime, and a fraud on FBN’s stockholders (who otherwise would receive the $900,000 surplus), but it would not be a fraud on FBN’s creditors— and it is this sense in which § 548(a)(1) speaks of fraud. Our second difficulty with the finding is that both the bankruptcy judge and the district judge equated financial pressure with “fraud.” Suppose Kaufman had guaranteed SFSA’s debts to River Bank. During the settlement negotiations, Waxman doubtless would have reminded Kaufman that every dollar paid to River Bank is a dollar’s less exposure on the guarantee. Would that reminder spoil the transfer? Hardly; guarantees are designed to have precisely this effect. Lenders hope that the guarantors (especially inside guarantors) will use their influence to ensure that the debtors pay up. Cf. Levit v. Ingersoll Rand Financial Corp., 874 F.2d 1186 (7th Cir.1989). Everyone knows that guarantees have this effect; and an anticipated, even bargained-for, incentive cannot be relabeled fraud when the guarantor acts in his self-interest to induce the debtor to repay the loan. See Kham & Nate’s Shoes No. 2 v. First Bank of Whiting, 908 F.2d 1351, 1356-57 (7th Cir.1990); Mirax Chemical Products Corp. v. First Interstate Commercial Corp., 950 F.2d 566, 570 (8th Cir.1991). So too with loans. Ba-sile’s $100,000 note to Quest was to be paid in the end by SFSA. Basile therefore had every reason to help FBN and SFSA pay off their outside debts so that there would be profits left to distribute to him, and he could pay down the note. The note was a small part of a financial structure in which Basile’s earnings were linked to the venture’s sue- cess; a waste of corporate funds could cost Basile more" }, { "docid": "22032553", "title": "", "text": "805 (9th Cir.1994); 4 Collier on Bankruptcy ¶ 548.02[5], at 548-49 n. 62 (“A finding of a trial judge ... who has heard the oral testimony that a transfer has or has not been effected with actual fraudulent intent, is undoubtedly entitled to great weight on appeal in view of the particular importance in section 548(a)(1) cases of the witnesses examined on the intent issue.”). The court below found that Waxman, acting as president of River Bank and on behalf of Quest Equities (an insider of the debtor), controlled and dominated B asile and Kaufman, and used this control to hinder, delay and defraud FBN’s creditors. FBN was insolvent and in dire financial circumstances during the settlement discussions, and both FBN and River Bank knew that it would be unable to satisfy all of its creditors. Although FBN traded its claims for the benefit of the entire $4,175,000 paid out by Sizzler, FBN was forced to give $1.4 million of that benefit to River Bank. Waxman threatened Basile with the resurrection of a $100,000 promissory note that Quest Equities had previously forgiven if he did not approve this apportionment of the settlement proceeds. In addition, Kaufman (another insider of FBN) was under the control of Waxman since he had personally guaranteed some $9 million in loans from River Bank. Waxman’s influence was also evidenced by his dictation of the written settlement agreement, and his attempts to extract more money out of FBN’s principals in the so-called “side agreement” with SIG Partners. In exchange for agreeing to the $1.4 million transfer, FBN received little, if anything, of value. Indeed, rather than an arms-length transaction, River Bank extracted these funds from FBN’s insiders by threatening their personal financial situation. By exerting its influence over Basile and Kaufman individually, as well as FBN, appellant insured itself of a $1.4 million payment on the River Bank Loan, despite the fact that other creditors either had priority or should have shared pro rata in the assets of the estate. Given all this evidence, and the great deal of deference given to the bankruptcy court’s decision," }, { "docid": "22026256", "title": "", "text": "— nothing. Subsection 548(a)(2) often is called “constructive fraud” because it omits any element of intent. Subsection 548(a)(1), which condemns transfers made “with actual intent to hinder, delay, or defraud any entity to which the debtor was ... indebted”, goes by the label “actual fraud” because of its intent ingredient. The bankruptcy judge found that by threatening to collect Basile’s $100,000 note, River Bank committed actual fraud and incurred liability under § 548(a)(1) as well. Judge Sonderby added that River Bank committed a second fraud by threatening Kaufman that, unless he agreed to the payment, River Bank would enforce Kaufman’s guarantee of some loans unrelated to FBN and SFSA. The trustee’s right to recover the transfer does not depend on § 548(a)(1), given the findings under § 548(a)(2). But because the difference between actual and constructive fraud may matter to the disposition of the recovered proceeds, we think it important to examine liability under both subsections. (Sections IV and V below explain how the legal effects of actual and constructive fraud may differ in this case.) Two portions of the bankruptcy judge’s analysis under § 548(a)(1) give us pause. It is easy enough to see how River Bank’s threats could be called extortion or even blackmail. As a rule, one can’t threaten to take even a lawful step, when the purpose is to turn an agent against his principal. Suppose the reason Basile signed over $1.4 million of FBN’s money was to save $100,000 of his own. If Basile owed nothing, and River Bank knew it, the threat to try to collect would be nothing but subornation of an agent. Our first difficulty with this, however, is that § 548(a)(1) does not deal with frauds on (or extortion against) corporate officers. It deals with frauds against the creditors of the transferors. The question posed by the statute is whether someone had the actual intent to hinder or defraud FBN’s trade creditors, or other entities to which FBN was indebted. It may be that Waxman (for River Bank) and Basile (with his arm twisted behind his back) had such an intent," }, { "docid": "22026267", "title": "", "text": "735 F.2d 740, 742 (2d Cir.1984); Whiteford Plastics Co. v. Chase National Bank, 179 F.2d 582 (2d Cir.1950). Cf. Granfinanciera, S.A. v. Nordberg, 492 U.S. 33, 60, 109 S.Ct. 2782, 2800, 106 L.Ed.2d 26 (1989) (remarking on the relation between the common law and the Code’s treatment of fraudulent conveyances). We think these cases correctly decided. They are wholly consistent with In re Acequia, Inc., 34 F.3d 800, 811 (9th Cir.1994), a case under § 544(b) on which the trustee heavily relies. Acequia holds that the trustee’s recovery is not limited to the amount of debt senior to the defendant in the preference-recovery action. See Moore v. Bay, 284 U.S. 4, 52 S.Ct. 3, 76 L.Ed. 133 (1931). It has nothing to do with identifying who gets how much when the estate distributes its assets. V River Bank believes that state law puts it ahead of SFSA in the queue for payment, but it would be premature to pursue this argument to a conclusion. Although River Bank treats SFSA as if it were just Basile, Kaufman, and SIG Partners, this record does not show what will become of any distribution to SFSA from the FBN estate. For all we know, SFSA will turn the money over to ANB as a payment on the loan, and ANB unquestionably has a claim superior to River Bank’s. This uncertainty, coupled with the ambiguities we have identified in the findings related to “actual fraud,” mean that further proceedings lie ahead. When the case returns to the bankruptcy court, the judge should address a series of questions: 1. Did the transfer occur with actual intent to defraud FBN’s creditors (as opposed to an intent to defraud Basile and Kaufman personally, or to defraud FBN’s equity investors)? If the answer is yes, then River Bank has no claim to any amount left over after satisfying FBN’s debts, and this adversary proceeding is at an end. 2. If the transfer is avoided only under § 548(a)(2), then the identity of the distributees via SFSA matters. The court should determine whether payments to SFSA will end up in" }, { "docid": "22026245", "title": "", "text": "received value indirectly (because the payment would have reduced FBN’s obligations to SFSA). But once River Bank reversed the credit and signed SFSA’s unreduced notes over to ANB, neither FBN nor SFSA received any value from the transfer. Judge Sonderby of the bankruptcy court held a three-week trial and concluded that the $1.4 million was a fraudulent conveyance under both § 548(a)(1) (actual fraud) and § 548(a)(2) (constructive fraud). 175 B.R. 671 (Bankr.N.D.Ill.1994). The appeal went to Chief Judge Aspen, who affirmed after concluding that none of the dispositive findings of fact is clearly erroneous. 185 B.R. 265 (N.D.Ill.1995). II Shortly before the trial, Judge Son-derby dashed River Bank’s principal hope for damage control. By the filing deadline in December 1991, only $450,000 in claims had been made against FBN. As River Bank saw things, this meant that its exposure in the fraudulent conveyance action was only $450,-000: the estate could recover no more than was necessary to pay its debts. (Whether this is a correct understanding is a subject to which we return.) In April 1993 Carmel and SFSA filed with the bankruptcy court a stipulation that increased the estate’s obligations by $2.4 million. River Bank’s exposure suddenly leapt to $1.4 million, plus interest. It cried foul, because the agreement came after the bar date and because SFSA’s other investors — the potential beneficiaries of the claim against FBN — were complicit in any fraudulent conveyance. Carmel asserts that SFSA is a secured creditor of FBN, exempt from the filing deadline, see 11 U.S.C. §§ 501, 506, but Judge Sonderby declined to address River Bank’s objections, ruling that it was not (yet) a “party in interest” as 11 U.S.C. § 502(a) uses that term: A claim or interest, proof of which is filed under section 501 of this title, is deemed allowed, unless a party in interest, including a creditor of a general partner in a partnership that is a debtor in a case under chapter 7 of this title, objects. “Party in interest” means “anyone who has a legally protected interest that could be affected by a bankruptcy" }, { "docid": "22026238", "title": "", "text": "that the restaurants were unprofitable, FBN filed suit against Sizzler Restaurants International, the franchisor. Sizzler counterclaimed, and it also initiated an arbitration against Midwest Restaurant Concepts (MRC), an enterprise affiliated with FBN and SFSA, which had promised (but failed) to indemnify Sizzler against losses arising out of transactions with FBN. In September 1990 everyone sat down to parley, and a bargain was reached. Sizzler would dismiss the MRC arbitration (the firm lacked assets to pay any award), and all counterclaims filed in that arbitration also would be dismissed. Sizzler agreed to pay $4,175,000 to resolve the litigation. In exchange, it wanted releases from FBN, SFSA, MRC, and all of those ventures’ principals — SIG Partners, Basile, Quest Equities, and River Bank (which controlled Quest). The largest share went to SFSA, which transferred two parcels of real estate to Sizzler. Quest and River Bank refused to sign the agreement unless they received $2.125 million. Rather than see the deal collapse, Basile (who spoke for FBN) and Gerald Kaufman (who spoke for SIG Partners) agreed. Sizzler disbursed $1.8 million to SFSA $1-5 million to Quest, $625,000 to Riv er Bank, and $250,000 to FBN. Sizzler got the restaurants, the property, and an end to a losing association with FBN. For everyone else, the dance was just beginning. The allocation of the settlement proceeds to its investors left FBN with neither a business nor significant assets, and it collapsed, stiffing its trade creditors. Bankruptcy proceedings followed. American National Bank, which had not been at the table, learned that the $1.5 million paid to Quest had been credited against River Bank’s loan to SFSA (Actually only $1.4 million had been credited; the rest was apportioned to legal expenses, a step no one questions.) This was more than a little peculiar, on three grounds: first, the money had been paid to Quest (an equity investor in FBN), not to River Bank; second, the litigation against Sizzler had been filed by FBN, not SFSA, so it was unclear how proceeds of the settlement ended up being used to reduce SFSA’s debt to River Bank; third, there" }, { "docid": "18906979", "title": "", "text": "MEMORANDUM OPINION SUSAN PIERSON SONDERBY, Bankruptcy Judge. The delightful quality of fraud lies in its infinite variety ... INTRODUCTION This matter revolves around the events leading up to and culminating in a two day mediation conference at which Sizzler Restaurants International, Inc. (“Sizzler”) paid $4,175,000 to settle litigation between itself, FBN Food Services, Inc. (“FBN”) and Midwest Restaurant Concepts, Inc. (“MRC”). Pursuant to the settlement agreement, Sizzler paid $1.4 million to Quest Equities, Inc. (“Quest Equities”), a shareholder of FBN. Quest Equities’ parent company, River Bank America (“River Bank”), applied that amount to reduce the debt on a $7.5 million loan that it made to SIG Food Services Associates, L.P. Shortly thereafter, an involuntary Chapter 7 bankruptcy petition was filed against FBN and an order for relief entered. Subsequently, the Trustee filed this fraudulent conveyance action which opened a pan-dora’s box. The Trustee contends that the transfer of money to River Bank was a fraudulent transfer which should be avoided pursuant to Sections 548 and 550 of the Bankruptcy Code. After considering the testimony, exhibits admitted into evidence, briefs submitted by the parties, and arguments of counsel, the Court agrees. Accordingly, the $1.4 million fraudulently transferred to River Bank is hereby avoided. BACKGROUND FBN The relevant facts are as follows. In 1986, FBN was formed to act as the operating company for certain Sizzler restaurants. [UF ¶ 9(b) ] FBN was authorized and licensed to operate those restaurants pursuant to certain license agreements. [UF ¶ 9(b) ] The shareholders of FBN were Anthony Ba-sile (“Basile”) (25%), Quest Equities (37.5%), and SIG Partners (37.5%). [UF ¶90>)] Quest Equities was in the business of making loans and equity investments, and was a wholly owned subsidiary of River Bank. [UF ¶ 5] Both Basile, and Gerald Kaufman, one of the partners of SIG Partners, signed personal guarantees of FBN’s various obligations to Sizzler. [UF ¶ 30, 31] Basile was the president of FBN and was responsible for the operation of the restaurant facilities. [Tr. 91] FBN leased the Sizzler restaurants and the furniture, fixtures, and equipment (the so-called “hard assets”) for the restaurants" }, { "docid": "22026257", "title": "", "text": "case.) Two portions of the bankruptcy judge’s analysis under § 548(a)(1) give us pause. It is easy enough to see how River Bank’s threats could be called extortion or even blackmail. As a rule, one can’t threaten to take even a lawful step, when the purpose is to turn an agent against his principal. Suppose the reason Basile signed over $1.4 million of FBN’s money was to save $100,000 of his own. If Basile owed nothing, and River Bank knew it, the threat to try to collect would be nothing but subornation of an agent. Our first difficulty with this, however, is that § 548(a)(1) does not deal with frauds on (or extortion against) corporate officers. It deals with frauds against the creditors of the transferors. The question posed by the statute is whether someone had the actual intent to hinder or defraud FBN’s trade creditors, or other entities to which FBN was indebted. It may be that Waxman (for River Bank) and Basile (with his arm twisted behind his back) had such an intent, and that the machinations used to induce Basile and Kaufman to sign on the dotted line show this, but the bankruptcy judge did not make that finding. Suppose that, at the time of the Sizzler settlement, FBN owed $500,000 to River Bank and had no other creditors. Holding a gun to Basile’s head (or blackmailing him) to induce Basile to sign over $1.4 million might be a crime, and a fraud on FBN’s stockholders (who otherwise would receive the $900,000 surplus), but it would not be a fraud on FBN’s creditors— and it is this sense in which § 548(a)(1) speaks of fraud. Our second difficulty with the finding is that both the bankruptcy judge and the district judge equated financial pressure with “fraud.” Suppose Kaufman had guaranteed SFSA’s debts to River Bank. During the settlement negotiations, Waxman doubtless would have reminded Kaufman that every dollar paid to River Bank is a dollar’s less exposure on the guarantee. Would that reminder spoil the transfer? Hardly; guarantees are designed to have precisely this effect. Lenders hope" }, { "docid": "22026261", "title": "", "text": "judgment on a § 548(a)(1) theory. That subsection nonetheless remains available if it turns out to matter when the time comes to distribute FBN’s assets. If there was only constructive fraud under § 548(a)(2) — if, that is, the payment was designed to preserve the principals’ commercial reputations even in the absence of a legal obligation to pay, or if the money was a gift by a generous FBN, like the charitable contribution in Scholes v. Lehmann, 56 F.3d 750 (7th Cir.1995) — then, River Bank believes, it is entitled to any surplus remaining after full payment to FBN’s bona fide outside creditors, the $450,000 in claims that were timely filed (plus interest and the costs of administration). A transfer from FBN is really from its equity owners (who can part with then-money, but not with trade creditors’). Ba-sile, Kaufman, and SIG Partners parted with the money for their own reasons. So if money remains, and the trustee can pay either River Bank or SFSA then, River Bank insists, the trustee should give it the residue — for SFSA is just Basile, Kaufman, and SIG Partners, who already have relinquished their claims. Many cases interpreting state fraudulent conveyance law say that, once outside creditors have been satisfied, the transaction remains valid between the transferor and transferee. E.g., Windle v. Flinn, 196 Or. 654, 672, 251 P.2d 136, 144 (1952); Service Mortgage Corp. v. Welson, 293 Mass. 410, 413, 200 N.E. 278, 280 (1936). Some of these are from Illinois, whose law governs to the extent state law plays a role in defining the parties’ rights. E.g., Feltinton v. Rudnik, 401 Ill. 362, 363, 82 N.E.2d 436, 437 (1948). For example, if Basile, having $100,-000 in net assets, had given $200,000 to his alma mater, that transfer would have been avoidable under § 548(a)(2); but if after paying Basile’s creditors the trustee in bankruptcy had $100,000 left over, the money should be restored to the college rather than be given back to Basile. This possibility, we gather, is what Judge Sonderby originally contemplated in calling River Bank a contingent creditor. IV" }, { "docid": "18906980", "title": "", "text": "admitted into evidence, briefs submitted by the parties, and arguments of counsel, the Court agrees. Accordingly, the $1.4 million fraudulently transferred to River Bank is hereby avoided. BACKGROUND FBN The relevant facts are as follows. In 1986, FBN was formed to act as the operating company for certain Sizzler restaurants. [UF ¶ 9(b) ] FBN was authorized and licensed to operate those restaurants pursuant to certain license agreements. [UF ¶ 9(b) ] The shareholders of FBN were Anthony Ba-sile (“Basile”) (25%), Quest Equities (37.5%), and SIG Partners (37.5%). [UF ¶90>)] Quest Equities was in the business of making loans and equity investments, and was a wholly owned subsidiary of River Bank. [UF ¶ 5] Both Basile, and Gerald Kaufman, one of the partners of SIG Partners, signed personal guarantees of FBN’s various obligations to Sizzler. [UF ¶ 30, 31] Basile was the president of FBN and was responsible for the operation of the restaurant facilities. [Tr. 91] FBN leased the Sizzler restaurants and the furniture, fixtures, and equipment (the so-called “hard assets”) for the restaurants from SIG Food Services Associates, L.P. (“SFSA”). [UF ¶ 9(b) ] SFSA’s financing for the acquisition of real estate and hard assets came from two principal sources. In August 1987, River Bank loaned $7.5 million to SFSA pursuant to a mortgage note (“River Bank Loan”). [UF ¶ 17] The River Bank Loan was not secured by any of the assets of FBN or MRC. [UF ¶ 18; D.Ex. 13] In addition to the $7.5 million loan, SFSA borrowed $100,000 from Ba-sile who in turn borrowed $100,000 from Quest Equities. Quest Equities’ $100,000 loan to Basile was evidenced by a promissory note. [UF ¶ 19, 20, 47] In 1988, American National Bank & Trust Company of Chicago (“ANB”) loaned $6.5 million to SFSA (“ANB Loan”). [Tr. 271-272; P.Ex. 5] In order to obtain that loan, River Bank was required to subordinate the River Bank Loan and any security interests it had to those of ANB via an intercreditor agreement. [Tr. 272; P.Ex. 5] MRC Like FBN, Midwest Restaurant Concepts, Inc. was another operating company for Sizzler" }, { "docid": "22026260", "title": "", "text": "in his role as equity holder (and creditor of SFSA) than he could gain in his role as Quest’s debtor. Most likely the bankruptcy and district judges were well aware of this, but thought the actual financial pressure impermissible nonetheless: Basile’s note had been forgiven, so Waxman’s statements amounted to a threat to file frivolous (but costly) litigation, which no one has a right to do (see Bill Johnson’s Restaurants, Inc. v. NLRB, 461 U.S. 731, 741-44, 103 S.Ct. 2161, 2168-71, 76 L.Ed.2d 277 (1983); Premier Electrical Construction Co. v. National Electrical Contractors As-s’n, Inc., 814 F.2d 358, 371-72 (7th Cir.1987)); and Kaufman’s guarantees did not cover either FBN’s or SFSA’s debts to River Bank, so Waxman’s pressure on him induced SIG Partners’ agent to abandon the interests of his principal. Because neither judge drew this line explicitly, however, and because both judges’ opinions can be read to condemn, as fraudulent, any effort to collect a debt by reminding the debtor’s managers that payment is in their personal interest, we are reluctant to affirm the judgment on a § 548(a)(1) theory. That subsection nonetheless remains available if it turns out to matter when the time comes to distribute FBN’s assets. If there was only constructive fraud under § 548(a)(2) — if, that is, the payment was designed to preserve the principals’ commercial reputations even in the absence of a legal obligation to pay, or if the money was a gift by a generous FBN, like the charitable contribution in Scholes v. Lehmann, 56 F.3d 750 (7th Cir.1995) — then, River Bank believes, it is entitled to any surplus remaining after full payment to FBN’s bona fide outside creditors, the $450,000 in claims that were timely filed (plus interest and the costs of administration). A transfer from FBN is really from its equity owners (who can part with then-money, but not with trade creditors’). Ba-sile, Kaufman, and SIG Partners parted with the money for their own reasons. So if money remains, and the trustee can pay either River Bank or SFSA then, River Bank insists, the trustee should give it the" }, { "docid": "22026237", "title": "", "text": "EASTERBROOK, Circuit Judge. During the 1980s River Bank America lent more than $7 million to SIG Food Services Associates (SFSA), to finance SFSA’s purchase of equipment for a group of Sizzler Family Steakhouses. SFSA leased the equipment to FBN Food Services, Ine., which operated the restaurants. SFSA and FBN had common equity owners: SIG Partners, Quest Equities Corp. (a subsidiary of River Bank), and Anthony Basile. SFSA later borrowed $6.5 million from American National Bank (ANB); River Bank agreed to stand behind ANB in the queue for payment. The business venture was not a success, and for the last six years the equity and debt investors have been fighting for larger shares of the carcass. FBN is being liquidated under Chapter 7 of the Bankruptcy Code. River Bank has filed two appeals: one protests an order that it return $1.4 million as a fraudulent conveyance, and the other complains about a decision by FBN’s trustee that FBN owes some $2.4 million to SFSA. I Litigation often accompanies failure in the marketplace. When it became clear that the restaurants were unprofitable, FBN filed suit against Sizzler Restaurants International, the franchisor. Sizzler counterclaimed, and it also initiated an arbitration against Midwest Restaurant Concepts (MRC), an enterprise affiliated with FBN and SFSA, which had promised (but failed) to indemnify Sizzler against losses arising out of transactions with FBN. In September 1990 everyone sat down to parley, and a bargain was reached. Sizzler would dismiss the MRC arbitration (the firm lacked assets to pay any award), and all counterclaims filed in that arbitration also would be dismissed. Sizzler agreed to pay $4,175,000 to resolve the litigation. In exchange, it wanted releases from FBN, SFSA, MRC, and all of those ventures’ principals — SIG Partners, Basile, Quest Equities, and River Bank (which controlled Quest). The largest share went to SFSA, which transferred two parcels of real estate to Sizzler. Quest and River Bank refused to sign the agreement unless they received $2.125 million. Rather than see the deal collapse, Basile (who spoke for FBN) and Gerald Kaufman (who spoke for SIG Partners) agreed. Sizzler disbursed" }, { "docid": "22026268", "title": "", "text": "Kaufman, and SIG Partners, this record does not show what will become of any distribution to SFSA from the FBN estate. For all we know, SFSA will turn the money over to ANB as a payment on the loan, and ANB unquestionably has a claim superior to River Bank’s. This uncertainty, coupled with the ambiguities we have identified in the findings related to “actual fraud,” mean that further proceedings lie ahead. When the case returns to the bankruptcy court, the judge should address a series of questions: 1. Did the transfer occur with actual intent to defraud FBN’s creditors (as opposed to an intent to defraud Basile and Kaufman personally, or to defraud FBN’s equity investors)? If the answer is yes, then River Bank has no claim to any amount left over after satisfying FBN’s debts, and this adversary proceeding is at an end. 2. If the transfer is avoided only under § 548(a)(2), then the identity of the distributees via SFSA matters. The court should determine whether payments to SFSA will end up in the hands of Basile, Kaufman, and SIG Partners. If ANB and other outside creditors are the real parties in interest, then again River Bank has no legitimate objection to the trustee’s recognition of SFSA’s claim. 3. If a distribution to SFSA is likely to be redistributed to SFSA’s equity investors, then the court must address two further questions: first, whether the trustee’s recognition of SFSA’s belated claim was proper (recall that this is the question Judge Sonderby originally planned to address once River Bank had become a real rather than a contingent creditor), and, second, if the trustee’s action was proper, whether under Illinois law River Bank takes ahead of the equity investors. At this point the possibility of fraud on Basile and Kaufman personally may reemerge. They can’t give away creditors’ money, but they can give their own equity positions to Quest, another equity owner (and therefore, indirectly, to River Bank); but if Waxman’s arm-twisting was real fraud, as opposed to commercial pressure, then the transfer cannot be understood even as a gift, and" }, { "docid": "22032531", "title": "", "text": "MEMORANDUM OPINION AND ORDER ASPEN, Chief Judge: The bankruptcy court below found that appellant River Bank America (“River Bank”) had received a fraudulent conveyance of $1.4 million from the debtor FBN Food Services, Inc. (“FBN”). The court avoided the $1.4 million transfer and granted Trustee James Carmel’s (“Trustee”) request to recover the funds, plus prejudgment and post-judgment interest. River Bank appeals that decision, arguing (1) that the transferred funds were never “property of the debtor,” (2) that River Bank was not shown to have committed actual or constructive fraud, and (3) that, in any event, the Trustee should not be entitled to recover more than the total amount of legitimate claims filed in the bankruptcy court. We affirm the decision of the bankruptcy court in all respects. I. Background The underlying bankruptcy proceeding arises out of the operation of Sizzler restaurant franchises by FBN, Midwest Restaurant Concepts (“MRC”), and SIG Food Services Associates (“SFSA”). All three companies were owned by the same entities: SIG Partners, Quest Equities Corporation (“Quest Equities”) and Anthony Basile. Quest Equities was a wholly owned subsidiary of appellant River Bank, and SIG Partners was a New York general partnership owned by Stuart Seigel, Irwin Cohen and Gerald Kaufman. Basile, president of FBN, was responsible for the operation of FBN’s Sizzler restaurant franchises, and, along with Kaufman, had personally guaranteed FBN’s obligations to Sizzler. MRC leased the restaurant facilities and fixtures directly from Sizzler, and its obligations under these leases were guaranteed by FBN, Basile and Kaufman. In contrast, FBN leased its restaurant facilities and fixtures from SFSA. In order to acquire these hard assets, SFSA obtained a $7.5 million unsecured loan from River Bank (“River Bank Loan”) in 1987, as well as a $100,000 loan from Basile. An additional $6.5 million loan was acquired from American National Bank & Trust Company of Chicago (“ANB”) in 1988; however, in order to secure this financing River Bank was required to subordinate the River Bank Loan to ANB pursuant to an intercreditor agreement. Soon after receiving the initial River Bank Loan, SFSA defaulted. River Bank’s president Avrum Waxman sought" }, { "docid": "18906981", "title": "", "text": "from SIG Food Services Associates, L.P. (“SFSA”). [UF ¶ 9(b) ] SFSA’s financing for the acquisition of real estate and hard assets came from two principal sources. In August 1987, River Bank loaned $7.5 million to SFSA pursuant to a mortgage note (“River Bank Loan”). [UF ¶ 17] The River Bank Loan was not secured by any of the assets of FBN or MRC. [UF ¶ 18; D.Ex. 13] In addition to the $7.5 million loan, SFSA borrowed $100,000 from Ba-sile who in turn borrowed $100,000 from Quest Equities. Quest Equities’ $100,000 loan to Basile was evidenced by a promissory note. [UF ¶ 19, 20, 47] In 1988, American National Bank & Trust Company of Chicago (“ANB”) loaned $6.5 million to SFSA (“ANB Loan”). [Tr. 271-272; P.Ex. 5] In order to obtain that loan, River Bank was required to subordinate the River Bank Loan and any security interests it had to those of ANB via an intercreditor agreement. [Tr. 272; P.Ex. 5] MRC Like FBN, Midwest Restaurant Concepts, Inc. was another operating company for Sizzler restaurants. [UF ¶ 9(d) ] MRC was related to FBN and SFSA in that all the companies had common ownership. The shareholders of FBN and MRC, and the main limited partners of SFSA were Anthony Basile, Quest Equities, and SIG Partners. [UF ¶ 9(b) ] However, unlike FBN, MRC leased its restaurant facilities and hard assets directly from Sizzler, not from SFSA. [UF ¶ 9(d) ] Sizzler required FBN, Basile, and Kaufman to sign separate guarantees for MRC’s obligations under the leases. [UF ¶28] Further, FBN, Basile, and Kaufman guaranteed payments due to Sizzler from MRC under the license agreements. [UF ¶ 28; Tr. Ill] In or around April 1989, ANB loaned $4 million to MRC to purchase additional Sizzler franchises. [UF ¶ 23] This loan was secured in part by a leasehold mortgage on the restaurant premises leased by MRC from Sizzler. [UF ¶ 23] As part of this transaction, at ANB’s option, Sizzler was obligated to buy back the MRC assets for ANB’s benefit. [UF ¶ 26; Tr. 108] In such a case," } ]

[ { "docid": "1603920", "title": "", "text": "relieved from further liability. Thereupon the government appealed. The bill of exceptions is meager. It consists of the testimony of Costello. He related his advanced age and his physical and financial misfortunes. The court conceived that these matters, which, of course, have a natural appeal, were open for consideration by reason of the discretion vested in it by the statute. We reach a different conclusion. The court’s discretion was not unlimited. It was a judicial discretion, to be exercised only whenever it appeared that there had been (1) .no- willful default of the party; (2) that a trial could, notwithstanding, he had; and (3) that justice did not require the penalty to he enforced. The law leaves no- room for other considerations, however forceful. U. S. v. Robinson, 158 F. 410, 412 (C. C. A. 4); Henry v. U. S., 288 F. 843, 845, 32 A. L. R. 257 (C. C. A. 7); Fidelity & Dep. Co. v. U. S., 293 F. 575, 576 (C. C. A. 5). The burden was upon the surety to show that lie was entitled to the benefit of the statute. We- think he failed. “Wilful default of the party” means wilful default of the principal or the defendant rather than the surety. This has been tbe uniform holding of the Circuit Courts of Appeal and of the later opinions of the District Courts. Henry v. U. S., supra; Fidelity & Dep. Co. v. U. S., supra; Weber v. U. S., 32 F.(2d) 110, 111 (C. C. A. 8); U. S. v. American Bonding Co., 39 F.(2d) 428, 429 (C. C. A. 9). In carrying the statute into section 1020, Rev. St. (18 USCA §;601), from the original Act of February 28,1839, 5 Stat. 322, § 6, the words “no wilful default of the parties” were changed to “no willful default of the party.” The change was evidently meant to limit “wilful default” to the principal in the obligation. Earlier- contrary opinions of District Courts in the Fourth and Fifth Circuits have been superseded by the opinions above cited from Circuit Courts 'of Appeal of" } ]

[ { "docid": "9512083", "title": "", "text": "government for the expenses incurred. I find that the default of the defendant was willful, that the petitioner was not a party to. such default, and that he made diligent search and spent considerable money in an attempt to apprehend the defendant. ■ United States Code, title 18, § 601, 18 USCA § 601 (United States Révised Statutes, § 1020), provides: “When any recognizance in a criminal cause, taken for, or in, or returnable to, any court of the United States, is forfeited by a breach of the condition thereof, such court may, in its discretion, remit the whole or a part of the penalty, whenever it appears to the court that there has been ho willful default of the party, and that a trial can, notwithstanding, be had in the cause, and that public justice does not otherwise require the same penalty to be enforced.” The first question here presented is whether the court, under this statute, has any discretion to remit in whole or in part the penalty under a bond, on petition of the innocent surety, where the default of the defendant principal was willful. Though the reported decisions are in conflict on this point, those Circuit Courts of Appeals which have considered the question and the Court of Appeals of the District of Columbia appear to be in agreement, and the weight of authority, so far as it has come to my attention, seems to be that the judicial discretion conferred by the above-recited statute is not unlimited, and cannot be exercised unless, among other things, there has been no willful default of the defendant principal. See United States v. Kelleher, 57 F.(2d) 684, 84 A. L. R. 14 (C. C. A. 2); United States v. Fidelity & Casualty Company of New York, 258 F. 444 (C. C. A. 3); United States v. Robinson, 158 F. 410 (C. C. A. 4)Fidelity & Deposit Company of Maryland v. United States, 293 F. 575 (C. C. A. 5); United States v. Costello, 47 F.(2d) 684 (C. C. A. 6); Henry v. United States, 288 F. 843, 32 A." }, { "docid": "5926498", "title": "", "text": "had, notwithstanding the default; and, third, it must be shown that public justice does not require that the penalty be enforced. The willful default mentioned in the statute is that of the principal and not that of the surety. Sun Indemnity Co. v. United States, 3 Cir., 91 F.2d 120. Before the latter may have relief, he must show there was no willful default upon the part of his principal. Henry v. United States, 7 Cir., 288 F. 843, 32 A.L.R. 257; Skolnik v. United States, 7 Cir., 4 F.2d 797; United States v. Kelleher, 2 Cir., 57 F.2d 684, 685, 84 A.L.R. 14; United States v. American Bonding Company, 9 Cir., 39 F.2d 428; United States v. Costello, 6 Cir., 47 F.2d 684 ; Fidelity & Deposit Company of Maryland v. United States, 9 Cir., 47 F.2d 222; Fidelity & Deposit Company of Maryland v. United States, 5 Cir., 293 F. 575; United States v. Robinson, 4 Cir., 158 F. 410; Weber v. United States, 8 Cir., 32 F.2d 110. In other words, if there is a willful default by the principal, the court may not grant relief to the surety. The latter’s actions, no matter how proper they may have been, do not justify a violation of the condition of the statute. The purpose of the recognizance is to secure the presence of the defendant and to that obligation the surety knowingly binds himself. Rarely if ever does he connive in the default of his principal. Therefore, Congress has provided that it is the conduct of the principal and not that of the surety which will justify remission of the penalty. Henry v. United States, supra; United States v. American Bonding Company, supra. Here the motion itself discloses that the principal defaulted; that he left the country and returned to Italy. He failed to appear in accordance with the terms of the recognizance. This was a willful default. Fidelity & Deposit Company of Maryland v. United States, 9 Cir., 47 F.2d 222; United States v. Shelton, D.C., 6 F.2d 897. Accordingly, the judgment is reversed with directions to" }, { "docid": "21520781", "title": "", "text": "the default. This has at times depended on a statute, hut in one way or another it is the uniform result, so far as we can find. The same was true in federal courts before the act of 1839 (United States v. Feely [1813] Fed. Cas. 15,082), and indeed thereafter until comparatively recently (United States v. Santos [1862] Fed. Cas. 16,222; United States v. Duncan [1863] Fed. Cas. 15,004; United States v. Traynor [D. C.] 173 F. 114; Griffin v. U. S. [D. C.] 270 F. 263; United States v. O’Leary [D. C.] 275 F. 202). But the Fourth Circuit held otherwise in 1908 (United States v. Robinson [C. C. A.] 158 F. 410); and although the decisions are not even yet uniform [United States v. Slaimen [D. C.] 6 F.(2d) 464], there has been entire unanimity in cases decided by Circuit Courts of Appeal, and in the District of Columbia. Henry v. U. S., 288 F. 843, 32 A. L. R. 257 (C. C. A. 7); United States v. Walter, 43 App. D. C. 469; Fidelity & Deposit Co. v. U. S., 293 F. 575 (C. C. A. 5); Skolnik v. U. S., 4 F.(2d) 797 (C. C. A. 7); Weber v. U. S., 32 F.(2d) 110 (C. C. A. 8); United States v. American Bonding Co., 39 F.(2d) 428 (C. C. A. 9); Fidelity & Deposit Co. v. U. S., 47 F.(2d) 222 (C. C. A. 9); United States v. Costello, 47 F.(2d) 684 (C. C. A. 6), semble. See, also, United States v. Fabata (D. C.) 253 F. 586; United States v. Smoller (D. C.) 275 F. 1011. The result seems to us unnecessarily harsh, and not required by the language of Rev. St. § 1020 (18 ITSCA § 601). ^he situation presupposes that the trial can be had, and for this reason United States v. Costello (C. C. A.) 47 F.(2d) 684, is not strictly in point. When it can, the primary purpose of tho recognizance has been fulfilled, for it is not to “enrich the Treasury,” as Marshall, C. J., observed in United States v." }, { "docid": "9693332", "title": "", "text": "court below correctly held this to be a case for the application of the general rule that jurors will not be heard to impeach their own verdict by stating what they considered and thought in arriving at it. McDonald v. Pless, 238 U.S. 264, 35 S.Ct. 783, 59 L.Ed. 1300; Davis v. U. S., 5 Cir., 47 F.2d 1071; Economon v. Barry-Pate Co., 55 App.D.C. 143, 3 F.2d 84; Lancaster v. U. S., 5 Cir., 39 F.2d 30; Ramsey v. United States, 6 Cir., 27 F.2d 502; Stewart v. United States, 8 Cir., 300 F. 769-788; Consolidated Rendering Co. v. New Haven Hotel Co., D.C., 300 F. 627. The writer dissents from this view. He thinks the case is within the exception to the rule. Southern Pac. Co. v. Klinge, 10 Cir., 65 F.2d 85. He thinks that in refusing to Consider the affidavits of the jurors, to determine if what they stated was so, and the effect of it, the court did not use, but refused to use, its discretion, and that, under our case of City of Amarillo v. Emery, 5 Cir., 69 F.2d 626, his failure to do. so was reversible error. The judgment is reversed, and the cause is remanded for further and not inconsistent proceedings. Reversed and remanded. HOLMES, Circuit Judge (dissenting in part and concurring in part). Aside from the excessive verdict, which was reduced, I find nothing in the record to indicate bias, prejudice, or passion on the part of the jury. Exercising a.sound discretion, the trial court overruled the motion for á new trial because the necessity therefor on this ground was avoided by the remittitur. This court should not interfere with such discretion. Minneapolis, St. P. & S. S. M. R. Co. v. Moquin, 283 U.S. 520, 51 S.Ct. 501, 75 L.Ed. 1243, is not controlling here because, in that case, the misconduct of counsel for the plaintiff incited the passion and prejudice which affected the verdict. In the later case of Dimick v. Shiedt, 293 U.S. 474, 55 S.Ct. 296, 79 L.Ed. 603, 95 A.L.R. 1150, which recognized the authority" }, { "docid": "7944401", "title": "", "text": "wilfully and contrary to such oath or affirmation states or subscribes any material matter which he does not believe to be true, shall be guilty of perjury; * * 23 D.C.Code § 204 “In every information or indictment to be prosecuted against any person for wilful and corrupt perjury, it shall be sufficient to set forth the substance of the offence charged upon the defendant, and by what court, or before whom the oath was taken (averring such court, or person or persons, to have a competent authority to administer the same) * * *_» . Markham v. U. S., 160 U. S. 319, 16 S.Ct. 288, 40 L.Ed. 441; Hilliard v. U. S., 5 Cir., 24 F.2d 99. . Title 18, U.S.C.A., Federal Rules of Criminal Procedure, Rule 2. . District of Columbia v. American Excavation Co., D.C., 64 F.Supp. 19; 21 C.J.S., Courts, § 198. . See also Sinclair v. U. S., 279 U.S. 263, 49 S.Ct. 268, 73 L.Ed. 692. . U. S. v. Meyers, D.C., 75 F.Supp. 486, affirmed 84 App.D.C. 101, 171 F.2d 800, 11 A.L.R.2d 1, certiorari denied 336 U. S. 912, 69 S.Ct. 602, 93 L.Ed. 1076. . U. S. v. Rumely, 345 U.S. 41, 73 S.Ct. 543, 544. . “President Wilson did not write in light of the history of events since he wrote; more particularly he did not write of the investigative power of Congress in the context, of the First Amendment.” 345 U.S. at page 44, 73 S.Ct. at page 545. See also U. S. v. Patterson, D.C.Cir., - F.2d -, where Judge Bazelon referring to the Rumely case in the Supreme Court of the United States stated: “The Court recognized the possible conflict between the ‘power of Congress to investigate’ and the ‘limitation imposed by the First Amendment’ * * The test most widely accepted by the Courts is that any right granted or secured by the Constitution may not be restricted unless the exercise of that right constitutes a clear and present danger. Schenck v. U. S., 249 U.S. 47, 39 S.Ct. 247, 63 L.Ed. 470. See also" }, { "docid": "13815730", "title": "", "text": "S.Ct. 549, 69 L.Ed. 974; Claude D. Reese, Inc., v. United States, 5 Cir., 75 F.2d 9; Bramwell v. U. S. Fidelity & Guaranty Co., 269 U.S. 483, 46 S.Ct. 176, 70 L.Ed. 368; Barnett v. American Surety Co. of New York, 10 Cir., 77 F.2d 225; Federal Housing Administrator v. Moore, 9 Cir., 90 F.2d 32; Sloan Shipyards Corp. v. United States Shipping Board Emergency Fleet Corp., 258 U.S. 549, 42 S.Ct. 386, 66 L.Ed. 762; Price v. United States, 269 U.S. 492, 46 S.Ct. 180, 70 L.Ed. 373; Salas v. United States, 2 Cir., 234 F. 842; Lord & Burnham Co. v. United States Shipping Board, D.C., 265 F. 955; United States Shipping Board v. Wood, 258 U.S. 549, 42 S.Ct. 386, 66 L.Ed. 762; Guarantee Title & Trust Co. v. Title Guaranty & Surety Co., 224 U.S. 152, 32 S.Ct. 457, 56 L.Ed. 706; United States v. Miller, 8 Cir., 28 F.2d 846, 61 A.L.R. 405; Emergency Fleet Corp. v. Western Union, 275 U.S. 415, 48 S.Ct. 198, 72 L.Ed. 345; Federal Land Bank v. Gaines, 290 U.S. 247, 54 S.Ct. 168, 78 L.Ed. 298; West Virginia Rail Co. v. Jewett Bigelow & Brooks Coal Co., D.C., 26 F.2d 503; Continental Illinois National Bank & Trust Co. v. Chicago, Rock Island & Pacific Ry. Co., 294 U.S. 648, 55 S.Ct. 595, 79 L.Ed. 1110; Mellon v. Michigan Trust Co., 271 U.S. 236, 46 S.Ct. 511, 70 L.Ed. 924; Hatch v. Morosco Holding Co., 2 Cir., 56 F.2d 640, affirmed 2 Cir., 61 F.2d 944; Lewis v. United States, 92 U.S. 618, 23 L.Ed. 513; In re Neff, 6 Cir., 157 F. 57, 28 L.R.A.,N.S., 349, 19 A.B.R. 23; Board of County Commissioners v. Hurley, 8 Cir., 169 F. 92, 22 A.B.R. 209; Muller v. Kling, 149 App.Div. 176, 133 N.Y.S. 614, affirmed 209 N.Y. 239, 103 N.E. 138; In re Eastern Shore Shipbuilding Corp., 2 Cir., 274 F. 893, 48 A.B.R. 110; Beaston v. Farmers’ Bank, 12 Pet. 102, 9 L.Ed. 1017; U. S. v. State Bank of North Carolina, 6 Pet. 29, 8 L.Ed. 308; and" }, { "docid": "7578842", "title": "", "text": "4 F.(2d) 797 (C. C. A. 7); Fidelity & Deposit Co. of Maryland v. United States, 293 F. 575 (C. C. A. 5); Weber v. United States, 32 F.(2d) 110 (C. C. A. 8). These decisions must be eon sidered as superseding the contrary view of certain District Court cases within these circuits. United States v. Duncan, 25 Fed. Cas. 937, No. 15,004 (D. C. Pa.); United States v. Barger, 20 F. 500 (C. C. Pa.); United States v. Feely, 25 Fed. Cas. 1055, No. 15,082 (C. C. Va.); Griffin v. United States, 270 F. 263 (D. C. Ga.). There remains a group of eases from District Courts of other circuits, holding that a remission may be made on petition of an innocent surety, despite the willful default of the defendant. United States v. Santos, 27 Fed. Cas. 954, No. 16,222 (C. C. N. Y.); United States v. O’Leary, 275 F. 202 (D. C. N. Y.); United States v. Traynor, 173 F. 114 (D. C. Tenn.); United States v. Slaimen, 6 F.(2d) 464 (D. C. R. L). A view contrary to that of the two New York eases cited above is expressed by Judge Ray in United States v. Fabata, 253 F. 586 (D. C. N. Y.). It is apparent that the great numerical preponderance of the decided eases is in favor of the position taken by appellant here. So also is the weight of reasoning. The cases which support the view that a surety whose principal has willfully defaulted may nevertheless be relieved by remission of a forfeiture and construe the word “party” as meaning the “party seeking relief,” either rule upon the matter without much digeussion, relying upon authority decided when the statute provided that relief might be given in the absence of willful default “of the parties” (see Henry v. United States [C. C. A.] 288 F. 843, 844), or else lay stress upon the desirability of encouraging sureties to expend time and money to procure the return of defaulting defendants (United States v. Slaimen (D. C.) 6 F.(2d) 464). The primary purpose of a recognizance is" }, { "docid": "21520784", "title": "", "text": "(D. C.) 275 F. 202, must be overruled until the Supreme Court sees fit to declare otherwise, if it ever should. Order reversed, and judgment directed for the face of the recognizance. MANTON, Circuit Judge, concurs in separate opinion. MANTON, Circuit Judge (concurring). The statute in question (title 18, U. S. Code, § 601; Rev. St. 1020 [18 USCA § 601]) provides that where any! recognizance in a criminal cause has been taken and there has been a forfeiture by breach of the eondi tion thereof, the court may, in' its discretion, remit the whole or any part of the penalty whenever it appears to the court that there has been no willful default of the party and that a trial notwithstanding can be had in the cause, and that public justice does not otherwise require the same penalty to be enforced. “Willful default” of the party means willful default of principal, or the defendant, and not the surety. This has been uniformly held by the Circuit Courts of Appeals and the Court of Appeals of the District of Columbia. The reasons which are stated in such opinions sufficiently express my views. They are right in principle and in the construction of the statute. The judgment should be reversed on these authorities. United States v. Costello, 47 F.(2d) 684 (C. C. A. 6); United States v. Amer. Bonding Co., 39 F.(2d) 423 (C. C. A. 9); Weber v. United States, 32 F.(2d) 110 (C. C. A. 8); Skolnik v. United States, 4 F.(2d) 797 (C. C. A. 7); Fidelity & Deposit Co. v. United States, 293 F. 575 (C. C. A. 5); Henry v. United States, 288 F. 843, 32 A. L. R. 257 (C. C. A. 7); United States v. Robinson, 158 F. 410 (C. C. A. 4); United States v. Walter, 43 App. D. C. 468; United States v. Allen, 39 App. D. C. 383; United States v. Von Jenny, 39 App. D. C. 377. I therefore concur in the result." }, { "docid": "21520782", "title": "", "text": "469; Fidelity & Deposit Co. v. U. S., 293 F. 575 (C. C. A. 5); Skolnik v. U. S., 4 F.(2d) 797 (C. C. A. 7); Weber v. U. S., 32 F.(2d) 110 (C. C. A. 8); United States v. American Bonding Co., 39 F.(2d) 428 (C. C. A. 9); Fidelity & Deposit Co. v. U. S., 47 F.(2d) 222 (C. C. A. 9); United States v. Costello, 47 F.(2d) 684 (C. C. A. 6), semble. See, also, United States v. Fabata (D. C.) 253 F. 586; United States v. Smoller (D. C.) 275 F. 1011. The result seems to us unnecessarily harsh, and not required by the language of Rev. St. § 1020 (18 ITSCA § 601). ^he situation presupposes that the trial can be had, and for this reason United States v. Costello (C. C. A.) 47 F.(2d) 684, is not strictly in point. When it can, the primary purpose of tho recognizance has been fulfilled, for it is not to “enrich the Treasury,” as Marshall, C. J., observed in United States v. Feely, Fed. Cas. 15,082, “Public justice” does not require a penalty to be imposed upon the bail who has produced his principal, unless the prosecution has been prejudiced by the delay; why he should be vicariously east for a default which he does not share we cannot understand. Of course he must respond as indemnitor for any pecuniary loss thrown upon the eognizee, but on ordinary principles applicable to penalties the remainder would he remitted. The change of the word “parties” to “party,” in Rev. St. § 1020, appeal's to us a broken reed on which to support the- opposite construction, though it has been its main reliance. We read tho later form distributively, in accordance with pre-existing law, and think that while the principal should not he relieved when he is the “party” seeking remission, the bail should, when he is. But we also think that we should yield to the opinion of six other circuits and the District of Columbia, there being no dissont, and that my decision in United States v. O’Leary" }, { "docid": "9512084", "title": "", "text": "of the innocent surety, where the default of the defendant principal was willful. Though the reported decisions are in conflict on this point, those Circuit Courts of Appeals which have considered the question and the Court of Appeals of the District of Columbia appear to be in agreement, and the weight of authority, so far as it has come to my attention, seems to be that the judicial discretion conferred by the above-recited statute is not unlimited, and cannot be exercised unless, among other things, there has been no willful default of the defendant principal. See United States v. Kelleher, 57 F.(2d) 684, 84 A. L. R. 14 (C. C. A. 2); United States v. Fidelity & Casualty Company of New York, 258 F. 444 (C. C. A. 3); United States v. Robinson, 158 F. 410 (C. C. A. 4)Fidelity & Deposit Company of Maryland v. United States, 293 F. 575 (C. C. A. 5); United States v. Costello, 47 F.(2d) 684 (C. C. A. 6); Henry v. United States, 288 F. 843, 32 A. L. R. 257 (C. C. A. 7); Skolnik v. United States, 4 F.(2d) 797 (C. C. A. 7); Weber v. United States, 32 F.(2d) 110 (C. C. A. 8); United States v. American Bonding Company, 39 F.(2d) 428 (C. C. A. 9); Fidelity & Deposit Company v. United States, 47 F.(2d) 222 (C. C. A. 9); United States v. Walter, 43 App. D. C. 468, 469. On the authorities cited, the facts in the case at bar bring it within the class of cases where the court has . no discretion to remit the penalty of a bail bond. The conclusion at which I have arrived in connection with the first question makes it unnecessary to consider whether, in a proper case, the court has the power to remit a penalty after final judgment against the surety and after the term at which the judgment was entered. The petition for remission of penalty is dismissed." }, { "docid": "20180418", "title": "", "text": "company, and has willfully defaulted, the Court should not open such defaults. The surety company requests relief under title 18, United States Code, § 601 (18 USCA § 601), which reads as follows: “§ 601. Remission of penalty of recognizance. When any recognizance in a criminal cause, taken for, or in, or returnable to, any court of the United States, is forfeited by a breach of the condition thereof, such court may, in its discretion, remit the whole or a part of the penalty, whenever it appears to the court that there has been no willful default of the party, and that a trial can, notwithstanding, be had in the cause, and that public justice does not otherwise require the same penalty to be enforced.” The fact that the defendant appeared after default will not of itself relieve the surety company from liability. McGlashan v. United States (C. C. A.) 71 F. 434; United States v. Graner (C. C.) 155 F. 679. The use of the words “willful default of the party” in section 601, title 18, United States Code (18 USCA § 601), refers to the willful default of a defendant and not the surety company. In this connection Judge Mantón, in a concurring opinion in the matter of United States v. Kelleher et al. (C. C. A.) 57 F.(2d) 684, 686, said: “‘Willful default’ of the party means willful default of principal, or the defendant, and not the surety. This has been uniformly held by the Circuit Courts of Appeals and the Court of Appeals of the District of Columbia. The reasons which are stated in such opinions sufficiently express my views. They are right in principle and in the construction of the statute. The judgment should be -reversed on these authorities. United States v. Costello, 47 F.(2d) 684 (C. C. A. 6); United States v. Amer. Bonding Co., 39 F.(2d) 428 (C. C. A. 9); Weber v. United States, 32 F.(2d) 110 (C. C. A. 8); Skolnik v. United States, 4 F.(2d) 797 (C. C. A. 7); Fidelity & Deposit Co. v. United States, 293 F. 575" }, { "docid": "5926497", "title": "", "text": "8 Cir., 77 F.2d 673, 103 A.L.R. 527; National Surety Company v. United States, 8 Cir., 78 F.2d 407; United States v. Russo, D.C., 7 F.Supp. 391. The Act of Congress defining the conditions under which the court may exercise discretion in granting, relief to the sureties, 18 U.S.C.A. § 601, is as follows: “When any recognizance in a criminal cause, taken for, or in, or returnable to, any court of the United States, is forfeited by a breach of the condition thereof, such court may, in its discretion, remit the whole or a part of the penalty, whenever it appears to the court that there has been no willful default of the party, and that a trial, can, notwithstanding, be had in the cause, and that ■ public justice does not otherwise require the same penalty to be enforced.” Under this statute, before the court may grant relief, three conditions must be present. First, there must have been no willful default of the principal; second, it must be possible that a trial can be had, notwithstanding the default; and, third, it must be shown that public justice does not require that the penalty be enforced. The willful default mentioned in the statute is that of the principal and not that of the surety. Sun Indemnity Co. v. United States, 3 Cir., 91 F.2d 120. Before the latter may have relief, he must show there was no willful default upon the part of his principal. Henry v. United States, 7 Cir., 288 F. 843, 32 A.L.R. 257; Skolnik v. United States, 7 Cir., 4 F.2d 797; United States v. Kelleher, 2 Cir., 57 F.2d 684, 685, 84 A.L.R. 14; United States v. American Bonding Company, 9 Cir., 39 F.2d 428; United States v. Costello, 6 Cir., 47 F.2d 684 ; Fidelity & Deposit Company of Maryland v. United States, 9 Cir., 47 F.2d 222; Fidelity & Deposit Company of Maryland v. United States, 5 Cir., 293 F. 575; United States v. Robinson, 4 Cir., 158 F. 410; Weber v. United States, 8 Cir., 32 F.2d 110. In other words, if" }, { "docid": "7578841", "title": "", "text": "it appears to the court that there has been no willful default of the party, and that a trial can, notwithstanding, be had in the cause, and that public justice does not otherwise require the same penalty to be enforced.” The controversial point herein is as to what is meant by the “willful default of the party.” Appellant contends that the default referred to is that of the defendant, and that, where his default has been willful, there can be no remission of forfeiture, even though the surety may have been completely free from any complicity in the default. While the reported decisions show a divergence of opinion upon this point, the Circuit Courts of Appeal which have been called upon to consider this question have uniformly adopted the view of appellant. United States v. Robinson, 158 F. 410 (C. C. A. 4); United States v. Fidelity & Casualty Co. of New York, 258 F. 444 (C. C. A. 3); Henry v. United States, 288 F. 843 (C. C. A. 7); Skolnik v. United States, 4 F.(2d) 797 (C. C. A. 7); Fidelity & Deposit Co. of Maryland v. United States, 293 F. 575 (C. C. A. 5); Weber v. United States, 32 F.(2d) 110 (C. C. A. 8). These decisions must be eon sidered as superseding the contrary view of certain District Court cases within these circuits. United States v. Duncan, 25 Fed. Cas. 937, No. 15,004 (D. C. Pa.); United States v. Barger, 20 F. 500 (C. C. Pa.); United States v. Feely, 25 Fed. Cas. 1055, No. 15,082 (C. C. Va.); Griffin v. United States, 270 F. 263 (D. C. Ga.). There remains a group of eases from District Courts of other circuits, holding that a remission may be made on petition of an innocent surety, despite the willful default of the defendant. United States v. Santos, 27 Fed. Cas. 954, No. 16,222 (C. C. N. Y.); United States v. O’Leary, 275 F. 202 (D. C. N. Y.); United States v. Traynor, 173 F. 114 (D. C. Tenn.); United States v. Slaimen, 6 F.(2d) 464 (D. C." }, { "docid": "3793707", "title": "", "text": "v. Butler, supra. See also Carey v. Brown, 92 U.S. 171, 23 L.Ed. 469; Rand v. Walker, 117 U. S. 340, 6 S.Ct. 769, 29 L.Ed. 907; Vetterlein v. Barnes, 124 U.S. 169, 8 S.Ct. 441, 31 L.Ed. 400; Dalton v. Hazelet, 9 Cir., 182 F. 561; McMurray v. Chase Nat. Bank of City of New York, D.C., 10 F.Supp. 960. See eases cited supra, Note 3. Newport News Shipbuilding & Dry Dock Co. v. Schauffler, 303 U.S. 54, 57, 58 S.Ct. 466, 82 L.Ed. 646; Fletcher v. Jones, 70 App.D.C. 179, 105 F.2d 58; Pacific States Box & Basket Co. v. White, 296 U.S. 176, 185, 56 S.Ct. 159, 80 L.Ed. 138, 101 A.L.R. 853; Putnam v. Ickes, 64 App.D.C. 339, 78 F.2d 223; Nortz v. United States, 294 U.S. 317, 324, 55 S.Ct. 428, 79 L.Ed. 907, 95 A.L.R. 1346; United States v. Ames, 99 U.S. 35, 45, 25 L.Ed. 295. Minnesota v. Northern Securities Co., supra, 184 U.S. at page 246, 22 S.Ct. 308, 46 L.Ed. 499; Pilger v. Sutherland, 61 App.D.C. 84, 57 F.2d 604. Doerschuck v. Mellon, 60 App.D.C. 383, 55 F.2d 741 (trust fund in United States Treasury); Morgenthau v. Fidelity & Deposit Co., of Maryland, 68 App. D.C. 163, 94 F.2d 632 (funff in United States Treasury evidenced by undelivered check); Pilger v. Sutherland, supra, (shares of stock); Jones v. Rutherford, 26 App.D.C. 114 (shares of stock). See also Bede Steam Shipping Co. v. New York Tr. Co., D.C., 54 F.2d 658 (cash and government obligations deposited with trust company). California v. Sou. Pac. Co., supra." }, { "docid": "4495112", "title": "", "text": "740. See and compare: 55 C.J. 66, Sales §§ 30-35; 23 C.J. 188, Exchange of Property, §§ 5, 25; Norfolk & W. R. Co. v. Sims, 191 U.S. 441, 447, 24 S.Ct. 151, 48 L.Ed. 254; United States v. Hendler, 303 U.S. 564, 566, 58 S.Ct. 655, 82 L.Ed. 1018; Fairbanks v. United States, 306 U.S. 436, 59 S.Ct. 607, 83, L.Ed. 855, affirming, 9 Cir., 95 F.2d 794; Wieboldt v. Commissioner, 7 Ciz, 113 F.2d 384; Bingham v. Commissioner, 2 Cir., 105 F. 2d 971; Rogers v. Commissioner, 9 Cir., 103 F.2d 790; Felin v. Kyle, 3 Cir., 102 F.2d 349; Hale v. Helvering, 66 App.D. C. 242, 85 F.2d 819; Cary v. United States, D.C., 22 F.2d 298; Chicago, G. W. R. Co. v. Postal Tel. Cable Co., 7 Gir., 249 F. 664; Baltimore & O. R. Co. v. Western Union Tel. Co., D.C., 241 F. 162; Crocker-Wheeler Co. v. Bullock, C.C., 134 F. 241, 248; Henderson v. United States, D.C., ,22 F.Supp. 206 ; Polin v. Commissioner, 39 B.T.A. 951; C. L. Gransden & Co. v. Commissioner, 39 B.T.A. 985. Bingham v. Commissioner, 2 Cir., 105 F.2d 971; Felin v. Kyle, 3 Cir., 102 F. 2d 349; Hale v. Helvering, 66 App.D.C. 242, 85 F.2d 819; United States v. Fairbanks, 9 Cir., 95 F.2d 794, affirmed 306 U.S. 436, 59 S.Ct. 607, 83 L.Ed. 855; Street v. Welch, D.C., 30 F.Supp. 394; Henderson v. United States, D.C., 22 F. Supp. 206; Herder v. Helvering, 70 App. D. C. 287, 106 F.2d 153, 160. Pender v. Commissioner, 4 Cir., 110 F.2d 477; Mitchell v. Commissioner, 2 Cir., 48 F.2d 697; Commissioner v. Freihofer, 3 Cir., 102 F.2d 787, 125 A.L.R. 761; Street v. Welch, D.C., 30 F.Supp. 394; Hill v. Commissioner, 40 B.T.A. 376; Jones v. Commissioner, 39 B.T.A. 531; Rust v. Commissioner, 38 B.T.A. 910; Warfield v. Commissioner, 38 B.T. A. 907. Certiorari has been granted by the Supreme Court in those cases. 310 U. S. 622, 60 S.Ct. 1097, 84 L.Ed. 1395; 310 U.S. 619, 60 S.Ct. 1077, 84 L.Ed. 1393. See and compare, Street v." }, { "docid": "9693331", "title": "", "text": "Shiedt, 293 U.S. 474, 55 S.Ct. 296, 79 L.Ed. 603, 95 A.L.R. 1150. The District Judge felt as the jury did, and as we do, the outrageousness of Varnado’s conduct, if, as the jury evidently believed, the circumstances of the arrest were as plaintiffs evidence declared them to be. He regretted, as we do, that the jury in the course of considering the damages appropriate to be awarded was carried away by a sense of that outrage. He thought that a remittitur would restore to the verdict the cool justice that it lacked. We understand the law to be otherwise. We understand that while mere ex-cessiveness in the amount to be awarded may be cured by a remittitur, that' ex-cessiveness which results from passion and prejudice, however natural the resentment which arouses it, may not be so cured. On the other ground for setting the verdict aside, the misconduct of the jury in discussing the liability of the surety company, it is the view of the majority that there was no error. They think the court below correctly held this to be a case for the application of the general rule that jurors will not be heard to impeach their own verdict by stating what they considered and thought in arriving at it. McDonald v. Pless, 238 U.S. 264, 35 S.Ct. 783, 59 L.Ed. 1300; Davis v. U. S., 5 Cir., 47 F.2d 1071; Economon v. Barry-Pate Co., 55 App.D.C. 143, 3 F.2d 84; Lancaster v. U. S., 5 Cir., 39 F.2d 30; Ramsey v. United States, 6 Cir., 27 F.2d 502; Stewart v. United States, 8 Cir., 300 F. 769-788; Consolidated Rendering Co. v. New Haven Hotel Co., D.C., 300 F. 627. The writer dissents from this view. He thinks the case is within the exception to the rule. Southern Pac. Co. v. Klinge, 10 Cir., 65 F.2d 85. He thinks that in refusing to Consider the affidavits of the jurors, to determine if what they stated was so, and the effect of it, the court did not use, but refused to use, its discretion, and that, under our" }, { "docid": "20180419", "title": "", "text": "title 18, United States Code (18 USCA § 601), refers to the willful default of a defendant and not the surety company. In this connection Judge Mantón, in a concurring opinion in the matter of United States v. Kelleher et al. (C. C. A.) 57 F.(2d) 684, 686, said: “‘Willful default’ of the party means willful default of principal, or the defendant, and not the surety. This has been uniformly held by the Circuit Courts of Appeals and the Court of Appeals of the District of Columbia. The reasons which are stated in such opinions sufficiently express my views. They are right in principle and in the construction of the statute. The judgment should be -reversed on these authorities. United States v. Costello, 47 F.(2d) 684 (C. C. A. 6); United States v. Amer. Bonding Co., 39 F.(2d) 428 (C. C. A. 9); Weber v. United States, 32 F.(2d) 110 (C. C. A. 8); Skolnik v. United States, 4 F.(2d) 797 (C. C. A. 7); Fidelity & Deposit Co. v. United States, 293 F. 575 (C. C. A. 5); Henry v. United States, 288 F. 843, 32 A. L. R. 257 (C. C. A. 7); United States v. Robinson, 158 F. 410 (C. C. A. 4); United States v. Walter, 43 App. D. C. 468; United States v. Allen, 39 App. D. C. 383; United States v. Von Jenny, 39 App. D. C. 377.” The statute gives the- court discretion— that means judicial discretion — to remit the whole or part of the penalty whenever it appears to the court that there has been no willful default of the party (the defendant). The proof is convincing that the default of the defendant was willful and deliberate and that he gave fictitious names for the purpose of escaping the consequences of his own acts. A stipulation has been submitted that the forfeiture be remitted upon payment of $250 in each case. Considering the fact that the defendant has pleaded guilty and there has been a disposition of the actions, the surety company will be permitted to pay $250 in each action." }, { "docid": "9605126", "title": "", "text": "50 L.Ed. 437, materials furnished to a subcontractor were held covered by the contractor’s bond. In like vein in Title Guaranty & Trust Co. v. Crane Co., 219 U.S. 24, 31 S.Ct. 140, 55 L.Ed. 72, the statute was held to cover the building of a vessel and to protect those who furnished cartage and towage and drawings and patterns for the work, though these did not go directly into the construction. Quarrying stone at a distance and hauling it to the work were held covered in United States Fidelity & Guaranty Co. v. U. S. for Benefit of Bartlett, 231 U.S. 237, 34 S.Ct. 88, 58 L.Ed. 200. Liberal construction was stressed in Illinois Surety Co. v. John Davis Co., 244 U.S. 376, 37 S.Ct. 614, 61 L.Ed. 1206, and the renting of cars, track, and other equipment to be used in the work was held to be a furnishing of materials covered by the bond. In Brogan v. National Surety Co, 246 U.S. 257, 38 S.Ct. 250, 62 L.Ed. 703, L.R.A.1918D, 776, it was adjudged that labor and materials not incorporated into the work were covered, and where, because of special circumstances, the contractor had to board the laborers, that provisions furnished to him for that purpose were covered. The parties here concede on the one hand that the supplying by sale to the contractor of equipment which should last over several jobs is not covered by the bond, though rental of such is; and on the other hand that recurring expense in maintaining as distinguished from replacing such equipment is covered. Recent cases on this distinction are United States v. McCay (D.C.) 28 F.(2d) 777; United States v. Hercules Co. (D.C.) 52 F.(2d) 454; United States v. Tompkins Co., 63 App.D.C. 332, 72 F.(2d) 383; United States v. James Baird Co., 64 App.D.C. 12, 73 F.(2d) 652; United States v. Fidelity & Deposit Co. (D.C.) 4 F.Supp. 211; United States v. Mittry Brothers Const. Co. (D.C.) 4 F.Supp, 216. The contention as to the parts furnished is whether they are to be considered repairs and maintenance of" }, { "docid": "12449216", "title": "", "text": "of these unpaid material-men and sub-contractors under the terms of the performance bond. Upon the sureties’ performance under their bond obligation, they acquired an equitable lien against any sum remaining in the hands of the one for whose protection the bond was given. This lien relates back to the date of the contract and is superior to any lien arising thereafter. Prairie State Nat. Bank of Chicago v. United States, 164 U.S. 227, 17 S.Ct. 142, 41 L.Ed. 412; Henningsen v. U. S. Fidelity & Guaranty Co., 208 U.S. 404, 28 S.Ct. 389, 52 L.Ed. 547; Town of River Junction v. Maryland Casualty Co., 5 Cir., 110 F.2d 278, certiorari denied 310 U.S. 634, 60 S.Ct. 1077, 84 L.Ed. 1404; Standard Acc. Ins. Co. of Detroit, Mich. v. Federal Nat. Bank, 10 Cir., 112 F.2d 692, affirmed on rehearing, 10 Cir., 115 F.2d 34; Exchange State Bank v. Federal Surety Co., 8 Cir., 28 F.2d 485, 488; Claiborne Parish School Bd. v. Fidelity & Deposit Co. of Maryland, 5 Cir., 40 F.2d 577, 579; Maryland Casualty Co. v. Dulaney Lumber Co., 5 Cir., 23 F.2d 378, 380; Fidelity & Deposit Co. of Maryland v. Union State Bank, D.C. Minn., 21 F.2d 102, 104; In re Van Winkle, D.C.Ky., 49 F.Supp. 711; United States Fidelity & Guaranty Co. v. John R. Alley & Co., D.C.Okl., 34 F.Supp. 604; Southern Surety Co. v. J. R. Holden Land & Lumber Co., 8 Cir., 14 F.2d 411, 413; American Fidelity Co. v. Delaney, D.C. Vt., 114 F.Supp. 702. It is superior to the Government’s lien for unpaid taxes. American Surety Co. of New York v. City of Louisville M. H. Comm., D.C.Ky., 63 F.Supp. 486, affirmed Glenn v. Ameri can Surety Co., 6 Cir., 160 F.2d 977; United States Fidelity & Guaranty Co. v. United States, 10 Cir., 201 F.2d 118; New York Casualty Co. v. Zwerner, D.C. Ill., 58 F.Supp. 473; American Fidelity Co. v. Delaney, D.C.Vt., 114 F.Supp. 702. The performance bond was executed on June 29, 1949; therefore, the sureties’ lien is superior to any lien arising thereafter, including the Government’s" }, { "docid": "20953223", "title": "", "text": "becoming due under the contract as security to plaintiff, in event of default by Peterson, would, if valid, have given plaintiff an equitable lien upon the retained percentage, but this assignment cannot be held valid in the circumstances of this case under the decision of the court in Martin v. National Surety Co. et al., 300 U.S. 588, 594-598, 57 S.Ct. 531, 81 L.Ed. 822. The decisions of the U. S. Circuit Courts of Appeal as to the question whether in the absence of a valid assignment or statute, the proceeds of a contract with the Government are chargeable with an equitable lien in favor of laborers and material-men and a surety who pays such claims, are conflicting. Martin v. National Surety Co., supra, 300 U.S. at page 593, 57 S.Ct. 531, 81 L.Ed. 822. See, also, Farmers’ Bank v. Hayes et al., 6 Cir., 58 F.2d 34, 37; American Bonding Co. v. Central Trust Co. of Baltimore, 7 Cir., 240 F. 400; Lyttle v. National Surety Co., 43 App.D.C. 136; National Surety Co. v. Lane, 45 App. D.C. 176; Philadelphia National Bank v. McKinlay, 63 App.D.C. 296, 72 F.2d 89; Moran v. Guardian Casualty Co., 64 App. D.C. 188, 76 F.2d 438; and Pratt Lumber Co., Inc., v. T. H. Gill Co., D.C., 278 F. 783. But we are of opinion after examining all the authorities on the subject that the rule announced and applied in Schmoll, etc., v. United States, supra, that the surety does not acquire, such an equitable lien under its payment bond, is the correct rule. No case has been cited, and we have been unable to find one in which the Supreme Court has held that an equitable lien accrues in favor of laborers and materialmen or to a surety in the event he pays such claims on the balance due under a contract. Cf. Mankin v. United States for the Use of Ludowici-Celadon Co., 215 U.S. 533, 30 S.Ct. 174, 54 L.Ed. 315; Title Guaranty & Trust Co. of Scrantoh, Pennsylvania, v. Crane Co., 219 U.S. 24, 31 S.Ct. 140, 55 L.Ed. 72;" } ]

[ { "docid": "22643226", "title": "", "text": "process have been met. As we stressed in Barker, none of these factors is a necessary or sufficient condition for finding unreasonable delay. Rather, these elements are guides in balancing the interests of the claimant and the Government to assess whether the basic due process requirement of fairness has been satisfied in a particular case. III In applying the Barker balancing test to this situation, the overarching factor is the length of the delay. As we said in Barker, the length of the delay “is to some extent a triggering mechanism.” Ibid. Little can be said on when a delay becomes presumptively improper, for the determination necessarily depends on the facts of the particular case. Our inquiry is the constitutional one of due process; we are not establishing a statute of limitations. Obviously, short delays — of perhaps a month or so — need less justification than longer delays. We regard the delay here — some 18 months— as quite significant. Being deprived of this substantial sum of money for a year and a half is undoubtedly a significant burden. Closely related to the length of the delay is the reason the Government assigns to justify the delay. Id., at 531. The Government must be allowed some time to decide whether to institute forfeiture proceedings. The customs official’s decision to seize property is of necessity a hasty one. Both the Government and the claimant have an interest in a rule that allows the Government some time to investigate the situation in order to determine whether the facts entitle the Government to forfeiture so that, if not, the Government may return the money without formal proceedings. Cf. Lovasco, supra, at 791. Normally, investigating officials can make such a determination fairly quickly, so that this reason alone could only rarely justify a lengthy delay. An important justification for delaying the initiation of forfeiture proceedings is to see whether the Secretary’s decision on the petition for remission will obviate the need for judicial proceedings. This delay can favor both the claimant and the Government. Cf. Barker, supra, at 521; Lovasco, supra, at 794-795." } ]

[ { "docid": "10528486", "title": "", "text": "district court for further development. C. Constitutional Due Process Appellees claim, and the district court found, that the delay between the seizure of the Parcels on or around October 4, 1989 and the summary judgment hearing on September 12, 1990, without an adversarial hearing on probable cause, violated their rights to due process under United States v. Eight Thousand Eight Hundred and Fifty Dollars, 461 U.S. 555, 103 S.Ct. 2005, 76 L.Ed.2d 143 (1983) (hereinafter $8,850). This Court’s standard of review for the district court’s application of $8,850 appears in United States v. Wragge, 893 F.2d 1296 (11th Cir.1990). The application of Barker, and hence $8,850, is a mixed question of law and fact. This Court reviews the law de novo and the facts for clear error. Id. at 1298 n. 4. The Supreme Court, in $8,850, provided a balancing test consisting of four factors. No single factor is dispositive for evaluating claims of an unconstitutional denial of property without due process of law. The factors include: (1) “the length of the delay,” (2) “the reason the Government assigns to justify the delay,” (3) “the claimant’s assertion of the right to a judicial hearing,” and (4) “whether the claimant has been prejudiced by the delay.” $8,850, 461 U.S. at 565, 568-69, 103 S.Ct. at 2012, 2014-15. The $8,850 Court provided additional guidance for evaluating the first two factors and the fourth factor that is particularly relevant to the present case. Elaborating on the first two factors, the Court noted that “[pjending criminal proceedings present [weighty] justifications for delay in instituting civil forfeiture proceedings. A prior or contemporaneous civil proceeding could substantially hamper the criminal proceeding[;] however, the pendency of criminal proceedings is only an element to be considered in determining whether delay is unreasonable.” Id. at 567, 103 S.Ct. at 2013. The Court also observed that “diligent pursuit of ... criminal proceedings” by the Government “indicates strongly that the reasons for its delay ... were substantial.” Id. at 568, 103 S.Ct. at 2014. Regarding the fourth factor, prejudice from delay, the Court stated that the “primary inquiry is whether the" }, { "docid": "23270688", "title": "", "text": "Neumann had violated § 1497. 660 F. 2d 1319, 1323 (1981). The court, however, also considered and sustained Von Neumann’s claim that the 36-day delay in acting on his remission petition denied Von Neu-mann due process of law in violation of the Fifth Amendment. The court reasoned that speed in the handling of the remission petition, particularly where the seizure is of an automobile, is constitutionally required — that strict guidelines in responding to remission petitions are necessary “to ensure the due process rights of administrative claimants,” id., at 1326-1327, and concluded that Customs must “act on a petition for remission or mitigation within 24 hours of receipt,” id., at 1327. In addition, the court ruled, a claimant has a right to a personal appearance to present his or her claim. Ibid. The Government petitioned for certiorari. We granted the petition, vacated, and remanded for reconsideration in light of United States v. $8,850, 461 U. S. 665 (1983). 462 U. S. 1101 (1983). In $8,850, however, the issue presented did not involve the remission procedure; rather the question was whether the Government’s 18-month delay in bringing a forfeiture proceeding violated the claimant’s right to due process of law. The Court held that due process requires a postseizure determination within a reasonable time of the seizure. We concluded that the four-factor balancing test of Barker v. Wingo, 407 U. S. 514 (1972), provides the relevant framework for determining whether a delay was reasonable. The Barker test involves a weighing of four factors: the length of any delay, the reason for the delay, the defendant’s assertion of his right, and prejudice suffered by the defendant. Applying this test to the 18-month delay before it, the Court in $8,850 found no unreasonable delay, in part because a substantial portion of the delay in question was attributable to pending administrative and criminal proceedings. On remand in this case, the Court of Appeals recognized that $8,850 “presented a somewhat different issue from that arising in the instant case,” 729 F. 2d 657, 659 (1984), because $8,850 dealt with forfeiture rather than the remission procedure. Nevertheless," }, { "docid": "6527207", "title": "", "text": "Currency, 461 U.S. 555, 569, 103 S.Ct. 2005, 2014, 76 L.Ed.2d 143 (1983), the United States Supreme Court held that an eighteen month delay between the Custom Service’s seizure of currency and its filing of a forfeiture action was not unreasonable and, therefore, did not violate the claimant’s due process rights. The Court set forth the criteria to determine whether the government’s delay in filing a forfeiture proceeding after seizure of property violates due process: the length of delay, the reason for the delay, the defendant’s assertion of his or her right, and prejudice to the defendant. Id. at 564, 103 S.Ct. at 2012. The fishermen assert that they do not allege that the delay in filing the forfeiture proceedings is a per se violation of due process. Rather, they assert that failure to provide a hearing before the scallops are sold denies them a hearing at a meaningful time under Armstrong v. Manzo, 380 U.S. 545, 552, 85 S.Ct. 1187, 1191, 14 L.Ed.2d 62 (1965). The fishermen contend that the sale of the scallops deprives them of any means to defend against civil penalty and forfeiture proceedings; therefore, they are substantially prejudiced. See United States v. $8,850, 461 U.S. at 569, 103 S.Ct. at 2014 (primary inquiry with respect to prejudice is whether, delay has hampered claimant in presenting defense on the merits by loss of witnesses or evidence). The fishermen argue that they are unable to measure the scallops while at sea by the precise weighing methods required by 50 C.F.R. § 650.21. Additionally, the method used by fishermen while at sea, the “volumetric method,” may give results that are inconsistent with results' obtained by the methods required by the regulations. Thus, the fishermen argue that they are unable to rebut the presumption that the entire catch is undersized once the catch is sold. According to the fishermen, release of the catch on bond or a pre-sale hearing is required to permit them to gather evidence to rebut the presumption.- Under the regulations, however, the party in possession of the shucked scallops can request that the inspecting agent" }, { "docid": "7552856", "title": "", "text": "555, 103 S.Ct. 2005, 76 L.Ed.2d 143 (1983) (“8,850”), claimant’s contention must be rejected. In $8,850, the Supreme Court held that Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), supplied the appropriate test lor determining whether delay in initiating judicial forfeiture proceedings violated due process. 461 U.S. at 564, 103 S.Ct. 2012. Barker requires a weighing of four factors: the length of delay, the reason for the delay, the claimant’s assertion of his right, and prejudice to the claimant. Id. The Supreme Court stated that “none of these factors is a necessary or sufficient condition for finding unreasonable delay. Rather, these elements are guides in balancing the interests of the claimant and the Government to assess whether the basic due process requirement of fairness has been satisfied in a particular case.” Id. at 565, 103 S.Ct. at 2012-13 (footnote omitted). Applying these factors in $8,850, the Supreme Court held that an eighteen-month delay, “quite significant” in itself, did not violate due process. Id. Applying these factors to the instant case, claimant was not denied due process of law. The time lapse between the seizure of the automobile and the filing of the complaint was seven months and eight days. This delay is significantly less than that in $8,850. In fact, most cases where the delay was found to be reasonable involved periods of time much longer than the seven-month period in this case. $8,850, 461 U.S. 555, 103 S.Ct. 2005, 76 L.Ed.2d 143 (18 months). United States v. Two Hundred Ninety-Five Ivory Carvings, 726 F.2d 529 (9th Cir.1984) (19 months); United States v. Forty-Seven Thousand Nine Hundred Eighty Dollars ($47,980.00) in Canadian Currency, 726 F.2d 532 (9th Cir.1984) (14 months); United States v. Thirteen (13) Machine Guns & One (1) Silencer, 726 F.2d 535 (9th Cir.1984) (21 months). Further, the reasons for the delay were legitimate. As stated in the stipulated facts in the district court, there is no precedent with respect to forfeiture of a depreciable asset which is the subject of a tax shelter scheme. The government legitimately needed more time than normal" }, { "docid": "9654565", "title": "", "text": "been seized without a warrant. These opinions are inapposite to the issue before this court because the seizure of the Corvette, as discussed above, satisfied the fourth amendment. The distinction between the constitutional seizure of property and the procedural aspects of bringing the res within the jurisdiction of the court is critical to our disposition of this issue. Our holding is a narrow one for it does not address the question of whether the procedure would pass constitutional muster if a clerk’s warrant were relied upon for the seizure of property for which a warrant was essential under the fourth amendment. IV. Lastly, Turner claims that the 16-month delay between the date the auto mobile was seized by the Arlington County Police Department and the filing of this action constitutes an unreasonable delay amounting to a violation of his right to due process. An unreasonable delay in instituting a forfeiture proceeding may constitute a violation of due process requiring the return of the property. United States v. Eight Thousand Eight Hundred and Fifty Dollars ($8,850) in United States Currency, 461 U.S. 555, 564-65, 103 S.Ct. 2005, 2012, 76 L.Ed.2d 143 (1983). In determining whether the government brought the proceeding within a reasonable time, courts are to consider the following factors: “length of delay, the reason for the delay, the [claimant’s] assertion of his right, and prejudice to the [claimant].” Id. at 564, 103 S.Ct. at 2012. Considering these factors, we conclude that the delay was not unreasonable. Although Turner alleged the administrative forfeiture was void because of his lack of notice, Turner does not challenge that the government reasonably believed that the Corvette had been properly forfeited in the administrative action. Under the impression that the automobile had already been forfeited, the government had no reason to initiate judicial proceedings until Turner challenged the validity of the administrative forfeiture. The government proceeded to file this action without delay once Turner made his challenge. The delay was as much attributable to Turner’s decision to defer asserting his right to return of the vehicle until after the conclusion of the state proceedings" }, { "docid": "18680876", "title": "", "text": "States was further obliged to investigate a second petition submitted by the Kingdom of Thailand. There is no evidence to indicate that the government acted with other than due diligence in either investigation. The third factor to be considered in the Barker analysis is the claimant’s assertion of his right to a judicial hearing. Claimants may generally trigger the rapid filing of a forfeiture action if such is their desire. All they need do is request referral of the matter to the United States Attorney for institution of such proceedings. In the instant case, however, claimant DeMassa waived such referral in writing, requesting instead that the case be handled administratively. There is no evidence that Valai Kraitamchitkul ever sought institution of judicial forfeiture. When DeMassa finally did request judicial forfeiture, the proceedings were commenced immediately. In light of this, the present assertion of unconstitutional delay in the filing of the judicial action is somewhat ironic. The final Barker factor is whether the delay has resulted in prejudice to the claimant, ' chiefly with regard to his ability to present a defense on the merits. In this case, claimants have asserted as prejudice the sole fact that they have been denied access to the seized currency for an extended period of time. In view of this Court’s ruling that the United States was entitled to confiscate the subject currency, this argument is rendered moot, see discussion infra. In any event, they have not demonstrated that their ability to challenge forfeiture on the merits has been affected by the denial of access. Thus, a review of the situation here in light of the Barker factors, as developed in $8,850, leads to the conclusion that the government’s delay in filing the judicial forfeiture action has not violated claimants’ due process rights. The length of the delay was substantial, but the United States diligently pursued an investigation of the matter throughout that period; the delay occurred in part because, at counsel’s request, the government postponed interviewing Kraitamchitkul; claimants initially waived the right to have the judicial forfeiture proceed expeditiously, thereby accounting for at least" }, { "docid": "21718724", "title": "", "text": "Thousand Eight Hundred and Fifty Dollars ($8,850), 461 U.S. 555, 103 S.Ct. 2005, 2012, 76 L.Ed.2d 143 (1983) the Supreme Court held that the balancing test of Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972) developed to determine when government delay has abridged the’ right to a speedy trial, provides the relevant framework for determining whether the delay in filing a forfeiture action was reasonable. The Barker test includes a weighing of four factors: length of delay,, the reason for the delay, the claimant’s assertion of his rights, and prejudice to the defendant. 407 U.S. at 530; $8,850, supra, 461 U.S. at-, 103 S.Ct. at 2012 (1983). Applying the Barker balancing factors to this case the focus is on the length of the delay. The claimants contend that the property was seized on August 16, 1979, and the forféiture proceeding was not brought until October 22, 1981, a delay of 26 months. In support of their position claimants cite five cases in which delays of 9 months to 22 months were fatal to the forfeiture. However,' these cases are distinguishable from the instant case in that in each case the seizure was originally made by the federal government (seizures by customs agents, government seizure under the Tariff Act, and seizure by the Bureau of Narcotics and Dangerous Drugs). The seizure here was by the municipal police and the items were held for about 25 months as evidence against the claimants. The district court found that the DEA took custody and control of the items on September 30 and October 1, 1981. We agree and conclude that there was a delay of only three weeks after the property was in the custody of the federal government. The second element to be considered is the reason for the delay.- Here, the property was being held as evidence in a pending criminal proceeding. In $8,850, supra, the Court said: Pending criminal proceedings present similar justifications for delay in instituting civil forfeiture proceedings. A prior or contemporaneous civil proceeding could substantially hamper the criminal proceeding, which — as here" }, { "docid": "10986667", "title": "", "text": "initiation of forfeiture proceedings] violated the due process right to be heard at a meaningful time.” 461 U.S. at 564, 103 S.Ct. at 2012. The Supreme Court set forth the Barker test as follows: The Barker test involves a weighing of four factors: length of delay, the reason for the delay, the defendant’s assertion of his right, and prejudice to the defendant. 461 U.S. at 564, 103 S.Ct. at 2012. The Supreme Court emphasized, however, that “due process is flexible and calls for such procedural protections as the particular situation demands.” 461 U.S. at 564, 103 S.Ct. at 2012, quoting Morrissey v. Brewer, 408 U.S. 471, 481, 92 S.Ct. 2593, 2600, 33 L.Ed.2d 484 (1972). The Supreme Court further stressed that: In applying the Barker balancing test ..., the overarching factor is the length of the delay. As we said in Barker, the length of the delay “is to some extent a triggering mechanism.” Ibid. Little can be said on when a delay becomes presumptively improper, for the determination necessarily depends on the facts of the particular case. Our inquiry is the constitutional one of due process; we are not establishing a statute of limitations. 461 U.S. at 565, 103 S.Ct at 2012. The Supreme Court then concluded that based on the facts presented, an eighteen month delay between the seizure of the currency by the United States Customs officials and filing civil forfeiture proceedings did not violate the claimant’s rights to due process of law. 461 U.S. at 569, 103 S.Ct. at 2014. As applied to the case at bar, the Court finds that, with respect to the activities of the United States Attorney relative to the seized funds, the rights of the defendant to due process of law have not been violated. Although the defendant implies that the length of delay to be charged against the Government in this action encompasses a period between the December 3, 1984 seizure of the funds and the December 16, 1985 issuance of an ex parte protective order authorizing the United States Marshal to take possession of the funds, the Court finds" }, { "docid": "23270689", "title": "", "text": "rather the question was whether the Government’s 18-month delay in bringing a forfeiture proceeding violated the claimant’s right to due process of law. The Court held that due process requires a postseizure determination within a reasonable time of the seizure. We concluded that the four-factor balancing test of Barker v. Wingo, 407 U. S. 514 (1972), provides the relevant framework for determining whether a delay was reasonable. The Barker test involves a weighing of four factors: the length of any delay, the reason for the delay, the defendant’s assertion of his right, and prejudice suffered by the defendant. Applying this test to the 18-month delay before it, the Court in $8,850 found no unreasonable delay, in part because a substantial portion of the delay in question was attributable to pending administrative and criminal proceedings. On remand in this case, the Court of Appeals recognized that $8,850 “presented a somewhat different issue from that arising in the instant case,” 729 F. 2d 657, 659 (1984), because $8,850 dealt with forfeiture rather than the remission procedure. Nevertheless, it concluded that this Court’s holding in $8,850 “reinforces our earlier view that due process rights attach to the processing of the petition for remission,” 729 F. 2d, at 660, and therefore reaffirmed its holding that “due process requires Customs to act promptly in ruling on petitions for remission or mitigation under 19 U. S. C. §1618.” Ibid. The court recognized that its earlier attempt to set specific time limits for the processing of remission petitions was “ill-advised,” ibid., and held instead that the Barker factors should also be applied to determine whether Customs has violated due process in delaying a response to a remission petition. The court accordingly remanded the case to the District Court to consider whether the 36-day delay violated due process. In addition, however, the court made clear its view that the circumstances of this case support a finding of a due process violation. Thus, the court noted that the propriety of the length of the delay may turn on the nature of the item that has been seized, and reemphasized" }, { "docid": "9654566", "title": "", "text": "in United States Currency, 461 U.S. 555, 564-65, 103 S.Ct. 2005, 2012, 76 L.Ed.2d 143 (1983). In determining whether the government brought the proceeding within a reasonable time, courts are to consider the following factors: “length of delay, the reason for the delay, the [claimant’s] assertion of his right, and prejudice to the [claimant].” Id. at 564, 103 S.Ct. at 2012. Considering these factors, we conclude that the delay was not unreasonable. Although Turner alleged the administrative forfeiture was void because of his lack of notice, Turner does not challenge that the government reasonably believed that the Corvette had been properly forfeited in the administrative action. Under the impression that the automobile had already been forfeited, the government had no reason to initiate judicial proceedings until Turner challenged the validity of the administrative forfeiture. The government proceeded to file this action without delay once Turner made his challenge. The delay was as much attributable to Turner’s decision to defer asserting his right to return of the vehicle until after the conclusion of the state proceedings as to the government. Additionally, Turner suffered no prejudice from delay. While under other circumstances a delay of 16 months might constitute an unreasonable delay, we find Turner’s right to due process was not violated. We conclude that the district court properly granted summary judgment to the government and affirm. AFFIRMED. . The district court properly concluded that James Spencer, although holding record title to the Corvette, had sold the Corvette to Turner and that Spencer consequently had no ownership interest sufficient to confer standing upon him. . The government argues that Turner is es-topped to contest the legality of the stop because this issue was previously resolved against him in the state action. The federal courts must \" ‘give preclusive effect to state-court judgments whenever the courts of the State from which the judgments emerged would do so.’ ” Haring v. Prosise, 462 U.S. 306, 313, 103 S.Ct. 2368, 2373, 76 L.Ed.2d 595 (1983) (quoting Allen v. McCurry, 449 U.S. 90, 96, 101 S.Ct. 411, 415, 66 L.Ed.2d 308 (1980)); see 28 U.S.C.A. §" }, { "docid": "22643232", "title": "", "text": "in which this Court can say that the government has not pursued their claim in all reasonable diligence.” App. 77. In sum, the Government’s diligent pursuit of pending administrative and criminal proceedings indicates strongly that the reasons for its delay in filing a civil forfeiture proceeding were substantial. The third element to be considered in the due process balance is the claimant’s assertion of the right to a judicial hear ing. A claimant is able to trigger rapid filing of a forfeiture action if he desires it. First, the claimant can file an equitable action seeking an order compelling the filing of the forfeiture action or return of the seized property. See Slocum, v. Mayberry, 2 Wheat. 1, 10 (1817) (Marshall, C. J.). Less formally, the claimant could simply request that the Customs Service refer the matter to the United States Attorney. If the claimant believes the initial seizure was improper, he could file a motion under Federal Rule of Criminal Procedure 41(e) for a return of the seized property. Yasquez did none of these things and only occasionally inquired about the result of the petition for mitigation or remission and asked that the Secretary reach a decision promptly. The failure to use these remedies can be taken as some indication that Yasquez did not desire an early judicial hearing. The final element is whether the claimant has been prejudiced by the delay. The primary inquiry here is whether the delay has hampered the claimant in presenting a defense on the merits, through, for example, the loss of witnesses or other important evidence. Such prejudice could be a weighty factor indicating that the delay was unreasonable. Here, Vasquez has never alleged or shown that the delay affected her ability to defend against the impropriety of the forfeiture on the merits. On the contrary, Vasquez conceded that the elements necessary for a forfeiture under § 1102(a) were present in her case. IV In this case, the balance of factors indicates that the Government’s delay in instituting civil forfeiture proceedings was reasonable. Although the 18-month delay was a substantial period of time," }, { "docid": "18680872", "title": "", "text": "76 L.Ed.2d 143 (1983) [$8,850], ruling that the appropriate test for determining whether delay in initiating judicial forfeiture proceedings constituted a due process violation was furnished by the earlier case of Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972). The Barker tests requires the Court to assess and consider four factors: (1) Length of delay; (2) Reason for the delay; (3) The [claimant’s] assertion of his right; and (4) Prejudice to the [claimant]. Id., 407 U.S. at 530, 92 S.Ct. at 2192; $8,850, supra, 103 S.Ct. at 2012. Applying these factors, the Court in $8,850 determined that an eighteen month delay, although “quite significant,” id., did not violate due process. Id., 103 S.Ct. at 2015. Two aspects of the situation in $8,850 recommended themselves to the Court as permissible reasons for delay, i.e., the initiation and determination of a petition for remission, and the subsequent pendency of criminal proceedings. The Court endorsed the District Court’s perception that the government had proceeded with “all due speed,” id., 103 S.Ct. at 2014. Finally, the Court relied on the claimant’s failure to request initiation of judicial proceedings, and her failure to make a showing of prejudice to her ability to challenge the propriety of the forfeiture on the merits. Id. In the present case the United States delayed approximately sixteen months before the commencement of judicial forfeiture proceedings. While shorter than the eighteen-month delay in $8,850, this period nonetheless appears quite substantial: the deprivation of funds over such a length of time, doubtless a significant burden to the rightful owner, must be well justified in order to survive a constitutional challenge. However, this first Barker factor — length of delay — is obviated in this case by a consideration of the second factor, the reason therefor. The government has provided the Court with several convincing explanations for the filing delay in this case. The criminal proceeding in Honolulu, in which DeMassa vigorously defended Kraitamchitkul, was pending for the first nine of the sixteen months. Though the pendency of a criminal action does not in itself justify the delay," }, { "docid": "10986666", "title": "", "text": "See United States v. $364,960.00, 661 F.2d at 326. 730 F.2d at 1439. See also, United States v. $4,255,000.00, 762 F.2d 895, 907 (11th Cir.1985). Mr. Kimbrough has failed to demonstrate the requisite “ownership or possessory interest” in the $11,400.00 seized from the defendant’s residence on December 3, 1984. The Court, therefore, will address those assertions which on the surface appear to be raised only by Mr. Kimbrough in his individual capacity as assertions raised on behalf of the defendant, Sam Draine. The Court finds the defendant’s assertion that the Government has abandoned its claim to the seized currency to be without merit. It is true that, in United States v. $8,850.00, 461 U.S. 555, 103 S.Ct. 2005, 76 L.Ed.2d 143 (1983), the Supreme Court held that the test developed in Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972) to determine when government delay has abridged the Sixth Amendment right to a speedy trial “provides an appropriate framework for determining whether [a delay between the seizure of property and the initiation of forfeiture proceedings] violated the due process right to be heard at a meaningful time.” 461 U.S. at 564, 103 S.Ct. at 2012. The Supreme Court set forth the Barker test as follows: The Barker test involves a weighing of four factors: length of delay, the reason for the delay, the defendant’s assertion of his right, and prejudice to the defendant. 461 U.S. at 564, 103 S.Ct. at 2012. The Supreme Court emphasized, however, that “due process is flexible and calls for such procedural protections as the particular situation demands.” 461 U.S. at 564, 103 S.Ct. at 2012, quoting Morrissey v. Brewer, 408 U.S. 471, 481, 92 S.Ct. 2593, 2600, 33 L.Ed.2d 484 (1972). The Supreme Court further stressed that: In applying the Barker balancing test ..., the overarching factor is the length of the delay. As we said in Barker, the length of the delay “is to some extent a triggering mechanism.” Ibid. Little can be said on when a delay becomes presumptively improper, for the determination necessarily depends on the facts of" }, { "docid": "8442943", "title": "", "text": "reversing, we also reject two other grounds which were originally urged by claimant in support of the district court’s judgment but which were not dealt with in our previous decision. In $8,850, the Supreme Court held that Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), supplied the appropriate test for determining whether delay in initiating judicial forfeiture proceedings violated due process. 103 S.Ct. at 2012. Barker requires a weighing' of four factors: the length of delay, the reason for the delay, the claimant’s assertion of his right, and prejudice to the claimant. Id. Applying these factors in $8,850, the Supreme Court held that an 18-month delay, “quite significant” in itself, did not violate due process. Id. The Court found to be weighty two reasons for delay: the initiation and determination of a petition for administrative remission, and the subsequent pendency of criminal proceedings. The Court was impressed with the district court’s assessment that the government had proceeded with “all due speed.” Id. 103 S.Ct. at 2014. The Court also relied on the fact that the claimant had never requested the institution of judicial proceedings, although she had requested a speedy determination of her petition for administrative remission. Finally, the Court noted that there was no showing of prejudice to the claimant in that she had not shown that “the delay affected her ability to defend the propriety of the forfeiture on the merits.” Id. In the present case the delay in instituting judicial forfeiture proceedings was approximately 14 months. The government’s reasons for the major part of this delay were the pendency of a petition for administrative remission and the pendency of a criminal investigation. Claimant did not request the institution of judicial forfeiture proceedings and, indeed, petitioned for administrative remission after being advised that such a petition constituted a request that judicial proceedings be delayed. We originally held that neither the pendency of the administrative and criminal proceedings nor the behavior of the claimant justified the delay in initiating the forfeiture action. We also held that no showing of prejudice to the claimant was" }, { "docid": "23278029", "title": "", "text": "of civil forfeiture proceedings for eighteen months. In the Supreme Court, the claimant argued that the eighteen month delay between seizure and the civil forfeiture trial violated her due process right to have a meaningful hearing at a meaningful time. Id. at 562-3, 103 S.Ct. at 2010-11; see Armstrong v. Manzo, 380 U.S. 545, 552, 85 S.Ct. 1187, 1191, 14 L.Ed.2d 62 (1965). The Court analyzed the claim by applying the test of Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), which assesses when a delay in trying a criminal case violates the Sixth Amendment. The Barker test involves a weighing of four factors: The length of delay, the reason for the delay, the defendant’s assertion of his right, and prejudice to the defendant. Id. at 530, 92 S.Ct. at 2191. The Court described the appropriateness of the test in the forfeiture context as follows: Of course, Barker dealt with the Sixth Amendment right to a speedy trial rather than the Fifth Amendment right against deprivation of property without due process of law. Nevertheless, the Fifth Amendment claim here—which challenges only the length of time between the seizure and the initiation of the forfeiture trial—mirrors the concern of undue delay encompassed in the right to a speedy trial. The Barker balancing inquiry provides an appropriate framework for determining whether the delay here violated the due process right to be heard at a meaningful time. United States v. $8,850, 461 U.S. at 564, 103 S.Ct. at 2012. In applying Barker, the Court held that the eighteen month delay did not violate due process. Id. at 569-70, 103 S.Ct. at 2014-15. While the delay was significant, the government had valid justifications, and no evidence existed that the claimant had asserted her right to an early forfeiture trial as permitted by the relevant statute. Moreover, in assessing the prejudice element in Barker, the Court stated that its inquiry focussed on whether the delay had hampered the claimant’s defense on the merits. Id. at 569, 103 S.Ct. at 2014. Finding no prejudice, and in light of the other factors," }, { "docid": "2424243", "title": "", "text": "under § 455. See Barnes v. United States, 241 F.2d 252, 254 (9th Cir.1956). The district court did not abuse its discretion in denying the motion for recusal. B. Due Process Claims Robinson contends that his right to due process was violated because the Government failed to: (1) establish probable cause for the seizure; (2) provide him with timely notice of the seizure; and (3) timely commence forfeiture proceedings. The challenge to the magistrate’s finding of probable cause to issue the seizure warrants for the defendant funds is raised for the first time on appeal and will therefore not be considered. See United States v. Flores-Payon, 942 F.2d 556, 558 (9th Cir.1991). The issue of timeliness of the notice of seizure is also raised for the first time on appeal. Robinson apparently complained generally of a lack of timely notice in several of his pleadings, but never framed it as an issue in the case and neither the Government nor the district court addressed the question. On appeal, however, Robinson admits that he received notice of the forfeiture. So even liberally construing Robinson’s pleadings in the district court as having raised this issue, we reject his notice argument as a ground for relief. Robinson moved to dismiss the complaint on the basis of unreasonable delay in the filing of the forfeiture complaint. The district court correctly found that the thirty-month delay between seizure of the funds and initiation of forfeiture proceedings, although lengthy, was not unreasonable and did not offend due process. The court evaluated the delay under the four-part analysis for timeliness: (1) the length of the delay; (2) the Government’s reason for the delay; (3) the claimant’s assertion of the right to a hearing; and (4) whether the delay prejudiced the claimant’s interest. United States v. Eight Thousand Eight Hundred and Fifty Dollars ($8,850) in U.S. Currency, 461 U.S. 555, 565-69, 103 S.Ct. 2005, 2012-14, 76 L.Ed.2d 143 (1983). The district court agreed that the length of the delay was' not unreasonable given the “unique and complex history of both the forfeiture action and the underlying criminal activity.”" }, { "docid": "2424244", "title": "", "text": "of the forfeiture. So even liberally construing Robinson’s pleadings in the district court as having raised this issue, we reject his notice argument as a ground for relief. Robinson moved to dismiss the complaint on the basis of unreasonable delay in the filing of the forfeiture complaint. The district court correctly found that the thirty-month delay between seizure of the funds and initiation of forfeiture proceedings, although lengthy, was not unreasonable and did not offend due process. The court evaluated the delay under the four-part analysis for timeliness: (1) the length of the delay; (2) the Government’s reason for the delay; (3) the claimant’s assertion of the right to a hearing; and (4) whether the delay prejudiced the claimant’s interest. United States v. Eight Thousand Eight Hundred and Fifty Dollars ($8,850) in U.S. Currency, 461 U.S. 555, 565-69, 103 S.Ct. 2005, 2012-14, 76 L.Ed.2d 143 (1983). The district court agreed that the length of the delay was' not unreasonable given the “unique and complex history of both the forfeiture action and the underlying criminal activity.” The court observed that Robinson failed, to request commencement of judicial forfeiture proceedings for almost one and a half years after the seizure of the currency. A party’s failure to timely exercise his rights to a judicial forfeiture proceeding is a significant factor in determining whether any delay in commencing those proceedings was violative of due process. $874,938.00 U.S. Currency, 999 F.2d at 1326. Finally, the district court found the delay did not prejudice Robinson’s ability to defend against the impropriety of the forfeiture on the merits. The court also noted that defendant funds were subject to an IRS notice of deficiency in any event, further mitigating any prejudice to Robinson. Under the circumstances, the district court properly held that the delay in commencing the civil forfeiture proceedings in this case was not unreasonable. C. The Grant of Summary Judgment Robinson contends that the district court erred in granting the Government summary judgment. The Government’s evidence demonstrated that three bearer checks, each worth over $10,000 and bearing a Luxembourg fiduciary’s personalized confirmation signature, were issued" }, { "docid": "11839643", "title": "", "text": "parties further stipulated that there were only two legal issues before the court: (1) assuming a seizure in November 1980, whether the Government was justified in postponing the filing of the civil forfeiture action until January 1982; and (2) assuming a seizure in November 1980, and further assuming the delay was unjustified, whether the claimant must show he has suffered prejudice by reason of delay. The trial court entered judgment for the Government. Sun Bank appealed. We affirm the district court’s decision that a fourteen-month delay in the bringing of the forfeiture action by the Government in this case was not unjustifiable. Thus there was no violation of Sun Bank’s right to due process, and it is unnecessary to decide whether there was a seizure in November 1980, or whether the claimant would have had to show prejudice if the delay was unjustified. The district court correctly applied the four factor balancing test adopted by the Supreme Court in United States v. Eight Thousand Eight Hundred and Fifty Dollars ($8,850), 461 U.S. 555, 103 S.Ct. 2005, 76 L.Ed.2d 143 (1983). There the Supreme Court determined that the balancing test applicable to speedy trial claims in Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), provides “an appropriate framework for determining whether the delay here violated the due process right to be heard at a meaningful time.” 461 U.S. at 564, 103 S.Ct. at 2012, 76 L.Ed.2d at 152. The Barker test involves a weighing of four factors: the length of the delay, the reason for the delay, the claimant’s assertion of his right, and prejudice to the claimant. Id. These factors “are guides in balancing the interests of the claimant and the government to assess whether the basic due process requirement of fairness has been satisfied in a particular case.” Id. The district court balanced these factors and found in favor of the Government. The Government is willing to assume, for purposes of argument, that a fourteen-month delay is sufficient to trigger further inquiry into the other Barker factors. The second factor is the reason the" }, { "docid": "11839644", "title": "", "text": "2005, 76 L.Ed.2d 143 (1983). There the Supreme Court determined that the balancing test applicable to speedy trial claims in Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), provides “an appropriate framework for determining whether the delay here violated the due process right to be heard at a meaningful time.” 461 U.S. at 564, 103 S.Ct. at 2012, 76 L.Ed.2d at 152. The Barker test involves a weighing of four factors: the length of the delay, the reason for the delay, the claimant’s assertion of his right, and prejudice to the claimant. Id. These factors “are guides in balancing the interests of the claimant and the government to assess whether the basic due process requirement of fairness has been satisfied in a particular case.” Id. The district court balanced these factors and found in favor of the Government. The Government is willing to assume, for purposes of argument, that a fourteen-month delay is sufficient to trigger further inquiry into the other Barker factors. The second factor is the reason the Government assigns to justify the delay. In United States v. $8,850, the Supreme Court held that diligent pursuit of pending criminal proceedings presents strong reasons for delay in instituting civil forfeiture proceedings. The district court determined that these considerations were significant in this case. The court noted the period between November 1980 and January 1982 was consumed with conducting a massive criminal investigation and prosecution of the very criminal activity that generated the funds. Moreover, there is nothing to indicate that the Government’s investigation and subsequent criminal case was not pursued with diligence. In fact, considering the scope and nature of the criminal charges it was apparent that the investigation and prosecution proceeded quite rapidly. Moreover, the district court found that a contemporaneous civil proceeding would have provided improper opportunities to discover the details of the Government’s criminal case. Although Sun Bank relies on the testimony of a federal agent to the effect that a contemporaneous civil forfeiture action would not have affected the criminal investigation, the district court’s finding on this issue is supported" }, { "docid": "7552855", "title": "", "text": "its actual transfer to the fictitious client were central to the intended tax fraud. The district court determined from the stipulated facts that the automobile, inasmuch as it was the subject of an intended illegal tax fraud, was used as an active aid in the backdating tax shelter scheme. This factual determination, far from being erroneous, is amply supported by the record. B. Delay in Instituting the Forfeiture Proceedings Claimant also argues that forfeiture should not have been granted because the seven month, eight day time lapse between seizure of the automobile and commencement of the forfeiture action denied claimant due process of law. The district court decided that claimant’s due process was not violated by the delays. This type of decision involves a question of law and is reviewed de novo. United States v. McConney, 728 F.2d 1195, 1201 (9th Cir.) (en banc), cert. denied, — U.S. —, 105 S.Ct. 101, 83 L.Ed.2d 46 (1984). In light of United States v. Eight Thousand Eight Hundred Fifty Dollars ($8,850) in United States Currency, 461 U.S. 555, 103 S.Ct. 2005, 76 L.Ed.2d 143 (1983) (“8,850”), claimant’s contention must be rejected. In $8,850, the Supreme Court held that Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), supplied the appropriate test lor determining whether delay in initiating judicial forfeiture proceedings violated due process. 461 U.S. at 564, 103 S.Ct. 2012. Barker requires a weighing of four factors: the length of delay, the reason for the delay, the claimant’s assertion of his right, and prejudice to the claimant. Id. The Supreme Court stated that “none of these factors is a necessary or sufficient condition for finding unreasonable delay. Rather, these elements are guides in balancing the interests of the claimant and the Government to assess whether the basic due process requirement of fairness has been satisfied in a particular case.” Id. at 565, 103 S.Ct. at 2012-13 (footnote omitted). Applying these factors in $8,850, the Supreme Court held that an eighteen-month delay, “quite significant” in itself, did not violate due process. Id. Applying these factors to the instant case," } ]

[ { "docid": "14218415", "title": "", "text": "the United States,” 28 U.S.C. § 2254(d)(1), “or was based on an unreasonable determination of the facts” in light of the state court record. 28 U.S.C. § 2254(d)(2). Because the present matter involves allegations of ineffective assistance of counsel our analysis centers on § 2254(d)(1). Gregory v. Thaler, 601 F.3d 347, 351 (5th Cir.2010) (“Claims of ineffective assistance of counsel involve mixed questions of law and fact and are governed by § 2254(d)(1).”). A state court’s decision is contrary to clearly established Supreme Court precedent when it “relies on legal rules that directly conflict with prior holdings of the Supreme Court or if it reaches a different conclusion than the Supreme Court on materially indistinguishable facts.” Busby v. Dretke, 359 F.3d 708, 713 (5th Cir.2004). Under § 2254(d)(1), “ ‘an unreasonable application of federal law is different from an incorrect application of federal law.’ ” Harrington v. Richter, — U.S. -, 131 S.Ct. 770, 785, 178 L.Ed.2d 624 (2011) (quoting Williams v. Taylor, 529 U.S. 362, 410, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000)). An unreasonable application of clearly established federal law “identifies the correct governing legal principle from [the Supreme Court’s] decisions but unreasonably applies that principle to the facts” of a case. Williams v. Taylor, 529 U.S. 362, 413, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). Thus, a state court’s application of federal law may be considered reasonable even when the state court has erroneously interpreted or applied Supreme Court precedent. In reviewing the state court’s denial of habeas relief, “we examine factual findings for clear error,” and review de novo “questions of law and mixed questions of law and fact.” Gregory, 601 F.3d at 352. The state court’s factual determinations are “presumed to be correct” and the petitioner must rebut this presumption with “clear and convincing evidence.” Wesbrook v. Thaler, 585 F.3d 245, 251 (5th Cir.2009) (citing 28 U.S.C. § 2254(e)(1)). Ill The State contends that the district court erred by concluding it was not constrained by 28 U.S.C. § 2254(e)(2) and could conduct an evidentiary hearing to develop the factual basis of Pape’s claim. The State" } ]

[ { "docid": "14313173", "title": "", "text": "clearly established Federal law, as determined by the Supreme Court of the United States[.]” 28 U.S.C. § 2254(d)(1). “A decision is contrary to clearly established federal law ‘if the state court arrives at a conclusion opposite to that reached by [the Supreme Court] on a question of law or if the state court decides a case differently than [the] Court has on a set of materially indistinguishable facts.’ ” Gardner v. Johnson, 247 F.3d 551, 557 (5th Cir.2001) (alterations in original) (quoting Williams v. Taylor, 529 U.S. 362, 413, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000)). “ ‘[I]f the state court identifies the correct governing legal principle ... but unreasonably applies the principle to the facts of the prisoner’s case[,]’ ” the court’s decision represents an unreasonable application of federal law. Id. (quoting Williams, 529 U.S. at 413, 120 S.Ct. 1495). We presume that a state court’s factual findings are correct and defer to them “unless they were based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” Id. (internal quotation marks and citation omitted); 28 U.S.C. § 2254(d)(2). II. Due Process: Fair Tribunal While this case involves novel yet disturbing facts, the fundamental underlying policies and law that these facts implicate are much less unique. Stated succinctly, the cornerstone of the American judicial system is the right to a fair and impartial process. See, e.g., Bracy v. Gramley, 520 U.S. 899, 117 S.Ct. 1793, 138 L.Ed.2d 97 (1997). Therefore, any judicial officer incapable of presiding in such a manner violates the due process rights of the party who suffers the resulting effects of that judicial officer’s bias. See id. “[T]he Due Process Clause of the Fourteenth Amendment establishes a constitutional floor, [however,] not a uniform standard.” Id. at 904, 117 S.Ct. 1793. This floor “clearly requires a ‘fair trial in a fair tribunal,’ before a judge with no actual bias against the defendant or interest in the outcome of his particular case.” Id. at 905, 117 S.Ct. 1793 (citation omitted). The crux of Bigby’s habeas corpus complaint is that his" }, { "docid": "10692317", "title": "", "text": "might agree, after the COA has been granted and the case has received full consideration, that petitioner will not prevail.”); Hernandez v. Johnson, 213 F.3d 243, 248 (5th Cir.2000) (stating that the court resolves doubts in petitioner’s favor in death penalty cases). II Under AEDPA, Petitioner is not entitled to federal habeas relief unless the state court’s adjudication of his Brady claim (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding. 28 U.S.C. § 2254(d). Section 2254(d)(1) applies to pure questions of law as well as mixed questions of law and fact. Martin v. Cain, 246 F.3d 471, 475 (5th Cir.2001). A decision is “contrary to” clearly established federal law “if the state court arrives at a conclusion opposite to that reached by th[e Supreme] Court on a question of law or if the state court decides a case differently than th[e Supreme] Court has on a set of materially indistinguishable facts.” Williams v. Taylor, 529 U.S. 362, 412-13, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). A decision involves an “unreasonable application of’ clearly established federal law “if the state court identifies the correct governing legal principle from th[e] Court’s decisions but unreasonably applies that principle to the facts of the prisoner’s case.” Id. at 413, 120 S.Ct. 1495. Section 2254(d)(2) applies to questions of fact. Martin, 246 F.3d at 475. Under § 2254(d)(2), federal courts “give deference to the state court’s findings unless they were based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding.” Chambers v. Johnson, 218 F.3d 360, 363 (5th Cir.2000) (internal quotation omitted). Factual determinations by the state court are presumptively correct and will not be disturbed unless rebutted by clear and convincing evidence under § 2254(e)(1). Morris v. Cain, 186 F.3d 581, 584 (5th Cir.1999). Petitioner argues that" }, { "docid": "958461", "title": "", "text": "opposite to that reached by [the Supreme Court] on a question of law or if the state court decide[d] a case differently than [the Supreme Court] has on a set of materially indistinguishable facts.” Williams v. Taylor, 529 U.S. 362, 413, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). Absent a direct conflict with Supreme Court authority, habeas relief is available only if the state court decision is factually or legally unreasonable in light of the evidence present in the state court proceeding. Montoya v. Johnson, 226 F.3d 399, 404 (5th Cir.2000). Notwithstanding, an unreasonable application of federal law is not the equivalent of an incorrect application of federal law. Williams v. Taylor, 529 U.S. 362, 412, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). Indeed, a federal writ may not issue merely because the state court incorrectly applied federal law; the application must also be unreasonable. Id. at 411, 120 S.Ct. 1495. An unreasonable application occurs “if the state court identifies the correct governing legal principles from [the Supreme Court’s] decision, but unreasonably applies that principle to the facts of the [petitioner] prisoner’s case.” Id. In the instant case, our focus is on the third step of the Batson inquiry, the court’s determination as to whether the defendant carried his burden of proving purposeful discrimination. This determination is a question of fact. United States v. Kelley, 140 F.3d 596, 606 (5th Cir.1998) (“The district court’s determination that a party has used peremptory strikes in a discriminatory manner is a finding of fact and thus cannot be overturned by this Court absent clear error.”). Accordingly, Moody is only entitled to relief if the state court’s determination constituted “an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d). B. Equal Protection Under Batson The Supreme Court has long since made clear that the Equal Protection Clause of the Fourteenth Amendment prohibits prosecutors from striking prospective jurors solely on the basis of race. Batson v. Kentucky, 476 U.S. 79, 89, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986); accord United States v. Webster, 162" }, { "docid": "1912054", "title": "", "text": "Court of the United States .... . At the time Tucker filed his brief, we had rejected this argument. See Hughes v. Johnson, 191 F.3d 607, 612 (5th Cir.1999). . 97 F.3d at 769. . More specifically, under the AEDPA, this Court: must defer to the state court unless its decision \"was contrary to, or involved an unreasonable application of clearly established Federal law, as determined by the Supreme Court of the United States.” 28 U.S.C. § 2254(d)(1). A decision is contrary to clearly established Federal law \"if the state court arrives at a conclusion opposite to that reached by [the Supreme Court] on a question of law or if the state court decides a case differently than [the] Court has on a set of materially indistinguishable facts.” Williams v. Taylor, 529 U.S. 362, 120 S.Ct. 1495, 1523, 146 L.Ed.2d 389 (2000). Under § 2254(d)(l)’s \"unreasonable application” language, a writ may issue \"if the state court identifies the correct governing legal principle from [the] Court’s decisions but unreasonably applies that principle to the facts of the prisoner’s case.” Williams, 120 S.Ct. at 1523. Factual findings are presumed to be correct, see 28 U.S.C. § 2254(e)(1), and we will give deference to the state court’s decision unless it “was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” Id.; § 2254(d)(2). Hill v. Johnson, 210 F.3d 481, 485 (5th Cir.2000). . In the alternative, Tucker argues that the AEDPA should not apply to his petition because he sought counsel in federal court prior to the enactment of the AEDPA. During Tucker's previous federal habeas proceeding, the district court appointed counsel but limited the scope of counsel’s representation to issues that had been exhausted in state court. Tucker appealed the district court’s interlocutory order, and we dismissed the habeas proceeding without prejudice in order to allow him to exhaust his state remedies. See Tucker, 66 F.3d 1418. Tucker concedes that this Court has declined to accept a \"similar argument.” In Graham v. Johnson, 168 F.3d 762, 775-88 (5th Cir.1999), we rejected the" }, { "docid": "21755424", "title": "", "text": "are generally subject to two different frameworks of review, depending upon whether the state courts addressed the merits of the claim for relief. If the state courts have not heard the claim on its merits, we review the district court’s legal conclusions de novo and its factual findings, if any, for clear error. If the state courts have addressed the claim on its merits, we review the state court ruling under the standard enunciated under 28 U.S.C. § 2254. Hale v. Gibson, 227 F.3d 1298, 1309 (10th Cir.2000) (quoting Smallwood v. Gibson, 191 F.3d 1257, 1264 (10th Cir.1999)). After AEDPA, a federal court may not grant habeas relief on a claim adjudicated on the merits in state court unless the state court decision “was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court,” 28 U.S.C. § 2254(d)(1), or “was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding,” id. § 2254(d)(2). State court fact findings are presumed correct unless the petitioner rebuts them by clear and convincing evidence. Hale, 227 F.3d at 1309; see also 28 U.S.C. § 2254(e)(1). A state court decision is contrary to clearly established federal law under section 2254(d)(1) “if the state court arrives at a conclusion opposite to that reached by [the Supreme Court] on a question of law or if the state court decides a case differently than [the Supreme Court] has on a set of materially indistinguishable facts.” Williams v. Taylor, 529 U.S. 362, 412-13, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). A state court decision is an unreasonable application of federal law under section 2254(d)(2) “if the state court identifies the correct governing legal principle from [the Supreme Court’s] decisions but unreasonably applies that principle to the facts of the prisoner’s case.” Id. at at 413, 120 S.Ct. 1495. The reasonableness of the state court’s application of federal law is to be evaluated by an objective standard. See id. at 409-10, 120 S.Ct. 1495. The Supreme Court has cautioned' “that an unreasonable application" }, { "docid": "20641510", "title": "", "text": "light of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d)(1); Williams v. Taylor, 529 U.S. 362, 402-13, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). A state court’s decision is “contrary to” clearly established federal law if (1) the state court “applies a rule that contradicts the governing law” announced in Supreme Court cases, or (2) the state court decides a case differently than the Supreme Court did on a set of materially indistinguishable facts. Mitchell v. Esparza, 540 U.S. 12, 15-16, 124 S.Ct. 7, 157 L.Ed.2d 263 (2003) (internal quotation marks omitted). A state court’s application of clearly established federal law is “unreasonable” within the meaning of AEDPA when the state court identifies the correct governing legal principle from Supreme Court precedent, but applies that principle to the case in an objectively unreasonable manner. Wiggins v. Smith, 539 U.S. 510, 520, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003). A writ of habeas corpus may also issue if the state court’s adjudication of a claim “resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d)(2). Under AEDPA, a state court’s factual findings are “presumed to be correct” unless the habeas petitioner rebuts the presumption through “clear and convincing evidence.” Id. § 2254(e)(1); Miller v. Johnson, 200 F.3d 274, 281 (5th Cir.2000). We review the district court’s conclusions of law regarding the state court’s application of federal law de novo, and we review the district court’s findings of fact, if any, for clear error. Collier v. Cockrell, 300 F.3d 577, 582 (5th Cir.2002). B. Clearly Established Federal Ldtu Under AEDPA, our duty is to determine whether the state court’s determination was contrary to or an unreasonable application of clearly established federal law as determined by the Supreme Court at the time that Nelson’s conviction became final in 1994. See Williams, 529 U.S. at 405, 120 S.Ct. 1495. In Tennard and Smith v. Texas, two recent cases involving Penry claims, the Supreme Court unequivocally stated that the relevant inquiry under" }, { "docid": "18153781", "title": "", "text": "as the district court.” Thompson v. Cain, 161 F.3d 802, 805 (5th Cir.1998). Because Coble filed his federal habeas petition after the effective date of the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), the district court’s federal ha-beas review was governed by AEDPA. Under AEDPA, habeas relief is not available to a state prisoner 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. 28 U.S.C. § 2254(d). A state court decision is “contrary to ... clearly established Federal law, as determined by the Supreme Court” if: (1) “the state court applies a rule that contradicts the governing law set forth in [the Supreme Court’s] cases,” or (2) “the state court confronts a set of facts that are materially indistinguishable from a decision of [the Supreme] Court and nevertheless arrives at a result different from [Supreme Court] precedent.” Williams v. Taylor, 529 U.S. 362, 406, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). A state court decision is an unreasonable application of clearly established Supreme Court precedent if the state court “correctly identifies the governing legal rule but applies it unreasonably to the facts of a particular prisoner’s case.” Id. at 407-08, 120 S.Ct. 1495. The inquiry into unreasonableness is objective. Id. at 409-10, 120 S.Ct. 1495. A state court’s incorrect application of clearly established Supreme Court precedent is not enough to warrant federal habeas relief; in addition, such an application must also be unreasonable. Id. at 410-12, 120 S.Ct. 1495. The state court’s factual findings are presumed to be correct, and the habeas petitioner has the burden of rebutting that presumption by clear and convincing evidence. 28 U.S.C. § 2254(e)(1). Ill Coble makes multiple ineffective assistance of counsel arguments. These claims" }, { "docid": "14313172", "title": "", "text": "death penalty, any doubts as to whether a COA should [be] issue[d] must be resolved in [the petitioner’s] favor.” Hernandez v. Johnson, 213 F.3d 243, 248 (5th Cir.2000). When determining if a petitioner is entitled to a COA, we must apply the “deference scheme laid out in 28 U.S.C. § 2254(d).” Moore, 225 F.3d at 501. Under this scheme, “we review pure questions of law and mixed questions of law and fact under § 2254(d)(1), and review questions of fact under § 2254(d)(2), provided that the state court adjudicated the claim on the merits.” Id. at 501 (citation omitted). Because Bigby’s federal petition for habeas review was filed in 1998, we review it under the standards articulated in-the Antiterrorism and Effective Death Penalty. Act (“AEDPA”). See 28 U.S.C. § 2254. Under that statute, a federal court may only grant a state prisoner’s application for a writ of habeas corpus if his incarceration was the product of a state court adjudication that “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[.]” 28 U.S.C. § 2254(d)(1). “A decision is contrary to clearly established federal law ‘if the state court arrives at a conclusion opposite to that reached by [the Supreme Court] on a question of law or if the state court decides a case differently than [the] Court has on a set of materially indistinguishable facts.’ ” Gardner v. Johnson, 247 F.3d 551, 557 (5th Cir.2001) (alterations in original) (quoting Williams v. Taylor, 529 U.S. 362, 413, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000)). “ ‘[I]f the state court identifies the correct governing legal principle ... but unreasonably applies the principle to the facts of the prisoner’s case[,]’ ” the court’s decision represents an unreasonable application of federal law. Id. (quoting Williams, 529 U.S. at 413, 120 S.Ct. 1495). We presume that a state court’s factual findings are correct and defer to them “unless they were based on an unreasonable determination of the facts in light of the evidence presented in the State" }, { "docid": "21443027", "title": "", "text": "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. 28 U.S.C. § 2254(d). “Under AEDPA, our duty is to determine whether the state court’s determination was contrary to or an unreasonable application of clearly established federal law as determined by the Supreme Court at the time that [Ries’s] conviction became final” in 2002. Nelson v. Quarterman, 472 F.3d 287, 293 (5th Cir.2006) (en banc) (citing Williams v. Taylor, 529 U.S. 362, 405, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000)); Peterson v. Cain, 302 F.3d 508, 511 (5th Cir.2002) (“[F]ederal habeas courts must deny relief that is contingent upon a rule of law not clearly established at the time the state conviction becomes final.”). A state court decision is contrary to clearly established Supreme Court precedent if: (1) “the state court applies a rule that contradicts the governing law set forth in [the Supreme Court’s] cases,” or (2) “the state court confronts a set of facts that are materially indistinguishable from a decision of [the Supreme] Court and nevertheless arrives at a result different from [Supreme Court] precedent.” Williams, 529 U.S. at 405-06, 120 S.Ct. 1495. A state court decision is an unreasonable application of clearly established Supreme Court precedent if the state court “correctly identifies the governing legal rule but applies it unreasonably to the facts of a particular prisoner’s case.” Id. at 407-08, 120 S.Ct. 1495. The inquiry into unreasonableness is objective. Id. at 409-10, 120 S.Ct. 1495. A state court’s incorrect application of clearly established Supreme Court precedent is not enough to warrant federal habeas relief; such an application must also be unreasonable. Id. at 410-12, 120 S.Ct. 1495. The state court’s factual findings are presumed to be correct, and the habeas petitioner has the burden of" }, { "docid": "16722897", "title": "", "text": "to warrant the issuance of the certificate. See Lamb, 179 F.3d at 356. Nevertheless, doubts regarding the propriety of issuing the certificate should be resolved in favor of the petitioner. Id. Section 2254(d), as amended by AEDPA, provides that: (d) 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. “Section 2254(d)(1) provides the standard of review for questions of law and mixed questions of law and fact.” Caldwell v. Johnson, 226 F.3d 367, 372 (5th Cir.2000). The court may grant habeas relief under the “unreasonable application” clause “if the state court identifies the correct governing legal principle but applies it incorrectly, or expands a legal principle to an area outside the scope intended by the Supreme Court.”' Id. Furthermore, the state court’s application “must be ‘unreasonable’ in addition to being merely ‘incorrect.’ ” Id. In other words, the appropriate inquiry is “ 'whether the state court’s application of clearly established federal law was objectively unreasonable.’ ” Id. (quoting Williams v. Taylor, 529 U.S. 362, 409, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000)). With respect to the “contrary to” clause of § 2254(d)(1), “a federal court may grant the writ if the state court has arrived at a conclusion opposite to that reached by the Supreme Court on a question of law, or if the state court decides the case differently than the Supreme Court on a set of materially indistinguishable facts.” Id. This Court reviews a district court’s grant of summary judgment in a habeas proceeding de novo. See Soffar v. Johnson, 237 F.3d 411," }, { "docid": "6494239", "title": "", "text": "of the accompanying judgment. Respondent appeals. II. Standards of Review A. Merits Our review is governed by the Antiter-rorism and Effective Death Penalty Act of 1996, Pub.L. No. 104-132, 110 Stat. 1214 (1996) (“AEDPA”). See Lindh v. Murphy, 521 U.S. 320, 326-27, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997). Under the AEDPA, 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 Court,” 28 U.S.C. § 2254(d)(1) (1994 & Supp. VII), or (2) the state court’s decision “was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceedings.” Id. § 2254(d)(2). A state court’s legal decision is “contrary to” clearly established federal law under § 2254(d)(1) “if the court arrives at a conclusion opposite to that reached by [the Supreme] Court on a question of law or if the state court decides a case differently than [the Supreme] Court on a set of materially indistinguishable facts.” Williams v. Taylor, 529 U.S. 362, 412-13, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). An “unreasonable application” occurs when “the state court identified the correct legal principle from [the Supreme] Court’s decisions but unreasonably applies that principle to the facts of the prisoner’s case.” Id. Under this standard, a state court decision is not unreasonable simply because the federal court concludes that the state decision is erroneous or incorrect. Id. at 411, 120 S.Ct. 1495. Rather, the federal court must determine that the state court decision is an objectively unreasonable application of federal law. Id. at 410-12., 120 S.Ct. 1495 Factual findings by state courts are presumed correct. 28 U.S.C. § 2254(e)(1). We review the district court’s grant of a writ of habeas corpus de novo. Sanford v. Yukins, 288 F.3d 855, 858-59 (6th Cir.2002); Northrop v. Trippett, 265 F.3d 372, 376 (6th Cir.2001), cert. denied, — U.S. -, 122 S.Ct. 1358, 152 L.Ed.2d 354 (2002). We" }, { "docid": "5214311", "title": "", "text": "facts in light of the evidence presented in the State court proceeding. Section 2254(d) creates a “ ‘highly deferential standard for evaluating state-court rulings,’ which demands that state-court decisions be given the benefit of the doubt.” Woodford v. Visciotti, 537 U.S. 19, 24, 123 S.Ct. 357, 154 L.Ed.2d 279 (2002) (quoting Lindh v. Murphy, 521 U.S. 320, 333 n. 7, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997)). A state-court decision is contrary to clearly established federal law only “if the state court arrives at a conclusion opposite to that reached by [the Supreme Court] on a question of law or if the state court decides a case differently than [the Supreme Court] has on a set of materially indistinguishable facts.” Williams v. Taylor, 529 U.S. 362, 413, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000); Brown v. Palmer, 441 F.3d 347, 350 (6th Cir.2006) (quoting Williams). “Under the ‘unreasonable application’ clause, a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from [Supreme Court] decisions but unreasonably applies that principle to the facts of the prisoner’s case.” Williams, 529 U.S. at 413, 120 S.Ct. 1495. “[A] federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable.” Id, at 411, 120 S.Ct. 1495. In addition, the factual findings of the state court are presumed correct unless the petitioner presents clear and convincing evidence to the contrary. 28 U.S.C. § 2254(e)(1). “[A] decision adjudicated on the merits in a state court and based on a factual determination will not be overturned on factual grounds unless objectively unreasonable in light of the evidence presented in the state-court proceeding.” Ayers v. Hudson, 623 F.3d 301, 308 (6th Cir.2010) (brackets omitted) (quoting Miller-El v. Cockrell, 537 U.S. 322, 340, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003)). Under AEDPA, we review the last state-court decision to reach the merits of the particular claims being considered. Johnson v. Bagley, 544 F.3d 592, 599" }, { "docid": "6275443", "title": "", "text": "proceed further.” Moore v. Johnson, 225 F.3d 495, 500 (5th Cir.2000), cert. denied, 532 U.S. 949, 121 S.Ct. 1420, 149 L.Ed.2d 360 (2001), quoting Slack v. McDaniel, 529 U.S. 473, 483, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000). In assessing whether a petitioner has demonstrated a substantial showing of the denial of a constitutional right, we must keep in mind the deference scheme laid out in 28 U.S.C. § 2254(d). See Moore, 225 F.3d at 501. 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. 28 U.S.C. § 2254(d). “Section 2254(d)(1) provides the standard of review for questions of law and mixed questions of law and fact.” Caldwell v. Johnson, 226 F.3d 367, 372 (5th Cir.2000). The court may grant habeas relief under the “unreasonable application” clause “if the state court identifies the correct governing legal principle but applies it incorrectly, or expands a legal principle to an area outside the scope intended by the Supreme Court.” Id. Furthermore, the state court’s application “must be ‘unreasonable’ in addition to being merely ‘incorrect.’ ” Id. In other words, the appropriate inquiry is “ ‘whether the state court’s application of clearly established federal law was objectively unreasonable.’” Id. (quoting Williams v. Taylor, 529 U.S. 362, 409, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000)). With respect to the “contrary to” clause of § 2254(d)(1), “a federal court may grant the writ if the state court has arrived at a conclusion opposite to that reached by the Supreme Court on a question of law, or if the state court" }, { "docid": "16269618", "title": "", "text": "OF REVIEW We review the district court’s legal conclusions de novo and its factual findings for clear error. Ladd v. Cockrell, 311 F.3d 349, 351 (5th Cir.2002). Simmons filed his federal habeas petition after 1996, so the Anti-Terrorism and Effective Death Penalty Act (“AEDPA”) applies to his claims. See Cantu v. Thaler, 632 F.3d 157, 162 (5th Cir.2011) (citing Lindh v. Murphy, 521 U.S. 320, 324-26, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997)). Under AEDPA, we cannot grant habeas relief for claims that were adjudicated on the merits in state court proceedings unless that adjudication either (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding. 28 U.S.C. § 2254(d). “We review pure questions of law under the ‘contrary to’ standard of sub-section (d)(1), mixed questions of law and fact under the ‘unreasonable application’ standard of sub-section (d)(1), and pure questions of fact under the ‘unreasonable determination of facts’ standard of sub-section (d)(2).” Murphy v. Johnson, 205 F.3d 809, 813 (5th Cir.2000) (citation omitted). A decision is contrary to clearly established federal law under § 2254(d)(1) if the state court (1) “arrives at a conclusion opposite to that reached by [the Supreme] Court on a question of law”; or (2) “confronts facts that are materially indistinguishable from a relevant Supreme Court precedent” and reaches an opposite result. Williams v. Taylor, 529 U.S. 362, 405, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). The state court makes an unreasonable application of clearly established federal law if the state court (1) “identifies the correct governing legal rule from [the Supreme] Court’s cases but unreasonably applies it to the facts”; or (2) “either unreasonably extends a legal principle from [Supreme Court] precedent to a new context where it should not apply or unreasonably refuses to extend that principle to a new context where it should apply.” Id. at" }, { "docid": "958460", "title": "", "text": "941, 946 (5th Cir.2001). Because Moody’s petition was filed after the effective date of the enactment of the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), 28 U.S.C. § 2254, our review is governed by a more heightened standard of review. Accordingly, a federal writ of habeas corpus may not issue to a petitioner seeking relief under AEDPA, unless the state adjudication of his claim, (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding. 28 U.S.C. § 2254(d); see also Ogan v. Cockrell, 297 F.3d 349, 355 (5th Cir.2002). Moreover, a writ of habeas corpus pursuant to § 2254 should not issue solely on the basis that the state court committed error. Rather, the writ should be granted only if the state court “arrive[d] at a conclusion opposite to that reached by [the Supreme Court] on a question of law or if the state court decide[d] a case differently than [the Supreme Court] has on a set of materially indistinguishable facts.” Williams v. Taylor, 529 U.S. 362, 413, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). Absent a direct conflict with Supreme Court authority, habeas relief is available only if the state court decision is factually or legally unreasonable in light of the evidence present in the state court proceeding. Montoya v. Johnson, 226 F.3d 399, 404 (5th Cir.2000). Notwithstanding, an unreasonable application of federal law is not the equivalent of an incorrect application of federal law. Williams v. Taylor, 529 U.S. 362, 412, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). Indeed, a federal writ may not issue merely because the state court incorrectly applied federal law; the application must also be unreasonable. Id. at 411, 120 S.Ct. 1495. An unreasonable application occurs “if the state court identifies the correct governing legal principles from [the Supreme Court’s] decision, but unreasonably applies that principle" }, { "docid": "14134049", "title": "", "text": "State court proceeding. 28 U.S.C. § 2254(d) (Supp. V 1999). The Supreme Court recently elaborated on the § 2254(d)(1) standards. See Williams v. Taylor, 529 U.S. 362, 404-13, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). Applying statutory construction principles, the Court determined that the phrases “contrary to” and “unreasonable application of’ establish “two categories of cases in which a state prisoner may obtain federal habeas relief with respect to a claim adjudicated on the merits in state court.” Id. at 404, 120 S.Ct. 1495. According to the Court, a state court decision is “contrary to ... clearly established Federal law, as determined by the Supreme Court” if: (1) “the state court applies a rule that contradicts the governing law set forth in [the Supreme Court’s] cases,” or (2) “the state court confronts a set of facts that are materially indistinguishable from a decision of [the Supreme] Court and nevertheless arrives at a result different from [Supreme Court] precedent.” Id. at 405-06, 120 S.Ct. 1495. The Court determined that a state court decision is “an unreasonable application of clearly established” Supreme Court precedent if the state court “correctly identifies the governing legal rule but applies it unreasonably to the facts of a particular prisoner’s case.” Id. at 407-08, 120 S.Ct. 1495. The Court established two guidelines for ascertaining when an application of federal law is “unreasonable.” First, the Court indicated that the inquiry into unreasonableness is an objective one. See id. at 409-10, 120 S.Ct. 1495. Second, the Court emphasized that “unreasonable” does not mean merely “incorrect”: an application of clearly established Supreme Court precedent must be incorrect and unreasonable to warrant federal habeas relief. See id. at 410-12, 120 S.Ct. 1495. To establish that habeas relief is warranted on the § 2254(d)(2) ground that the state court’s decision was based on an “unreasonable determination of the facts in light of the evidence presented in the State court proceeding,” a petitioner must rebut by clear and convincing evidence the § 2254(e)(1) presumption that a state court’s factual findings are correct. Dowthitt v. Johnson, 230 F.3d 733, 741 (5th Cir.2000); see also" }, { "docid": "3457087", "title": "", "text": "based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding. 28 U.S.C. § 2254(d)(l)-(2) (2000). For pure questions of law and mixed questions of law and fact adjudicated on the merits in state court, the standard articulated in § 2254(d)(1) applies: the state court decision must have been either “contrary to” or “an unreasonable application of’ clearly established precedent. Martin v. Cain, 246 F.3d 471, 475 (5th Cir.), cert. denied, 534 U.S. 885, 122 S.Ct. 194, 151 L.Ed.2d 136 (2001) (mem.op.). For a state decision to have been “contrary to” established precedent, the state court must have either “arrive[d] at a conclusion opposite to that reached by [the Supreme Court] on a question of law” or “confront[ed] facts that are materially indistinguishable from a relevant Supreme Court precedent and arrive[d] at a decision opposite to” the one reached by the Court. Williams v. Taylor, 529 U.S. 362, 405, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). A state court decision is an “unreasonable application of’ clearly established precedent “if the state court identified] the correct governing legal principle from [the Supreme] Court’s decision but unreasonably applie[d] that principle to the facts of the prisoner’s case.” Id. at 413, 120 S.Ct. 1495. For purely factual issues, the AEDPA precludes federal habeas relief unless the state court’s decision on the merits was “based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d)(2) (2000)’ In addition, the state court’s factual determinations carry a presumption of correctness; to rebut them, the petitioner must present clear and convincing evidence to the contrary. 28 U.S.C. § 2254(e)(1) (2000). Finally, although Smith did not move for summary judgment in this ease, the district court’s decision essentially granted summary judgment in his favor on the Strickland and Penry issues. While, “[a]s a general principle, Rule 56 of the Federal Rules of Civil Procedure, relating to summary judgment, applies with equal force in the context of habeas corpus cases,” Clark v. Johnson, 202 F.3d 760, 764 (5th Cir.)," }, { "docid": "13749689", "title": "", "text": "facts pertaining to Judge Henry Wade, Jr.’s interest in the case. Instead, they dispute whether, in light of these facts, Richardson’s due process rights were violated. Thus, whether Richardson’s due process rights were violated is a question of law, and should be evaluated under section 2254(d)(1). The phrase “clearly established Federal law” for the purposes of 28 U.S.C. § 2254(d)(1) refers to “the governing legal principle or principles set forth by the Supreme Court at the time the state court rendered] its decision.” Lockyer v. Andrade, 538 U.S. 63, 123 S.Ct. 1166, 1172, 155 L.Ed.2d 144 (2003) (quoting Williams v. Taylor, 529 U.S. 362, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000)). It includes the holdings, but not the dicta, of these Supreme Court opinions. Id. A state court “decision is contrary to clearly established federal law ‘if the state court arrives at a conclusion opposite to that reached by [the Supreme Court] on a question of law or if the state court decides a case differently than [the] Court has on a set of materially indistinguishable facts.’ ” Gardner v. Johnson, 247 F.3d 551, 557 (5th Cir.2001) (alterations in original) (quoting Williams, 120 S.Ct. at 1523). Further, as we said in Horn, 508 F.3d at 312-13: “A state court’s decision constitutes an ‘unreasonable application’ of ‘clearly established Federal law, as determined by the Supreme Court,’ ‘ “if the state court correctly identifies the governing legal principle from [Supreme Court] decisions but unreasonably applies it to the facts of the particular case.” ’ Busby [v. Dretke], 359 F.3d [708,] 713 [5th Cir.2004] (quoting Bell v. Cone, 535 U.S. 685, 694, 122 S.Ct. 1843, 152 L.Ed.2d 914 (2002)). “We cannot reverse the denial of habeas relief simply by concluding that the state court decision applied clearly established federal law erroneously,’ but rather, ‘we must conclude that such application was also unreasonable.’ Martin [v. Cain], 246 F.3d [471] 476 [5th Cir.2001]; see Neal v. Puckett, 286 F.3d 230, 233 (5th Cir.2002) (en banc) (per curiam) (denying habeas relief where state court’s conclusion was incorrect but not unreasonable).” (footnote omitted) As the Supreme Court" }, { "docid": "1635858", "title": "", "text": "28 U.S.C. § 2254(d).” Barrientes v. Johnson, 221 F.3d 741, 772 (5th Cir.2000). Section 2254(d) provides that a state prisoner’s application for a writ of habeas corpus “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. 28 U.S.C. § 2254(d). “A state court’s decision is ‘contrary to’ clearly established federal law if ‘the state court arrives at a conclusion opposite to that reached by [the Supreme Court] on a question of law or if the state court decides a case differently than [the Supreme Court] has on a set of materially indistinguishable facts.’ ” Hoffman v. Cain, 752 F.3d 430, 437 (5th Cir.2014) (alterations in original) (quoting Williams v. Taylor, 529 U.S. 362, 413, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000)). By contrast, “[a] state court’s decision involves an ‘unreasonable application’ of clearly established federal law if ‘the state court identifies the correct governing legal principle from [the Supreme Court’s] decisions but unreasonably applies that principle to the facts of the prisoner’s case.’ ” Id. at 437 (altera tions in original) (quoting Williams, 529 U.S. at 413, 120 S.Ct. 1495). As to this latter inquiry, “we focus on ‘the ultimate legal conclusion that the state court reached and not on whether the state court considered and discussed every angle of the evidence.’ ” Id. (quoting Neal v. Puckett, 286 F.3d 230, 246 (5th Cir.2002) (en banc) (per curiam)). To determine whether the state court unreasonably applied a Supreme Court decision, a federal habeas court “must determine what arguments or theories supported or ... could have supported ... the state court’s decision; and then it must ask whether it is possible fairminded jurists could disagree that those arguments or" }, { "docid": "16134550", "title": "", "text": "district court’s denial of a petition for writ of habeas corpus de novo. Tolliver v. Sheets, 594 F.3d 900, 915 (6th Cir.2010). Because Tibbetts filed his petition after April 24, 1996, it is subject to the requirements of the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”). Carter v. Mitchell, 443 F.3d 517, 524 (6th Cir.2006). Under AEDPA, a writ may not be granted unless the state court’s 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; 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 proceedings. 28 U.S.C. § 2254(d)(1)-(2). Factual determinations made by the state courts are presumed to be correct unless rebutted by clear and convincing evidence. Id. § 2254(e)(1). “A state court renders an adjudication ‘contrary’ to federal law when it ‘arrives at a conclusion opposite to that reached by [the Supreme] Court on a question of lav/ or ‘decides a case differently than [the Supreme] Court has on a set of materially indistinguishable facts.’ ” Biros v. Bagley, 422 F.3d 379, 386 (6th Cir.2005) (quoting Williams v. Taylor, 529 U.S. 362, 412-13, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000)). “A state court unreasonably applies Supreme Court precedent ‘if the state court identifies the correct governing legal rule ... but unreasonably applies it to the facts of the particular prisoner’s case.’ ” Barnes v. Elo, 339 F.3d 496, 501 (6th Cir.2003) (quoting Williams, 529 U.S. at 407, 120 S.Ct. 1495). “In order for a writ to issue, we must determine both that the state court incorrectly applied the relevant Supreme Court precedent and that this misapplication was objectively unreasonable.” Tolliver, 594 F.3d at 916. We emphasize that AEDPA sets forth a heavy burden for a petitioner to overcome. “The question under AEDPA is not whether a federal court believes the state court’s determination was incorrect but whether that determination was unreasonable — a substantially higher threshold.” Schriro v." } ]

[ { "docid": "22719630", "title": "", "text": "felony murder. Goodall v. United States, 86 U. S. App. D. C. 148, 180 F. 2d 397; Green v. United States, 95 U. S. App. D. C. 45, 218 F. 2d 856. Even more important, Green’s plea of former jeopardy does not rest on his conviction for second degree murder but instead on the first jury’s refusal to find him guilty of felony murder. It is immaterial whether second degree murder is a lesser offense included in a charge of felony murder or not. The vital thing is that it is a distinct and different offense. If anything, the fact that it cannot be classified as “a lesser included offense” under the charge of felony murder buttresses our conclusion that Green was unconstitutionally twice placed in jeopardy. American courts have held with uniformity that where a defendant is charged with two offenses, neither of which is a lesser offense included within the other, and has- been found guilty on one but not on the second he cannot be tried again on the second even though he secures reversal of the conviction and even though the- two offenses are related offenses charged in the same indictment. See, e. g., Annotation, 114 A. L. R. 1406. With the exception of Trono, the Government appears to concede in its brief, pp. 38-39, that the double jeopardy problem raised in this case has not been squarely before this Court. Palko v. Connecticut, 302 U. S. 319, Brantley v. Georgia, 217 U. S. 284, and Kring v. Missouri, 107 U. S. 221, are not controlling here since they involved trials in state courts. Stroud v. United States, 251 U. S. 15, is clearly distinguishable. In that case a defendant was retried for first degree murder after he had successfully asked an appellate court to set aside a prior conviction for that same offense. In the course of his opinion Mr. Justice Peckham made some' general observations to the effect that he regarded the statutory provision as having the same effect as the Fifth Amendment. Those remarks were not essential to the decision so that even" } ]

[ { "docid": "23181808", "title": "", "text": "automatic retrial rule whenever a defendant is tried for a jeopardy-barred crime and is convicted of a lesser included offense. Rather, the Court relied on the likelihood that the conviction for manslaughter had been influenced by the trial on the murder charge — that the charge of the greater offense for which the jury was unwilling to convict also made the jury less willing to consider the defendant’s innocence on the lesser charge. That basis for finding or presuming prejudice is not present here. The jury did not acquit Mathews of the greater offense of aggravated murder, but found him guilty of that charge and, a fortiori, of the lesser offense of murder as well. Benton v. Maryland, 395 U. S. 784 (1969), also strongly indicates that to prevail here, Mathews must show that trying him on the jeopardy-barred charge tainted his conviction for the lesser included offense. Benton was tried for both larceny and burglary. The jury acquitted him on the larceny count, but found him guilty of burglary. His conviction was later set aside because the jury had been improperly sworn. Benton again was tried for both burglary and larceny, and the second jury found him guilty of both offenses. The Maryland Court of Appeals held there had been no double jeopardy violation, but we disagreed, ruling that the Double Jeopardy Clause required setting aside the larceny conviction and sentence. Id., at 796-797. Benton urged that his burglary conviction must also fall because certain evidence admitted at his second trial would not have been admitted had he been tried for burglary alone. This evidence, he claimed, prejudiced the jury and influenced their decision to convict him of burglary. We rejected that argument, saying both that “[i]t [was] not obvious on the face of the record that the burglary conviction was affected by the double jeopardy violation,” and that we should not make this kind of evidentiary determination “unaided by prior consideration by the state courts.” Id., at 798 (footnote omitted). We thus vacated the judgment of the Maryland court, and remanded for further proceedings. Neither Benton nor Price" }, { "docid": "6004262", "title": "", "text": "in violation of the Constitution. Based on its conclusion that there had been an implied acquittal, the Court stated: After the original trial, but prior to his appeal, it is indisputable that Green could not have been tried again for first degree murder for the death resulting from the fire. A plea of former jeopardy would have absolutely barred a new prosecution even though it might have been convincingly demonstrated that the jury erred in failing to convict him of that offense. And even after appealing the conviction of second degree murder he still could not have been tried a second time for first degree murder had his appeal been unsuccessful. Green, 355 U.S. 184 at 191, 78 S.Ct. at 225. In summarizing its holding in Green, the Court in Price observed: The Court in the Green ease reversed the first-degree murder conviction obtained at the retrial, holding that the petitioner’s jeopardy for first-degree murder came to an end when the jury was discharged at the end of his first trial. This conclusion rested on two premises. First, the Court considered the first jury’s verdict of guilty on the second-degree murder charge to be an “implicit acquittal” on the charge of first-degree murder. Second, and more broadly, the Court reasoned that petitioner’s jeopardy on the greater charge had ended when the first jury “was given a full opportunity to return a verdict” on that charge and instead reached a verdict on the lesser charge. 355 U.S. at 191, 78 S.Ct. at 225-26. Price, 398 U.S. at 328-29, 90 S.Ct. at 1761. Bordeaux also argues that Brown v. Ohio, 432 U.S. 161, 97 S.Ct. 2221, 53 L.Ed.2d 187 (1977), supports his argument that once he was convicted of the lesser included offense he could not be retried on the greater offense. However, we find Brown distinguishable from the facts of this case because the greater offense and the lesser included offense were not brought against Bordeaux in successive prosecutions. In Brown, the defendant pleaded guilty to the charge of joyriding, served his punishment, and the state subsequently indicted him for auto" }, { "docid": "2078580", "title": "", "text": "miscarriage of justice. He has not alleged that the allegedly ineffective appellate counsel represented him on his second habeas petition, nor could he. Taylor proceeded pro se on that petition. In conclusion, for the reasons discussed above, Taylor’s petition for a writ of habeas corpus is denied. The Court finds that the petition presents no question of substance for appellate review, and therefore a certificate of probable cause will not issue. See Rodriquez v. Scully, 905 F.2d 24, 24 (2d Cir.1990) (per curiam). SO ORDERED. . In his memorandum of law attached to his petition, Taylor also cites two Supreme Court cases dealing with the Fifth Amendment Double Jeopardy Clause, Price v. Georgia, 398 U.S. 323, 90 S.Ct. 1757, 26 L.Ed.2d 300 (1970), and Green v. United States, 355 U.S. 184, 78 S.Ct. 221, 2 L.Ed.2d 199 (1957). The Double Jeopardy Clause of the Fifth Amendment and the cases cited by Taylor have no bearing on Taylor's circumstances. Price held that where a state defendant, charged with murder and found guilty of the lesser included offense of voluntary manslaughter, sought and obtained reversal of his initial conviction upon appeal, no aspect of the bar on double jeopardy prevented his retrial for that crime, but because the first verdict was limited to the lesser included offense, retrial was to be limited to that lesser offense. See Price, 398 U.S. at 329, 90 S.Ct. at 1761. In Green, the petitioner had been tried and convicted of first degree murder after an earlier guilty verdict on the lesser included offense of second degree murder had been set aside on appeal. In the first trial, the jury was instructed to find the defendant guilty of either first degree murder or, alternatively, second degree murder. The Supreme Court held that the second trial of the defendant for first degree murder violated the constitutional prohibition against double jeopardy, and that the defendant had not waived that constitutional defense by making a successful appeal of his improper conviction of second degree murder. See Green, 355 U.S. at 191-92, 78 S.Ct. at 225-26. Here, Taylor’s conviction for first" }, { "docid": "6424449", "title": "", "text": "trial judge’s acceptance of Klobuchir’s third degree murder plea here did not in any way imply or determine that Klobuchir was not guilty of first degree murder. Since Klobuchir has never been “implicitly acquitted” of first degree murder, he does not confront the dilemma which Green faced: surrender an acquittal or accept an illegal conviction. Here Klobuchir only surrendered the benefits of the plea bargain, not an acquittal. His dilemma was therefore not of the same character or nature as Green’s. Cf. North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969) (double jeopardy places no restriction upon the length of the sentence imposed after retrial). Klobuchir apparently asserts as well that even if there was no determination as to his guilt or innocence of first degree murder, the double jeopardy clause prevents his retrial on that count. He claims that a defendant has an interest “in avoiding multiple prosecution even where no final determination of guilt or innocence has been made.” United States v. Scott, supra at 92, 98 S.Ct. at 2194. Thus, he claims, if the government abandons its prosecution once the trial has reached a certain point, jeopardy attaches and the government ordinarily will not be permitted to retry the defendant. Klobuchir’s argument continues that jeopardy attached at the time he pleaded guilty to third degree murder and that no retrial on any greater charge may thereafter be permitted. We find no more merit to this argument than we did to his original argument. In a jury trial jeopardy attaches when the jury is empaneled and sworn; in a non-jury trial jeopardy attaches when the court begins to hear evidence. See, e. g., Serfass v. United States, 420 U.S. 377, 388, 95 S.Ct. 1055, 1062, 43 L.Ed.2d 265 (1975). Neither stage has ever been reached here, and as a consequence jeopardy has yet to attach. In holding that the double jeopardy clause does not prevent the retrial of Klobuchir for first degree murder after the court had vacated his guilty plea to third degree murder, a lesser included offense, we are in agreement" }, { "docid": "2670081", "title": "", "text": "not been informed adequately of the nature of the second degree murder charge, set aside the judgment of conviction and reinstated the original indictment. Barker moved for dismissal of the reinstated indictment on grounds of double jeopardy. She maintained that by accepting her plea of guilty to second degree murder, the district court necessarily found an adequate factual basis for the charge and this constituted an implicit acquittal of the first degree murder and conspiracy charges. Id. at 590. This court rejected Barker’s contention. We reasoned that first, Barker never stood trial on the first degree murder and conspiracy charges and, thus, was never “in direct peril”. Id. at 591. As such, reinstatement of the indictment and trial did not constitute “reprosecution” nor was Barker “subjected to the physical, psychological and financial burdens” of repeated prosecution. Id. Secondly, the trial judge’s review of the plea agreement was not a forum for consideration of the factual basis of the abandoned charges. Any determination as to the defendant’s guilt or innocence [was] restricted to the specific charge to which the defendant had agreed to plead guilty. In accepting the plea to the lesser offense the judge [was] not free to consider conviction or acquittal on the more serious offense. In the context of a plea hearing, the latter charge [was] not before him. Id. at 592; see also Klobuchir v. Pennsylvania, 639 F.2d 966 (3rd Cir.1981), cert, denied, 454 U.S. 1031, 102 S.Ct. 566, 70 L.Ed.2d 474 (1981) (double jeopardy clause does not bar trial on greater offense where that charge had previously been dismissed pursuant to plea agreement and conviction of lesser offense which was subsequently vacated); United States v. Combs, 634 F.2d 1295 (10th Cir.1980), cert, denied, 451 U.S. 913, 101 S.Ct. 1987, 68 L.Ed.2d 304 (1981) (acceptance of guilty plea on lesser included offense not implicit acquittal of greater offense). Barker stands as a compelling analogy. Like Barker, Vaughan has not faced a trier of fact with respect to the 1977 conspiracy charges. Nor did the district court consider the factual basis of the 1977 conspiracy charges when reviewing" }, { "docid": "22644176", "title": "", "text": "retrial for that crime. However, the first verdict, limited as it was to the lesser included offense, required that the retrial be limited to that lesser offense. Such a result flows inescapably from the Constitution’s emphasis on a risk of conviction and the Constitution’s explication in prior decisions of this Court. An early case to deal with restrictions on retrials was Kepner v. United States, 195 U. S. 100 (1904), where the Court held that the Fifth Amendment’s double jeopardy prohibition barred the Government from appealing an acquittal in a criminal prosecution, over a dissent by Mr. Justice Holmes that argued that there was only one continuing jeopardy until the proceedings against the accused had been finally resolved. He held to the view that even if an accused was retried after the Government had obtained reversal of an acquittal, the second trial was part of the original proceeding. Similar double jeopardy issues did not fully claim the Court’s attention until the Court heard argument in Green v. United States, 355 U. S. 184 (1957). There the petitioner had been tried and convicted of first-degree murder after an earlier guilty verdict on the lesser included offense of second-degree murder had been set aside on appeal. A majority of the Court rejected the argument that by appealing the conviction of second-degree murder the petitioner had “waived” his plea of former jeopardy with regard to the charge of first-degree murder. The Court in the Green case reversed the first-degree murder conviction obtained at the retrial, holding that the petitioner’s jeopardy for first-degree murder came to an end when the jury was discharged at the end of his first trial. This conclusion rested on two premises. First, the Court considered the first jury’s verdict of guilty on the second-degree murder charge to be an “implicit acquittal” on the charge of first-degree murder. Second, and more broadly, the Court reasoned that petitioner’s jeopardy on the greater charge had ended when the first jury “was given a full opportunity to return a verdict” on that charge and instead reached a verdict on the lesser charge. 355" }, { "docid": "3370686", "title": "", "text": "defendant has the plea set aside, however, the general rule is that “double jeopardy is not implicated by his subsequently being recharged and tried on that same count.” Taylor, 920 F.2d at 602 n. 2; see also United States v. Barker, 681 F.2d 589, 590-92 (9th Cir.1982) (rejecting a double jeopardy claim where the defendant pled guilty to second degree murder, subsequently moved to set aside her plea and conviction, and then argued that the district court’s acceptance of her initial guilty plea acted as an acquittal as to a first degree murder charge). Patterson’s case is, of course, distinguishable from Taylor and Barker because it was not his decision to have the plea set aside. Instead, the district court vacated the plea on the government’s motion. Once the court accepted the plea and deferred acceptance of the plea agreement, however, the court was not free to vacate the plea on the government’s motion. United States v. PartidaParra, 859 F.2d 629, 631-34 (9th Cir.1988). In Ellis, as here, the district court accepted the defendant’s guilty plea but deferred acceptance of the plea agreement until after the PSR was prepared. After reviewing the PSR, the court vacated the plea on its own initiative and required the defendant to plead to higher charges. Prior to Ellis, there had been some question as to “whether a court’s acceptance of a plea of guilty constitutes the point at which jeopardy attaches ... where the court’s acceptance was conditioned on the court’s review of the plea agreement and the court’s determination of the appropriateness of the sentence.” United States v. Faber, 57 F.3d 873, 875 (9th Cir.1995) (discussing Adamson v. Ricketts, 789 F.2d 722 (9th Cir.1986) (raising but not resolving the issue), rev’d, 483 U.S. 1, 107 S.Ct. 2680, 97 L.Ed.2d 1 (1987)). Although Ellis did not concern double jeopardy, the en banc court rejected the position taken in our earlier precedent that the district court’s acceptance of a guilty plea is “ ‘impliedly contingent’ ” on the court’s review of the PSR. Ellis, 356 F.3d at 1205 (quoting United States v. Cordova-Perez, 65 F.3d" }, { "docid": "8617342", "title": "", "text": "no conditions attendant upon acceptance of this plea, other than the terms of the written plea bargain itself. I would conclude that jeopardy attached upon entry of the plea. With this principle in mind, a major defect of the majority opinion becomes apparent. By the majority’s reasoning, Adamson could have renounced the agreement a week after it was made and, as it holds double jeopardy had not been waived, he would have the same incredible immunity from the agreement’s enforcement mechanism as the majority grants him because the conviction and sentence were entered. The question becomes what jeopardy protection remained after the plea and conviction were set aside. The quality and degree of jeopardy protection derived from a conviction based on a voluntary plea must be confronted by the majority. When the plea or conviction based upon it is set aside and further proceedings commence, the authorities do not support the premise that prosecution for a greater offense is necessarily prohibited. Where a conviction is set aside, the protections of the double jeopardy clause are only in proportion to, not greater than, the risks assumed by the defendant in the former proceeding. As the plea does not put a defendant at risk of a determination of guilt for a higher offense, a charge for the higher offense may be reinstated when and if the plea or its consequent conviction are set aside, absent, say, a circumstance in which the state somehow is entitled to set aside the plea but acts unilaterally and without cause to impose greater burdens on the defendant. In United States v. Barker, 681 F.2d 589 (9th Cir.1982), the defendant agreed to plead guilty to second degree murder. She successfully had the conviction set aside on a section 2255 motion, on the ground that she had not been adequately informed of the nature of the second degree murder charge. Id. at 590. Her retrial for first degree murder was held not barred by double jeopardy, because the court’s acceptance of the plea to second degree murder did not constitute an implied acquittal of first degree murder. Id." }, { "docid": "7698336", "title": "", "text": "for dismissal of the indictment. She argued that in accepting her plea of guilty to second degree murder, the district court necessarily found that there was an adequate factual basis for the charge of second degree murder. She contended that finding “acted as an acquittal” as to first degree murder and conspiracy to commit murder. In Barker’s view, retrial on the two charges on which she had been acquitted was precluded by the double jeopardy clause. Citing cases from several other circuits that reject implicit acquittal claims identical to Barker’s, the district court denied the motion to dismiss the indictment. The proceedings were stayed pending this appeal. II Barker’s implied acquittal theory is derived from Green v. United States, 355 U.S. 184, 78 S.Ct. 221, 2 L.Ed.2d 199 (1957). The defendant in Green was tried for first degree murder. The jury was given a lesser included offense instruction, and convicted Green of second degree murder. That conviction was reversed, and Green was retried on the first degree murder charge. The Court held that retrial on the greater charge violated the double jeopardy clause. “Green was in direct peril of being convicted and punished for first degree murder at his first trial. He was forced to run the gantlet once on that charge and the jury refused to convict him. When given the choice between finding him guilty of either first or second degree murder it chose the latter. In this situation the great majority of cases in this country have regarded the jury’s verdict as an implicit acquittal on the charge of first degree murder.” Id. at 190, 78 S.Ct. at 225 (footnote omitted). Barker’s attempted analogy to Green fails for two reasons. First, she is not similarly situated to the Green defendant. She has not stood trial on the first degree murder charge, and thus has not been “in direct peril” of conviction and punishment on that charge. See United States v. Williams, 534 F.2d 119, 121 (8th Cir.), cert. denied, 429 U.S. 894, 97 S.Ct. 255, 50 L.Ed.2d 177 (1976). Trial on the first degree charge will not" }, { "docid": "7698335", "title": "", "text": "to kill Albert Barker by injection of a lethal substance. Barker and Reyes entered into plea agreements under which each agreed to plead guilty to second degree murder. Barker’s plea was entered at a protracted hearing at which the district judge attempted to make the inquiries required by Fed.R.Crim.P. 11(c) and (d). Because Barker’s native language is Vietnamese, and her ability to speak English is limited, establishing on the record that the plea was knowing and voluntary posed special problems. After assurances from Barker’s counsel that Barker fully understood the effect of her plea, the district judge accepted the plea, dismissed the indictment, and sentenced Barker to a term of twenty years imprisonment. Barker subsequently retained her present counsel, who moved under 28 U.S.C. § 2255 to set aside her plea and conviction. The district judge agreed that Barker had not been adequately informed of the nature of the second degree murder charge. He set aside the judgment and vacated his order dismissing the indictment. Barker pleaded not guilty to both counts, and then moved for dismissal of the indictment. She argued that in accepting her plea of guilty to second degree murder, the district court necessarily found that there was an adequate factual basis for the charge of second degree murder. She contended that finding “acted as an acquittal” as to first degree murder and conspiracy to commit murder. In Barker’s view, retrial on the two charges on which she had been acquitted was precluded by the double jeopardy clause. Citing cases from several other circuits that reject implicit acquittal claims identical to Barker’s, the district court denied the motion to dismiss the indictment. The proceedings were stayed pending this appeal. II Barker’s implied acquittal theory is derived from Green v. United States, 355 U.S. 184, 78 S.Ct. 221, 2 L.Ed.2d 199 (1957). The defendant in Green was tried for first degree murder. The jury was given a lesser included offense instruction, and convicted Green of second degree murder. That conviction was reversed, and Green was retried on the first degree murder charge. The Court held that retrial on" }, { "docid": "2670080", "title": "", "text": "evidence pertaining to guilt or innocence of the conspiracy charges adduced. The record does not indicate that the dismissal in any way implied acquittal on those charges. Cf. United States v. Dahlstrum, 655 F.2d 971, 974 (9th Cir.1981), cert, denied, 455 U.S. 928, 102 S.Ct. 1293, 71 L.Ed.2d 472 (1982) (dismissal is not equivalent to acquittal even if dismissal is “with prejudice”). On this record, we conclude that Vaughan was never placed in jeopardy in connection with the conspiracies charged in the 1977 indictment. In reaching this conclusion we are guided by our recent holding in United States v. Barker, 681 F.2d 589 (9th Cir.1982). In Barker, the defendant was indicted for first degree murder of her husband and conspiracy to commit the murder. Barker entered a plea agreement under which she pleaded guilty to second degree murder in exchange for dismissal of the indictment charging first degree murder and conspiracy. Subsequently, she initiated proceedings under 28 U.S.C. § 2255 to have her plea and conviction set aside. The district court, finding that Barker had not been informed adequately of the nature of the second degree murder charge, set aside the judgment of conviction and reinstated the original indictment. Barker moved for dismissal of the reinstated indictment on grounds of double jeopardy. She maintained that by accepting her plea of guilty to second degree murder, the district court necessarily found an adequate factual basis for the charge and this constituted an implicit acquittal of the first degree murder and conspiracy charges. Id. at 590. This court rejected Barker’s contention. We reasoned that first, Barker never stood trial on the first degree murder and conspiracy charges and, thus, was never “in direct peril”. Id. at 591. As such, reinstatement of the indictment and trial did not constitute “reprosecution” nor was Barker “subjected to the physical, psychological and financial burdens” of repeated prosecution. Id. Secondly, the trial judge’s review of the plea agreement was not a forum for consideration of the factual basis of the abandoned charges. Any determination as to the defendant’s guilt or innocence [was] restricted to the specific charge" }, { "docid": "22644177", "title": "", "text": "the petitioner had been tried and convicted of first-degree murder after an earlier guilty verdict on the lesser included offense of second-degree murder had been set aside on appeal. A majority of the Court rejected the argument that by appealing the conviction of second-degree murder the petitioner had “waived” his plea of former jeopardy with regard to the charge of first-degree murder. The Court in the Green case reversed the first-degree murder conviction obtained at the retrial, holding that the petitioner’s jeopardy for first-degree murder came to an end when the jury was discharged at the end of his first trial. This conclusion rested on two premises. First, the Court considered the first jury’s verdict of guilty on the second-degree murder charge to be an “implicit acquittal” on the charge of first-degree murder. Second, and more broadly, the Court reasoned that petitioner’s jeopardy on the greater charge had ended when the first jury “was given a full opportunity to return a verdict” on that charge and instead reached a verdict on the lesser charge. 355 U. S. at 191. Under either of these premises, the holding in the Kepner case — that there could be no appeal from an acquittal because such a verdict ended an accused’s jeopardy — was applicable. The rationale of the Green holding applies here. The concept of continuing jeopardy implicit in the Ball case would allow petitioner’s retrial for voluntary manslaughter after his first conviction for that offense had been reversed. But, as the Kepner and Green cases illustrate, this Court has consistently refused to rule that jeopardy for an offense continues after an acquittal, whether that acquittal is express or implied by a conviction on a lesser included offense when the jury was given a full opportunity to return a verdict on the greater charge. There is no relevant factual distinction between this case and Green v. United States. Although the petitioner was not convicted of the greater charge on retrial, whereas Green was, the risk of conviction on the greater charge was the same in both cases, and the Double Jeopardy Clause of" }, { "docid": "17841716", "title": "", "text": "in the rules allowing a court to reject or modify an agreement once accepted. On the contrary, the principle that a plea agreement once accepted is binding is signaled by Rule 11 itself. Id. at 399 (footnotes and citations omitted). Thus, the Rules of Criminal Procedure “do not grant the court the power to revisit a plea merely because át a later date the court has second thoughts about a bargain it has already approved.”' Id. at 401. Just as criminal defendants “are rarely released from their agreements” when a “plea bargain has turned out not to be such a bargain after all,” neither should the government be permitted to do so. Id. Patterson’s plea was not defective, and the district court validly and unconditionally accepted the plea. Thus, as Patterson correctly contends, his guilty plea constituted a conviction for the lesser included offense of manufacturing an unspecified quantity of marijuana, and he could not subsequently be retried for the greater offense of manufacturing 100 or more marijuana plants. See Brown v. Ohio, 432 U.S. 161, 167-70, 97 S.Ct. 2221, 53 L.Ed.2d 187 (1977) (holding that the double jeopardy clause prohibited prosecution for the greater offense of auto theft following the defendant’s conviction for the lesser included offense of joy-riding); Green v. United States, 355 U.S. 184, 189-91, 78 S.Ct. 221, 2 L.Ed.2d 199 (1957) (finding double jeopardy violated where defendant was retried on a first degree murder charge following reversal of his conviction by jury of a lesser included offense, second degree murder); cf. United States v. Timbana, 222 F.3d 688, 701-02 (9th Cir.) (rejecting the defendant’s argument that his plea was not knowing and voluntary where he assured the court he voluntarily gave up his rights in order to enter a plea to a lesser offense than that charged in the indictment), cert. denied, 531 U.S. 1028, 121 S.Ct. 604, 148 L.Ed.2d 516 (2000). Under Partida-Parra, the district court did not have the authority to withdraw the plea. Accordingly, Patterson’s sentence' should be vacated and the case remanded for resentencing based on the offense to which he pleaded" }, { "docid": "8617343", "title": "", "text": "only in proportion to, not greater than, the risks assumed by the defendant in the former proceeding. As the plea does not put a defendant at risk of a determination of guilt for a higher offense, a charge for the higher offense may be reinstated when and if the plea or its consequent conviction are set aside, absent, say, a circumstance in which the state somehow is entitled to set aside the plea but acts unilaterally and without cause to impose greater burdens on the defendant. In United States v. Barker, 681 F.2d 589 (9th Cir.1982), the defendant agreed to plead guilty to second degree murder. She successfully had the conviction set aside on a section 2255 motion, on the ground that she had not been adequately informed of the nature of the second degree murder charge. Id. at 590. Her retrial for first degree murder was held not barred by double jeopardy, because the court’s acceptance of the plea to second degree murder did not constitute an implied acquittal of first degree murder. Id. at 590-92. As Judge Hug noted in his opinion for the court in Barker, the precedents are in full accord. Klobuchir v. Pennsylvania, 639 F.2d 966 (3d Cir.), cert. denied, 454 U.S. 1031, 102 S.Ct. 566, 70 L.Ed.2d 474 (1981) (where conviction of third degree murder set aside, double jeopardy did not bar trial for murder in the first degree, as the prior conviction rested on a plea, not a trial); Hawk v. Berkemer, 610 F.2d 445 (6th Cir. 1979) (after guilty plea and conviction of murder and dismissal of aggravated murder charge in state court, defendant’s appeal in effect withdrew the plea and the original, more serious charge can be reinstated). The rule of Brown v. Ohio, 432 U.S. 161, 97 S.Ct. 2221, 53 L.Ed.2d 187 (1977), is simply not controlling, though the majority assumes its applicability without discussion. That case discusses double jeopardy protections which stem from a plea and a conviction that remain in force, not a plea and conviction that are set aside. Here the state ordered the conviction vacated under" }, { "docid": "6424446", "title": "", "text": "murder and was convicted by the jury on the latter count. Green appealed, and his conviction for second degree murder was vacated. He subsequently was retried and was then convicted of first degree murder. The Supreme Court held that the retrial of Green for first degree murder was barred by the double jeopardy clause of the Fifth Amendment. The Court reasoned that when the jury did not convict Green of first degree murder, it had implicitly acquitted him of that charge. He had run the “gauntlet”, id. at 190, 78 S.Ct. at 225, and, at least with respect to first degree murder, had escaped unscathed. The Court explained that one purpose of double jeopardy was to protect an individual from the “hazards of trial and possible conviction more than once for an alleged offense.” Id. at 187, 78 S.Ct. at 223. The Court went on to state that to allow a second prosecution for first degree murder would be to disregard this purpose of double jeopardy. The Court added that a defendant should not be placed in the dilemma of either surrendering an implied acquittal to a higher charge, or acquiescing to an improper conviction. Id. at 193-94, 78 S.Ct. at 226-227. Klobuchir claims that by analogy, Green governs his case. He likens the trial judge’s acceptance of his plea to third degree murder to Green’s conviction by the jury on the lesser charge of second degree murder. Klobuchir therefore insists that he faces the same onerous dilemma that Green faced — either accept an illegal conviction, or have it vacated and risk conviction on a higher charge with the attendant danger of a harsher sentence. Klobuchir’s analogy, however, is seriously flawed. Unlike a judge accepting a guilty plea, the jury, when it convicts on a lesser included offense, has had a full opportunity to convict on the greater charge. The jury’s return of a guilty verdict on the lesser charge can be interpreted as an implicit acquittal only because it has rejected the opportunity to convict on the greater charge. But the trial judge, by accepting Klobuchir’s guilty plea" }, { "docid": "23604962", "title": "", "text": "that when the plea bargain conviction was vacated on appeal “the condition precedent to the Government’s agreement not to prosecute [on the previously dismissed count] no longer existed,” hence double jeopardy did not bar trial on that count); United States v. Williams, 534 F.2d 119, 120 (8th Cir.) (same), cert. denied, 429 U.S. 894, 97 S.Ct. 255, 50 L.Ed.2d 177 (1976). As alluded to earlier, there is a feature of the present case that distinguishes it from these authorities. Fransaw entered his guilty plea after the jury was empaneled, while in the cited cases the plea bargain was struck before trial. This distinction is important because several cases explicitly assert that jeopardy did not attach to the dismissed counts when the court accepted the plea. By contrast, when the jury was empaneled in Fransaw’s case, jeopardy attached to the entire indictment. Several of the cases involving pretrial dismissals rested at least partially on the ground that jeopardy had never attached to the dismissed counts. In Klobuchir, the Third Circuit stated that jeopardy did not attach to the greater charge by virtue of Klobuchir’s plea to the lesser charge. Thus the state could try him on the greater charge when the plea arrangement foundered. 639 F.2d at 970. In Barker, the Ninth Circuit’s conclusion that double jeopardy would not bar trial on an originally dismissed charge seems primarily motivated by the fact that Barker had not “stood trial on the first degree murder charge, and thus [had] not been ‘in direct peril’ of conviction and punishment on that charge.” 681 F.2d at 591. See also United States v. Vaughan, 715 F.2d 1373, 1377 (9th Cir. 1983) (relying heavily on Barker in holding that jeopardy did not attach to conspiracy counts disposed of in a plea of guilty to possession of marihuana); United States v. Johnson, 537 F.2d 1170, 1174 (4th Cir.1976) (jeopardy does not attach to dismissed counts in indictment); Hawk v. Berkemer, 610 F.2d 445, 448 (6th Cir.1979) (same). Although this distinction diminishes the direct application of these authorities here, we discern in the cases a judicial regard for fairness," }, { "docid": "13287127", "title": "", "text": "— consistently with the double jeopardy clause — be tried again on the greater charge. He may, of course, be tried again on the lesser charge. Defendant contends that his position is, for double jeopardy purposes, indistinguishable from that of Green or Price, that it is immaterial whether the former conviction on the lesser charge resulted from a trial on both the greater and lesser charges or from a plea to the lesser charge only. We cannot agree. The Court in Price, supra, 398 U.S. at 328-29, 90 S.Ct. at 1760-61, 26 L.Ed.2d at 304-05, states that its holdings in both Green and Price rest on two premises. First, a jury’s verdict of guilty on a lesser charge is an “implicit acquittal” on the greater charge. Second, a defendant’s jeopardy on the greater charge ends when the first jury is given a “full opportunity” to return a verdict on that charge and instead returns a verdict on the lesser charge only. Neither premise is applicable when the original conviction on the lesser charge follows a guilty plea rather than a trial on both charges. Green, supra, 355 U.S. at 190, 78 S.Ct. at 225, 2 L.Ed.2d at 206, reveals quite clearly why the Supreme Court concluded that an “implicit acquittal” had occurred there: Green was in direct peril of being convicted and punished for first degree murder at his first trial. He was forced to run the gantlet once on that charge and the jury refused to convict him. When given the choice between finding him guilty of either first or second degree murder it chose the latter. In this situation the great majority of cases in this country have regarded the jury’s verdict as an implicit acquittal on the charge of first degree murder. In contrast, Williams was not, in the proceedings in which his guilty plea was accepted, in direct peril of being convicted and punished for violating § 2113(d) and (e). He was not forced to run the gantlet on those charges. No trier of fact refused to convict him on those charges and none was given" }, { "docid": "6424447", "title": "", "text": "placed in the dilemma of either surrendering an implied acquittal to a higher charge, or acquiescing to an improper conviction. Id. at 193-94, 78 S.Ct. at 226-227. Klobuchir claims that by analogy, Green governs his case. He likens the trial judge’s acceptance of his plea to third degree murder to Green’s conviction by the jury on the lesser charge of second degree murder. Klobuchir therefore insists that he faces the same onerous dilemma that Green faced — either accept an illegal conviction, or have it vacated and risk conviction on a higher charge with the attendant danger of a harsher sentence. Klobuchir’s analogy, however, is seriously flawed. Unlike a judge accepting a guilty plea, the jury, when it convicts on a lesser included offense, has had a full opportunity to convict on the greater charge. The jury’s return of a guilty verdict on the lesser charge can be interpreted as an implicit acquittal only because it has rejected the opportunity to convict on the greater charge. But the trial judge, by accepting Klobuchir’s guilty plea to third degree murder, quite obviously could not have considered any greater charge. He thus could not have “convicted” Klobuchir of first degree murder — an option that was available to the jury in the Green case. Accordingly, Klobuchir, who had not stood trial as Green had, never was in jeopardy of being convicted of first degree murder. Later Supreme Court cases reinforce this analysis. Thus in United States v. Scott, 437 U.S. 82, 98 S.Ct. 2187, 57 L.Ed.2d 65 (1978) the district court, at the close of all the evidence, erroneously dismissed two counts of the indictment, because of pre-indictment delay. The Supreme Court held that the defendant could be retried because “a defendant is acquitted only when the ruling of the judge, whatever its label, actually represents a resolution [in the defendant’s favor] correct or not, of some of or all of the factual elements of the offense charged.” Scott at 97, 98 S.Ct. at 2197 quoting United States v. Martin Linen, 430 U.S. 564, 97 S.Ct. 1349, 51 L.Ed.2d 642 (1977). The" }, { "docid": "3370685", "title": "", "text": "920 F.2d 599, 604 (9th Cir.1990) (stating that, because “ ‘an accused must suffer jeopardy before he can suffer double jeopardy,’ [t]he initial inquiry in double jeopardy analysis ... is whether jeopardy has ‘attached,’ and if so, when”) (citation omitted) (quoting Serfass v. United States, 420 U.S. 377, 393, 95 S.Ct. 1055, 43 L.Ed.2d 265 (1975)). We conclude that jeopardy attached when the court accepted Patterson’s plea and that, once it accepted the plea, the court did not have authority to vacate the plea on the government’s motion. There is no question that the district court accepted Patterson’s guilty plea, even though it made no commitment regarding the sentence it would impose or the plea agreement. Jeopardy ordinarily attaches when the court accepts a plea of guilty. United States v. Vaughan, 715 F.2d 1373, 1378 n. 2 (9th Cir.1983); accord United States v. Aliotta, 199 F.3d 78, 83 (2d Cir.1999) (stating that, “[a]s a general rule, jeopardy attaches in a criminal case at the time the district court accepts the defendant’s guilty plea”). Where the defendant has the plea set aside, however, the general rule is that “double jeopardy is not implicated by his subsequently being recharged and tried on that same count.” Taylor, 920 F.2d at 602 n. 2; see also United States v. Barker, 681 F.2d 589, 590-92 (9th Cir.1982) (rejecting a double jeopardy claim where the defendant pled guilty to second degree murder, subsequently moved to set aside her plea and conviction, and then argued that the district court’s acceptance of her initial guilty plea acted as an acquittal as to a first degree murder charge). Patterson’s case is, of course, distinguishable from Taylor and Barker because it was not his decision to have the plea set aside. Instead, the district court vacated the plea on the government’s motion. Once the court accepted the plea and deferred acceptance of the plea agreement, however, the court was not free to vacate the plea on the government’s motion. United States v. PartidaParra, 859 F.2d 629, 631-34 (9th Cir.1988). In Ellis, as here, the district court accepted the defendant’s guilty" }, { "docid": "7698337", "title": "", "text": "the greater charge violated the double jeopardy clause. “Green was in direct peril of being convicted and punished for first degree murder at his first trial. He was forced to run the gantlet once on that charge and the jury refused to convict him. When given the choice between finding him guilty of either first or second degree murder it chose the latter. In this situation the great majority of cases in this country have regarded the jury’s verdict as an implicit acquittal on the charge of first degree murder.” Id. at 190, 78 S.Ct. at 225 (footnote omitted). Barker’s attempted analogy to Green fails for two reasons. First, she is not similarly situated to the Green defendant. She has not stood trial on the first degree murder charge, and thus has not been “in direct peril” of conviction and punishment on that charge. See United States v. Williams, 534 F.2d 119, 121 (8th Cir.), cert. denied, 429 U.S. 894, 97 S.Ct. 255, 50 L.Ed.2d 177 (1976). Trial on the first degree charge will not constitute reprosecution; nor will Barker be subjected to the physical, psychological and financial burdens that arise when the Government attempts repeated prosecutions. See United States v. Scott, 437 U.S. 82, 87, 98 S.Ct. 2187, 2191, 57 L.Ed.2d 65 (1978); Howard v. United States, 372 F.2d 294, 299 (9th Cir.), cert. denied, 388 U.S. 915, 87 S.Ct. 2129, 18 L.Ed.2d 1356 (1967). In fact, the failure of the initial proceeding to result in a final judgment was not a product of Government action, but of Barker’s own decisions to plead guilty and to have that plea set aside. See United States v. Dahlstrum, 655 F.2d 971, 975 (9th Cir. 1981), cert. denied, - U.S. -, 102 S.Ct. 1293, 71 L.Ed.2d 472 (1982); Hawk v. Berkemer, 610 F.2d 445, 448 (6th Cir. 1979). More importantly, there has not yet been a consideration of the factual bases of the first degree murder and conspiracy charges by a trier of fact. A conviction on a lesser included offense can only effect an acquittal as to the more serious offense" } ]

[ { "docid": "22634911", "title": "", "text": "the 1922 Commission order. The Brotherhood thereafter filed its motion to intervene generally as a party defendant, alleging that the primary purpose of the suit was to nullify its agreement with River Road and to deprive the Brotherhood members of the work they were performing under that agreement and that the Brotherhood members were therefore indispensable parties. The contention was made that the Brotherhood had an unconditional right to intervene by virtue of §17 (11) of the Interstate Commerce Act and Rule 24 (a) (2) of the Federal Rules of Civil Procedure; and 28 U. S. C. § 45a was later added in support of this contention. But the motion to intervene was denied by order, without opinion. The District Court then allowed an appeal to this Court from its order denying intervention. The appellee railroads moved to dismiss the appeal on the ground that such an order was not final and hence was not appealable, the Brotherhood not being entitled to intervene as a matter of right. We postponed further consideration of the question of our jurisdiction to review the order to the hearing of the appeal upon the merits. Ordinarily, in the absence of an abuse of discretion, no appeal lies from an order denying leave to intervene where intervention is a permissive matter within the discretion of the court. United States v. California Canneries, 279 U. S. 553, 556. The permissive nature of such intervention necessarily implies that, if intervention is denied, the applicant is not legally bound or prejudiced by any judgment that might be entered in the case. He is at liberty to assert and protect his interests in some more appropriate proceeding. Having no adverse effect upon the applicant, the order denying intervention accordingly falls below the level of appealability. But where a statute or the practical necessities grant the applicant an absolute right to intervene, the order denying intervention becomes appealable. Then it may fairly be said that the applicant is adversely affected by the denial, there being no other way in which he can better assert the particular interest which warrants intervention" } ]

[ { "docid": "22026237", "title": "", "text": "EASTERBROOK, Circuit Judge. During the 1980s River Bank America lent more than $7 million to SIG Food Services Associates (SFSA), to finance SFSA’s purchase of equipment for a group of Sizzler Family Steakhouses. SFSA leased the equipment to FBN Food Services, Ine., which operated the restaurants. SFSA and FBN had common equity owners: SIG Partners, Quest Equities Corp. (a subsidiary of River Bank), and Anthony Basile. SFSA later borrowed $6.5 million from American National Bank (ANB); River Bank agreed to stand behind ANB in the queue for payment. The business venture was not a success, and for the last six years the equity and debt investors have been fighting for larger shares of the carcass. FBN is being liquidated under Chapter 7 of the Bankruptcy Code. River Bank has filed two appeals: one protests an order that it return $1.4 million as a fraudulent conveyance, and the other complains about a decision by FBN’s trustee that FBN owes some $2.4 million to SFSA. I Litigation often accompanies failure in the marketplace. When it became clear that the restaurants were unprofitable, FBN filed suit against Sizzler Restaurants International, the franchisor. Sizzler counterclaimed, and it also initiated an arbitration against Midwest Restaurant Concepts (MRC), an enterprise affiliated with FBN and SFSA, which had promised (but failed) to indemnify Sizzler against losses arising out of transactions with FBN. In September 1990 everyone sat down to parley, and a bargain was reached. Sizzler would dismiss the MRC arbitration (the firm lacked assets to pay any award), and all counterclaims filed in that arbitration also would be dismissed. Sizzler agreed to pay $4,175,000 to resolve the litigation. In exchange, it wanted releases from FBN, SFSA, MRC, and all of those ventures’ principals — SIG Partners, Basile, Quest Equities, and River Bank (which controlled Quest). The largest share went to SFSA, which transferred two parcels of real estate to Sizzler. Quest and River Bank refused to sign the agreement unless they received $2.125 million. Rather than see the deal collapse, Basile (who spoke for FBN) and Gerald Kaufman (who spoke for SIG Partners) agreed. Sizzler disbursed" }, { "docid": "22032557", "title": "", "text": "Id. Moreover, the bankruptcy court found that the agreement to disburse the settlement funds was not reached by way of an arms-length transaction, but rather, through the coercion of the debtor by a major creditor. Id. The bankruptcy court heard the testimony of B asile, Gregory and Kaufman, and its findings on the nature of the settlement negotiations and the eventual disbursement of the proceeds were fairly supported by this evidence. Finally, the court below found that FBN did not reap any benefit directly from the payment of $1.4 million to River Bank. These funds were initially credited to the River Bank Loan made to SFSA, an obligation on which FBN had no liability. Id. at 688-89. Although this credit could have reduced FBN’s indebtedness to SFSA, this did not occur because the credit to SFSA was subsequently reversed and no amount of the SFSA loan made to FBN was forgiven. In sum, the evidence supported the bankruptcy court’s finding that FBN did not receive reasonably equivalent value in exchange for the $1.4 million payment to River Bank. We therefore defer to this finding and conclude that the trustee demonstrated constructive intent to defraud. D. Limitation on the Trustee’s Recovery Appellant’s final argument is that the trustee should be precluded from recovering the entire $1.4 million payment because any such recovery is limited to the amount of timely filed claims against the estate of the debtor. River Bank goes on to argue that SFSA’s claim of $2.4 million should be excluded on the grounds that it was untimely and would only benefit the insiders of the debtor. At bottom, River Bank seeks to challenge the bankruptcy court’s approval of SFSA’s claim. However, the bankruptcy court previously held that River Bank did not have standing to object to this claim, and this ruling has been affirmed by Judge Conlon. In re FBN Food Servs., No. 93 C 6347, 1995 WL 230958 (N.D.Ill. April 17, 1995). Under the law-of-the-case doctrine, once a court decides a legal issue then that decision is binding on the issue during future stages of the same case." }, { "docid": "22026253", "title": "", "text": "a preference claim, and we respect the parties’ right to choose which issues they will litigate. River Bank contends that it did not receive a fraudulent conveyance because it did not receive any conveyance from FBN. The check was written on Sizzler’s account. To avoid the response that this was just an appointment of income, see In re Kochell, 804 F.2d 84 (7th Cir.1986); In re Compton Corp., 831 F.2d 586, 591-92 (5th Cir.1987) — that FBN told Sizzler, its debtor, to pay River Bank directly, in order to reduce paperwork — River Bank maintains that Sizzler did not owe money to FBN to begin with. It believes that Sizzler’s claims against MRC were strong, while FBN’s claims against Sizzler were weak. Because Sizzler could not possibly have been willing to pay more than $250,000 for the value FBN gave by releasing its claims, River Bank concludes, the balance of the consideration must have been supplied by Quest and River Bank itself, so the money really belonged to River Bank all along, and there has been no “transfer” (fraudulent or otherwise) from FBN. This line of argument has two problems: first, it is irrelevant; second, it is wrong. It is irrelevant because a business mistake by Sizzler (overpaying its adversary in litigation) would not make the payment less real. Suppose FBN found a buyer willing to pay $1.4 million in excess of market value for FBN’s inventory and assets. The money would have belonged to FBN; Basile could not have handed it over to River Bank without committing a fraud on FBN’s creditors. It is wrong because the bankruptcy judge found that Sizzler had not paid anyone except FBN and SFSA. River Bank and Quest did not have any legal claims against Sizzler, so what consideration did they furnish? Neither firm even participated in the mediation. We can see why Sizzler wanted their releases. These investors in SFSA and FBN have demonstrated a willingness to litigate at the drop of a hat. Rational businesses want to cut down on the number of spurious claims they must meet. But promising to" }, { "docid": "22026268", "title": "", "text": "Kaufman, and SIG Partners, this record does not show what will become of any distribution to SFSA from the FBN estate. For all we know, SFSA will turn the money over to ANB as a payment on the loan, and ANB unquestionably has a claim superior to River Bank’s. This uncertainty, coupled with the ambiguities we have identified in the findings related to “actual fraud,” mean that further proceedings lie ahead. When the case returns to the bankruptcy court, the judge should address a series of questions: 1. Did the transfer occur with actual intent to defraud FBN’s creditors (as opposed to an intent to defraud Basile and Kaufman personally, or to defraud FBN’s equity investors)? If the answer is yes, then River Bank has no claim to any amount left over after satisfying FBN’s debts, and this adversary proceeding is at an end. 2. If the transfer is avoided only under § 548(a)(2), then the identity of the distributees via SFSA matters. The court should determine whether payments to SFSA will end up in the hands of Basile, Kaufman, and SIG Partners. If ANB and other outside creditors are the real parties in interest, then again River Bank has no legitimate objection to the trustee’s recognition of SFSA’s claim. 3. If a distribution to SFSA is likely to be redistributed to SFSA’s equity investors, then the court must address two further questions: first, whether the trustee’s recognition of SFSA’s belated claim was proper (recall that this is the question Judge Sonderby originally planned to address once River Bank had become a real rather than a contingent creditor), and, second, if the trustee’s action was proper, whether under Illinois law River Bank takes ahead of the equity investors. At this point the possibility of fraud on Basile and Kaufman personally may reemerge. They can’t give away creditors’ money, but they can give their own equity positions to Quest, another equity owner (and therefore, indirectly, to River Bank); but if Waxman’s arm-twisting was real fraud, as opposed to commercial pressure, then the transfer cannot be understood even as a gift, and" }, { "docid": "22026246", "title": "", "text": "April 1993 Carmel and SFSA filed with the bankruptcy court a stipulation that increased the estate’s obligations by $2.4 million. River Bank’s exposure suddenly leapt to $1.4 million, plus interest. It cried foul, because the agreement came after the bar date and because SFSA’s other investors — the potential beneficiaries of the claim against FBN — were complicit in any fraudulent conveyance. Carmel asserts that SFSA is a secured creditor of FBN, exempt from the filing deadline, see 11 U.S.C. §§ 501, 506, but Judge Sonderby declined to address River Bank’s objections, ruling that it was not (yet) a “party in interest” as 11 U.S.C. § 502(a) uses that term: A claim or interest, proof of which is filed under section 501 of this title, is deemed allowed, unless a party in interest, including a creditor of a general partner in a partnership that is a debtor in a case under chapter 7 of this title, objects. “Party in interest” means “anyone who has a legally protected interest that could be affected by a bankruptcy proceeding”. In re James Wilson Associates, 965 F.2d 160, 169 (7th Cir.1992). Because River Bank had not filed a claim in FBN’s bankruptcy, its stake could not be diluted by payments to SFSA. Judge Sonderby thought that River Bank could become a creditor if ordered to turn over the $1.4 million; in exchange for returning the fraudulent conveyance, River Bank could revive any claim it originally had against FBN. Under § 548(e), a “transferee ... that takes for value and in good faith has a lien on or may retain any interest transferred ... to the extent that such transferee ... gave value to the debtor in exchange”. And “value” includes “satisfaction or securing of a present or antecedent debt”. 11 U.S.C. § 548(d)(2). A defendant in a fraudulent-conveyance action therefore is a contingent creditor of the estate, potentially interested in the value of competing claims. But the bankruptcy judge thought that further analysis should abide decision until the contingency comes to pass. Otherwise adjudication about the validity of competing claims could be advisory. (None" }, { "docid": "22026249", "title": "", "text": "is valid. But the appeal before Judge Conlon must have distracted the parties and Judge Sonderby alike, for no one turned back to the question. Now River Bank has appealed to us from Judge Cordon’s decision and asks us to resolve this dispute independently of the fraudulent-conveyance action. It is hard to see how the two sensibly can be separated; it is impossible to see how we are authorized to resolve the two issues independently. District judges may entertain interlocutory appeals in bankruptcy actions. Courts of appeals, by contrast, may hear appeals only from final decisions. 28 U.S.C. § 158(d). A single bankruptcy ease may comprise many separate controversies, so we have held that a final decision for purposes of § 158(d) is one that would be immediately appealable in a stand-alone action. In re Morse Electric Co., 805 F.2d 262 (7th Cir.1986). The order requiring River Bank to return the $1.4 million meets that description; the order postponing adjudication of River Bank’s objection to SFSA’s claim does not. Decisions about the sequence in which to resolve questions are almost the polar opposite of finality, so Judge Sonderby’s initial treatment of River Bank’s objection to SFSA’s claim cannot be called “final.” Does Judge Cordon’s new ground of decision make it final? We think not, for, if River Bank had prevailed in the fraudulent-conveyance action, it would have had no complaint about Judge Cordon’s decision. Not untd Judge Sonderby held that River Bank had received a fraudulent conveyance did the handling of SFSA’s claim acquire concrete significance. One might say that River Bank’s initial objection to SFSA’s claim cast River Bank in the role of would-be intervenor. As a non-creditor, River Bank had not so far been a party to FBN’s bankruptcy proper— that is, to the core proceedings in the bankruptcy. In order to facilitate its objection to SFSA’s claim, River Bank sought admission, and it was turned away on the ground that it lacked a legal interest. Outside of bankruptcy, an order denying a motion to intervene is immediately appealable. Sam Fox Publishing Co. v. United States, 366 U.S." }, { "docid": "22032559", "title": "", "text": "Christianson v. Colt Indus. Operating Corp., 486 U.S. 800, 815-16, 108 S.Ct. 2166, 2177-78, 100 L.Ed.2d 811 (1988). Because “the doctrine applies as much to the decisions of a coordinate court in the same case as to a court’s own decisions,” id. at 816, 108 S.Ct. at 2177, Judge Conlon’s ruling on this issue should be binding upon us. Accordingly, we reject appellant’s contention that the trustee should not be permitted to recover the entire $1.4 million. III. Conclusion For the reasons set forth above, the decision of the bankruptcy court is affirmed. It is so ordered. . This lengthy discussion of the facts is derived primarily from the opinion of bankruptcy court. Carmel v. River Bank America (In re FBN Food Services, Inc.), 175 B.R. 671 (Bankr.N.D.Ill.1994). Where appropriate, citation to the trial transcript is indicated by \"Trans._” . Although SFSA had an additional shareholder, that entity held only 1% of the outstanding shares of SFSA. A more detailed description of the ownership interests in these companies can be found in the bankruptcy court opinion. 175 B.R. at 676, 692. . Basile, in turn, had borrowed the $100,000 from Quest Equities and executed a promissory note in exchange. . With the commencement of the California arbitration proceedings, MRC was dismissed as a plaintiff from the FBN Litigation and its claims were moved to the arbitration. . Basile believed that MRC had a very weak position in the arbitration, and that its liability to Sizzler was clear cut. Trans. 336-338. Philip Stahl, counsel for River Bank and Quest Equities, agreed that MRC would get \"creamed” in the arbitration. Trans. 1785. . The bankruptcy court found Gregory to be \"especially credible,” given that he was a disinterested witness and testified in a forthright manner. 175 B.R. at 678 n. 12. . Although Kaufman putatively represented FBN and SIG Partners, he also was on the hook to River Bank for approximately $8 to $9 million in guarantees, and thus had a personal interest in resolving the asserted claims. 175 B.R. at 678-79. . This figure was divided into $1.5 million for the" }, { "docid": "18774649", "title": "", "text": "EASTERBROOK, Circuit Judge. First Interstate Commercial Corp. (FICC) tried to intervene in a suit in which it was already a defendant. Instead of gently telling FICC that once is enough, the district court denied the application. FICC immediately appealed, relying on cases characterizing as “final” and appealable denials of intervention as of right. E.g., Sam Fox Publishing Co. v. United States, 366 U.S. 683, 687-88, 81 S.Ct. 1309, 1311-12, 6 L.Ed.2d 604 (1961). The premise of these cases is that the denial of intervention ends the litigation for the would-be intervenor. Because the putative party “cannot appeal from any subsequent order or judgment in the proceeding unless he does intervene, the order denying intervention has the degree of definiteness which supports an appeal”. Brotherhood of Railroad Trainmen v. Baltimore & Ohio R.R., 331 U.S. 519, 524, 67 S.Ct. 1387, 1390, 91 L.Ed. 1646 (1947). A party to the litigation may appeal from any final judgment, so this rationale for an immediate appeal is unavailable. A little background will explain how the case came to its current curious posture. In 1982 Saxony Bar & Tube, Inc., a processor of steel products, was in financial straits. Firms were unwilling to sell it steel on credit. FICC, a factor that had lent substantial sums against the security of Saxony’s inventory and receivables, evidently was unwilling to make new advances. Tenneco Automotive, a division of Tenneco Inc. that makes shock absorbers (among other things), was willing to buy processed steel from Saxony, but Saxony needed to get the steel to process. It made an arrangement with Erlanger & Co., an importer of steel, to obtain the metal from Brazilian sources. Erlanger promised to supply steel; Tenneco promised to take the finished steel from Saxony; FICC, as Saxony’s factor, was to supply the funds Saxony would use to pay for the steel, and FICC would take security interests in the steel and its proceeds. Erlanger and Tenneco signed an additional contract requiring Erlanger to furnish steel against Saxony’s purchase documents, with a side agreement that if Saxony “fails to timely pay invoices ... Tenneco Automotive" }, { "docid": "22026250", "title": "", "text": "to resolve questions are almost the polar opposite of finality, so Judge Sonderby’s initial treatment of River Bank’s objection to SFSA’s claim cannot be called “final.” Does Judge Cordon’s new ground of decision make it final? We think not, for, if River Bank had prevailed in the fraudulent-conveyance action, it would have had no complaint about Judge Cordon’s decision. Not untd Judge Sonderby held that River Bank had received a fraudulent conveyance did the handling of SFSA’s claim acquire concrete significance. One might say that River Bank’s initial objection to SFSA’s claim cast River Bank in the role of would-be intervenor. As a non-creditor, River Bank had not so far been a party to FBN’s bankruptcy proper— that is, to the core proceedings in the bankruptcy. In order to facilitate its objection to SFSA’s claim, River Bank sought admission, and it was turned away on the ground that it lacked a legal interest. Outside of bankruptcy, an order denying a motion to intervene is immediately appealable. Sam Fox Publishing Co. v. United States, 366 U.S. 683, 687-88, 81 S.Ct. 1309, 1311-12, 6 L.Ed.2d 604 (1961). Does this imply that the order rebuffing River Bank is likewise final? No, it does not, because the foundation for immediate appeal when the court rejects an attempt to intervene is that the litigation will continue without the putative intervenor, which will not be entitled to appeal at the end of the case, for it will not then be a party. Brotherhood of Railroad Trainmen v. Baltimore & Ohio R.R., 331 U.S. 519, 524, 67 S.Ct. 1387, 1389-90, 91 L.Ed. 1646 (1947). The order denying intervention is the one and only decision that could ever be appealed. By contrast, River Bank wanted to contest SFSA’s claim precisely because the size of FBN’s debts would affect a later decision in the bankruptcy — a decision to which River Bank would be a party, and from which it could appeal. This right to appeal shows that the earlier decision was not conclusive, and hence not appealable. Tenneco Inc. v. Saxony Bar & Tube, Inc., 776 F.2d 1375" }, { "docid": "22032537", "title": "", "text": "parties. After receiving releases from all the parties involved in the FBN Litigation and MRC Arbitration, Sizzler paid out the settlement proceeds to FBN, SFSA, River Bank and Quest Equities. Although Quest Equities was to be paid $1.5 million, the payment from Sizzler was deposited into a River Bank account. After deducting $100,000 for the payment of FBN’s legal expenses, River Bank then applied the remaining $1.4 million to ward the principal amount of the River Bank Loan to SFSA. Upon learning of the crediting of the River Bank Loan, ANB brought suit against River Bank for breach of the intercreditor agreement. In particular, ANB alleged that the $1.4 million credit violated River Bank’s agreement to subordinate the River Bank Loan to ANB’s loan. The parties eventually settled the dispute in 1991, whereby River Bank agreed to transfer its $7.5 million mortgage note to ANB, acknowledge that it had credited the River Bank Loan with the $1.4 million payment, and reverse the credit. In the meantime, FBN was forced into a Chapter 7 bankruptcy by three of its other creditors. On July 9, 1992, the Trustee filed this adversary proceeding against River Bank, Quest Equities and Quest Realty, seeking to avoid and recover the $1.4 million transfer. After hearing three weeks of evidence and reviewing post-trial memoranda, the bankruptcy court avoided the $1.4 million transfer as a fraudulent conveyance and ordered River Bank to return the funds to the debtor. II. Discussion Appellant raises several objections to the factual and legal conclusions of the bankruptcy court. We review the factual findings of the court below for clear error, and its legal conclusions de novo. Fed.R.Bankr.P. 8013; Meyer v. Rigdon, 36 F.3d 1375, 1378 (7th Cir.1994). The primary focus of this appeal is the proper interpretation of 11 U.S.C. § 548(a) and its applicability to the $1.4 million transfer at issue. A. Transfer of an Interest of the Debtor in Property Appellant first attacks the bankruptcy court’s conclusion that the $1.4 million payment from Sizzler to River Bank effected a “transfer of an interest of the debtor in property.” 11 U.S.C." }, { "docid": "22026251", "title": "", "text": "683, 687-88, 81 S.Ct. 1309, 1311-12, 6 L.Ed.2d 604 (1961). Does this imply that the order rebuffing River Bank is likewise final? No, it does not, because the foundation for immediate appeal when the court rejects an attempt to intervene is that the litigation will continue without the putative intervenor, which will not be entitled to appeal at the end of the case, for it will not then be a party. Brotherhood of Railroad Trainmen v. Baltimore & Ohio R.R., 331 U.S. 519, 524, 67 S.Ct. 1387, 1389-90, 91 L.Ed. 1646 (1947). The order denying intervention is the one and only decision that could ever be appealed. By contrast, River Bank wanted to contest SFSA’s claim precisely because the size of FBN’s debts would affect a later decision in the bankruptcy — a decision to which River Bank would be a party, and from which it could appeal. This right to appeal shows that the earlier decision was not conclusive, and hence not appealable. Tenneco Inc. v. Saxony Bar & Tube, Inc., 776 F.2d 1375 (7th Cir.1985). As if to demonstrate that its appeal from Judge Conlon’s decision was premature, River Bank argued to Judge Aspen that it should not have to cough up the whole $1.4 million, because FBN’s bona fide debts were only $450,000. Judge Aspen rejected that contention under the law of the case; he was (rightly) unwilling to reexamine Judge Conlon’s decision. 185 B.R. at 277. But the law of the case does not prevent a superior court from adjudicating the whole controversy. In re Reliable Drug Stores, Inc., 70 F.3d 948, 951 (7th Cir.1995); Cohen v. Bucci, 905 F.2d 1111, 1112 (7th Cir.1990). AH of River Bank’s arguments about FBN’s debts (if any) to SFSA therefore are before us, but on the appeal from Judge Aspen, not the appeal from Judge Conlon. Ill At last we arrive at the central question: was there a fraudulent conveyance? One might suppose the principal question would be whether River Bank received a preference; it tried to jump the queue of creditors. But the trustee raised and then abandoned" }, { "docid": "22026267", "title": "", "text": "735 F.2d 740, 742 (2d Cir.1984); Whiteford Plastics Co. v. Chase National Bank, 179 F.2d 582 (2d Cir.1950). Cf. Granfinanciera, S.A. v. Nordberg, 492 U.S. 33, 60, 109 S.Ct. 2782, 2800, 106 L.Ed.2d 26 (1989) (remarking on the relation between the common law and the Code’s treatment of fraudulent conveyances). We think these cases correctly decided. They are wholly consistent with In re Acequia, Inc., 34 F.3d 800, 811 (9th Cir.1994), a case under § 544(b) on which the trustee heavily relies. Acequia holds that the trustee’s recovery is not limited to the amount of debt senior to the defendant in the preference-recovery action. See Moore v. Bay, 284 U.S. 4, 52 S.Ct. 3, 76 L.Ed. 133 (1931). It has nothing to do with identifying who gets how much when the estate distributes its assets. V River Bank believes that state law puts it ahead of SFSA in the queue for payment, but it would be premature to pursue this argument to a conclusion. Although River Bank treats SFSA as if it were just Basile, Kaufman, and SIG Partners, this record does not show what will become of any distribution to SFSA from the FBN estate. For all we know, SFSA will turn the money over to ANB as a payment on the loan, and ANB unquestionably has a claim superior to River Bank’s. This uncertainty, coupled with the ambiguities we have identified in the findings related to “actual fraud,” mean that further proceedings lie ahead. When the case returns to the bankruptcy court, the judge should address a series of questions: 1. Did the transfer occur with actual intent to defraud FBN’s creditors (as opposed to an intent to defraud Basile and Kaufman personally, or to defraud FBN’s equity investors)? If the answer is yes, then River Bank has no claim to any amount left over after satisfying FBN’s debts, and this adversary proceeding is at an end. 2. If the transfer is avoided only under § 548(a)(2), then the identity of the distributees via SFSA matters. The court should determine whether payments to SFSA will end up in" }, { "docid": "22026252", "title": "", "text": "(7th Cir.1985). As if to demonstrate that its appeal from Judge Conlon’s decision was premature, River Bank argued to Judge Aspen that it should not have to cough up the whole $1.4 million, because FBN’s bona fide debts were only $450,000. Judge Aspen rejected that contention under the law of the case; he was (rightly) unwilling to reexamine Judge Conlon’s decision. 185 B.R. at 277. But the law of the case does not prevent a superior court from adjudicating the whole controversy. In re Reliable Drug Stores, Inc., 70 F.3d 948, 951 (7th Cir.1995); Cohen v. Bucci, 905 F.2d 1111, 1112 (7th Cir.1990). AH of River Bank’s arguments about FBN’s debts (if any) to SFSA therefore are before us, but on the appeal from Judge Aspen, not the appeal from Judge Conlon. Ill At last we arrive at the central question: was there a fraudulent conveyance? One might suppose the principal question would be whether River Bank received a preference; it tried to jump the queue of creditors. But the trustee raised and then abandoned a preference claim, and we respect the parties’ right to choose which issues they will litigate. River Bank contends that it did not receive a fraudulent conveyance because it did not receive any conveyance from FBN. The check was written on Sizzler’s account. To avoid the response that this was just an appointment of income, see In re Kochell, 804 F.2d 84 (7th Cir.1986); In re Compton Corp., 831 F.2d 586, 591-92 (5th Cir.1987) — that FBN told Sizzler, its debtor, to pay River Bank directly, in order to reduce paperwork — River Bank maintains that Sizzler did not owe money to FBN to begin with. It believes that Sizzler’s claims against MRC were strong, while FBN’s claims against Sizzler were weak. Because Sizzler could not possibly have been willing to pay more than $250,000 for the value FBN gave by releasing its claims, River Bank concludes, the balance of the consideration must have been supplied by Quest and River Bank itself, so the money really belonged to River Bank all along, and there has" }, { "docid": "22032545", "title": "", "text": "cash payment of $4,175,000. All of this money went to benefit FBN, except for the $1.4 million payment to River Bank and the $1.5 million payment to SFSA for two parcels of real estate. Notwithstanding the fact that FBN did not write the cheek to River Bank or exercise control over the funds, this money was properly considered by the bankruptcy court to be “property” of the debtor. Appellant’s citation to In re Chase & Sanborn Corp. is unavailing. In that case, the funds in question came from the debtor’s president, and were only passed in and out of the debtor’s bank accounts in order to facilitate a money laundering scheme. The Eleventh Circuit refused to hold that such funds were property of the debtor because the debtor never had the right to control their disbursement, and thus their transfer out of the debtor’s accounts did not actually deplete the assets of the estate. 813 F.2d at 1181-82 (characterizing connection between funds and debtor as “quite tangential”). By contrast, the funds in the instant case were exchanged for the release of claims owned by the debt- or, and thus these proceeds had an undeniably strong nexus to the debtor. The fact that FBN did not actually cut the check that River Bank deposited into its own account does not undermine the bankruptcy court’s conclusion that the debtor actually had an interest in the property. Cf. Bowers-Siemon Chemicals Co. v. H.L. Blachford, Ltd. (In re Bowers-Siemon Chemicals Co.), 139 B.R. 436, 443 (Bankr.N.D.Ill.1992) (distinguishing In re Chase & Sanborn Corp.). Finally, appellant challenges a number of the bankruptcy court’s evidentiary rulings. In order to prevail on these objections, however, River Bank must overcome the heavy burden of demonstrating that the bankruptcy court abused its discretion in excluding the evidence. Thompson v. Boggs, 33 F.3d 847, 854 (7th Cir.1994), cert. denied, - U.S. -, 115 S.Ct. 1692, 131 L.Ed.2d 556 (1995). “[T]he abuse of discretion standard is met only when the trial judge’s ‘decision is based on an erroneous conclusion of law or where the record contains no evidence on which he" }, { "docid": "22032558", "title": "", "text": "to River Bank. We therefore defer to this finding and conclude that the trustee demonstrated constructive intent to defraud. D. Limitation on the Trustee’s Recovery Appellant’s final argument is that the trustee should be precluded from recovering the entire $1.4 million payment because any such recovery is limited to the amount of timely filed claims against the estate of the debtor. River Bank goes on to argue that SFSA’s claim of $2.4 million should be excluded on the grounds that it was untimely and would only benefit the insiders of the debtor. At bottom, River Bank seeks to challenge the bankruptcy court’s approval of SFSA’s claim. However, the bankruptcy court previously held that River Bank did not have standing to object to this claim, and this ruling has been affirmed by Judge Conlon. In re FBN Food Servs., No. 93 C 6347, 1995 WL 230958 (N.D.Ill. April 17, 1995). Under the law-of-the-case doctrine, once a court decides a legal issue then that decision is binding on the issue during future stages of the same case. Christianson v. Colt Indus. Operating Corp., 486 U.S. 800, 815-16, 108 S.Ct. 2166, 2177-78, 100 L.Ed.2d 811 (1988). Because “the doctrine applies as much to the decisions of a coordinate court in the same case as to a court’s own decisions,” id. at 816, 108 S.Ct. at 2177, Judge Conlon’s ruling on this issue should be binding upon us. Accordingly, we reject appellant’s contention that the trustee should not be permitted to recover the entire $1.4 million. III. Conclusion For the reasons set forth above, the decision of the bankruptcy court is affirmed. It is so ordered. . This lengthy discussion of the facts is derived primarily from the opinion of bankruptcy court. Carmel v. River Bank America (In re FBN Food Services, Inc.), 175 B.R. 671 (Bankr.N.D.Ill.1994). Where appropriate, citation to the trial transcript is indicated by \"Trans._” . Although SFSA had an additional shareholder, that entity held only 1% of the outstanding shares of SFSA. A more detailed description of the ownership interests in these companies can be found in the bankruptcy court" }, { "docid": "22032531", "title": "", "text": "MEMORANDUM OPINION AND ORDER ASPEN, Chief Judge: The bankruptcy court below found that appellant River Bank America (“River Bank”) had received a fraudulent conveyance of $1.4 million from the debtor FBN Food Services, Inc. (“FBN”). The court avoided the $1.4 million transfer and granted Trustee James Carmel’s (“Trustee”) request to recover the funds, plus prejudgment and post-judgment interest. River Bank appeals that decision, arguing (1) that the transferred funds were never “property of the debtor,” (2) that River Bank was not shown to have committed actual or constructive fraud, and (3) that, in any event, the Trustee should not be entitled to recover more than the total amount of legitimate claims filed in the bankruptcy court. We affirm the decision of the bankruptcy court in all respects. I. Background The underlying bankruptcy proceeding arises out of the operation of Sizzler restaurant franchises by FBN, Midwest Restaurant Concepts (“MRC”), and SIG Food Services Associates (“SFSA”). All three companies were owned by the same entities: SIG Partners, Quest Equities Corporation (“Quest Equities”) and Anthony Basile. Quest Equities was a wholly owned subsidiary of appellant River Bank, and SIG Partners was a New York general partnership owned by Stuart Seigel, Irwin Cohen and Gerald Kaufman. Basile, president of FBN, was responsible for the operation of FBN’s Sizzler restaurant franchises, and, along with Kaufman, had personally guaranteed FBN’s obligations to Sizzler. MRC leased the restaurant facilities and fixtures directly from Sizzler, and its obligations under these leases were guaranteed by FBN, Basile and Kaufman. In contrast, FBN leased its restaurant facilities and fixtures from SFSA. In order to acquire these hard assets, SFSA obtained a $7.5 million unsecured loan from River Bank (“River Bank Loan”) in 1987, as well as a $100,000 loan from Basile. An additional $6.5 million loan was acquired from American National Bank & Trust Company of Chicago (“ANB”) in 1988; however, in order to secure this financing River Bank was required to subordinate the River Bank Loan to ANB pursuant to an intercreditor agreement. Soon after receiving the initial River Bank Loan, SFSA defaulted. River Bank’s president Avrum Waxman sought" }, { "docid": "22026245", "title": "", "text": "received value indirectly (because the payment would have reduced FBN’s obligations to SFSA). But once River Bank reversed the credit and signed SFSA’s unreduced notes over to ANB, neither FBN nor SFSA received any value from the transfer. Judge Sonderby of the bankruptcy court held a three-week trial and concluded that the $1.4 million was a fraudulent conveyance under both § 548(a)(1) (actual fraud) and § 548(a)(2) (constructive fraud). 175 B.R. 671 (Bankr.N.D.Ill.1994). The appeal went to Chief Judge Aspen, who affirmed after concluding that none of the dispositive findings of fact is clearly erroneous. 185 B.R. 265 (N.D.Ill.1995). II Shortly before the trial, Judge Son-derby dashed River Bank’s principal hope for damage control. By the filing deadline in December 1991, only $450,000 in claims had been made against FBN. As River Bank saw things, this meant that its exposure in the fraudulent conveyance action was only $450,-000: the estate could recover no more than was necessary to pay its debts. (Whether this is a correct understanding is a subject to which we return.) In April 1993 Carmel and SFSA filed with the bankruptcy court a stipulation that increased the estate’s obligations by $2.4 million. River Bank’s exposure suddenly leapt to $1.4 million, plus interest. It cried foul, because the agreement came after the bar date and because SFSA’s other investors — the potential beneficiaries of the claim against FBN — were complicit in any fraudulent conveyance. Carmel asserts that SFSA is a secured creditor of FBN, exempt from the filing deadline, see 11 U.S.C. §§ 501, 506, but Judge Sonderby declined to address River Bank’s objections, ruling that it was not (yet) a “party in interest” as 11 U.S.C. § 502(a) uses that term: A claim or interest, proof of which is filed under section 501 of this title, is deemed allowed, unless a party in interest, including a creditor of a general partner in a partnership that is a debtor in a case under chapter 7 of this title, objects. “Party in interest” means “anyone who has a legally protected interest that could be affected by a bankruptcy" }, { "docid": "22026248", "title": "", "text": "of FBN’s existing creditors objected to the recognition of SFSA’s claim.) Unwilling to wait for the outcome of the fraudulent conveyance action, River Bank immediately appealed to the district court and soon rued its decision. Judge Conlon affirmed on a different ground. She concluded that River Bank is not a “party in interest” because it is not a contingent creditor. As Judge Conlon saw things, a fraudulent conveyance is “void,” and the estate in bankruptcy therefore may retain the whole transfer even if it produces a dividend for equity investors — and even if the equity investors are the real authors of the fraud. The fraudulent-conveyance proceeding came to a conclusion in the bankruptcy court before Judge Conlon rendered her decision. Under Judge Sonderby’s approach, the conclusion that River Bank had received a fraudulent conveyance turned a contingent creditor into a real creditor, which should have revived the questions whether FBN owed Quest or River Bank anything at the time of the Sizzler settlement, and, if yes, whether the settlement between trustee Carmel and SFSA is valid. But the appeal before Judge Conlon must have distracted the parties and Judge Sonderby alike, for no one turned back to the question. Now River Bank has appealed to us from Judge Cordon’s decision and asks us to resolve this dispute independently of the fraudulent-conveyance action. It is hard to see how the two sensibly can be separated; it is impossible to see how we are authorized to resolve the two issues independently. District judges may entertain interlocutory appeals in bankruptcy actions. Courts of appeals, by contrast, may hear appeals only from final decisions. 28 U.S.C. § 158(d). A single bankruptcy ease may comprise many separate controversies, so we have held that a final decision for purposes of § 158(d) is one that would be immediately appealable in a stand-alone action. In re Morse Electric Co., 805 F.2d 262 (7th Cir.1986). The order requiring River Bank to return the $1.4 million meets that description; the order postponing adjudication of River Bank’s objection to SFSA’s claim does not. Decisions about the sequence in which" }, { "docid": "22026260", "title": "", "text": "in his role as equity holder (and creditor of SFSA) than he could gain in his role as Quest’s debtor. Most likely the bankruptcy and district judges were well aware of this, but thought the actual financial pressure impermissible nonetheless: Basile’s note had been forgiven, so Waxman’s statements amounted to a threat to file frivolous (but costly) litigation, which no one has a right to do (see Bill Johnson’s Restaurants, Inc. v. NLRB, 461 U.S. 731, 741-44, 103 S.Ct. 2161, 2168-71, 76 L.Ed.2d 277 (1983); Premier Electrical Construction Co. v. National Electrical Contractors As-s’n, Inc., 814 F.2d 358, 371-72 (7th Cir.1987)); and Kaufman’s guarantees did not cover either FBN’s or SFSA’s debts to River Bank, so Waxman’s pressure on him induced SIG Partners’ agent to abandon the interests of his principal. Because neither judge drew this line explicitly, however, and because both judges’ opinions can be read to condemn, as fraudulent, any effort to collect a debt by reminding the debtor’s managers that payment is in their personal interest, we are reluctant to affirm the judgment on a § 548(a)(1) theory. That subsection nonetheless remains available if it turns out to matter when the time comes to distribute FBN’s assets. If there was only constructive fraud under § 548(a)(2) — if, that is, the payment was designed to preserve the principals’ commercial reputations even in the absence of a legal obligation to pay, or if the money was a gift by a generous FBN, like the charitable contribution in Scholes v. Lehmann, 56 F.3d 750 (7th Cir.1995) — then, River Bank believes, it is entitled to any surplus remaining after full payment to FBN’s bona fide outside creditors, the $450,000 in claims that were timely filed (plus interest and the costs of administration). A transfer from FBN is really from its equity owners (who can part with then-money, but not with trade creditors’). Ba-sile, Kaufman, and SIG Partners parted with the money for their own reasons. So if money remains, and the trustee can pay either River Bank or SFSA then, River Bank insists, the trustee should give it the" }, { "docid": "22026247", "title": "", "text": "proceeding”. In re James Wilson Associates, 965 F.2d 160, 169 (7th Cir.1992). Because River Bank had not filed a claim in FBN’s bankruptcy, its stake could not be diluted by payments to SFSA. Judge Sonderby thought that River Bank could become a creditor if ordered to turn over the $1.4 million; in exchange for returning the fraudulent conveyance, River Bank could revive any claim it originally had against FBN. Under § 548(e), a “transferee ... that takes for value and in good faith has a lien on or may retain any interest transferred ... to the extent that such transferee ... gave value to the debtor in exchange”. And “value” includes “satisfaction or securing of a present or antecedent debt”. 11 U.S.C. § 548(d)(2). A defendant in a fraudulent-conveyance action therefore is a contingent creditor of the estate, potentially interested in the value of competing claims. But the bankruptcy judge thought that further analysis should abide decision until the contingency comes to pass. Otherwise adjudication about the validity of competing claims could be advisory. (None of FBN’s existing creditors objected to the recognition of SFSA’s claim.) Unwilling to wait for the outcome of the fraudulent conveyance action, River Bank immediately appealed to the district court and soon rued its decision. Judge Conlon affirmed on a different ground. She concluded that River Bank is not a “party in interest” because it is not a contingent creditor. As Judge Conlon saw things, a fraudulent conveyance is “void,” and the estate in bankruptcy therefore may retain the whole transfer even if it produces a dividend for equity investors — and even if the equity investors are the real authors of the fraud. The fraudulent-conveyance proceeding came to a conclusion in the bankruptcy court before Judge Conlon rendered her decision. Under Judge Sonderby’s approach, the conclusion that River Bank had received a fraudulent conveyance turned a contingent creditor into a real creditor, which should have revived the questions whether FBN owed Quest or River Bank anything at the time of the Sizzler settlement, and, if yes, whether the settlement between trustee Carmel and SFSA" } ]

[ { "docid": "22135552", "title": "", "text": "contention on appeal is that, under the Fair Housing Act Amendments, 42 U.S.C. § 3613(c)(2), and judicial decisions such as Christiansburg Garment Co. v. Equal Employment Opportunity Comm’n, 434 U.S. 412, 98 S.Ct. 694, 54 L.Ed.2d 648 (1978), prevailing defendants should not be awarded attorney’s fees unless the district court finds that a plaintiffs case is frivolous, groundless, or unreasonable. The Barilows primarily contend that the issue is not properly before us since the Fosters failed to raise this issue in the district court. A In general, “[tissues not presented to the district court but raised for the first time on appeal are not properly before the court.” J.C. Wyckoff & Associates, Inc. v. Standard Fire Ins. Co., 936 F.2d 1474, 1488 (6th Cir.1991). We have, on occasion, deviated from the general rale in “ ‘exceptional cases or particular circumstances’ or when the rale would produce ‘a plain miscarriage of justice.’” Pinney Dock and Transport Co. v. Penn Central Corp., 838 F.2d 1445, 1461 (6th Cir.), cert. denied, 488 U.S. 880, 109 S.Ct. 196, 102 L.Ed.2d 166 (1988) (citation omitted) (quoting Hormel v. Helvering, 312 U.S. 552, 557, 558, 61 S.Ct. 719, 721, 722, 85 L.Ed. 1037 (1941)). See Singleton v. Wulff, 428 U.S. 106, 121, 96 S.Ct. 2868, 2877, 49 L.Ed.2d 826 (1976). The exceptions to the general rale are narrow. For example, we stated in Pinney Dock that we may reach an issue if it “is presented with sufficient clarity and completeness” for the court to resolve the issue. Pinney Dock, 838 F.2d at 1461. The Pinney Dock exception is most commonly applied where the issue is one of law, and further development of the record is unnecessary. See, e.g., In re Allied Supermarkets, Inc., 951 F.2d 718 (6th Cir.1991). The rationale for this exception is to promote finality in the litigation process. Pinney Dock, 838 F.2d at 1461. The Fosters’ case does not fall within the Pinney Dock exception. First, the issue was not developed with “sufficient clarity and completeness” in the district court, because the Fosters failed to respond in any way to the Barilows’ motion" } ]

[ { "docid": "11868392", "title": "", "text": "Entm’t, Inc., 508 F.3d 348, 360 (6th Cir.2007); Ivory v. Jackson, 509 F.3d 284, 297 (6th Cir.2007). “Abuse of discretion is defined as a definite and firm conviction that the trial court committed a clear error of judgment.” Scottsdale Ins. Co. v. Flowers, 513 F.3d 546, 554 (6th Cir.2008) (quoting Tahfs v. Proctor, 316 F.3d 584, 593 (6th Cir.2003)). III. DISCUSSION On appeal, Poteet raises two claims. First, Poteet challenges the district court’s dismissal of her complaint as jurisdiction-ally barred by the FCA’s public disclosure rule and first-to-file provision. Second, Poteet contends that the district court abused its discretion when it failed to grant her motion for discovery and when it failed to conduct an evidentiary hearing before dismissing her complaint. We consider each of these arguments in turn. A. Dismissal of Poteet’s Complaint Poteet’s primary argument on appeal is that the district court erred in finding her q%d tam action to be jurisdictionally barred by both the FCA’s public disclosure rule and its first-to-file provision. On de novo review, we find the first-to-file rule technically inapplicable to Poteet’s complaint. However, we agree with the district court that Poteet’s complaint is jurisdictionally barred by the public disclosure provision, and accordingly affirm the district court’s dismissal of Poteet’s suit on that basis. 1. Public Disclosure Rule The FCA’s public disclosure provision, 31 U.S.C. § 3730(e)(4)(A), “limits the subject matter jurisdiction of federal courts over qui tam actions based upon previously disclosed information.” Walburn, 431 F.3d at 973; see also Rockwell Int’l Corp. v. United States, 549 U.S. 457, 127 S.Ct. 1397, 1405-06, 167 L.Ed.2d 190 (2007). Specifically, § 3730(e)(4)(A) provides: No court shall have jurisdiction over an action under this section based upon the public disclosure of allegations or transactions in a criminal, civil, or administrative hearing, in a congressional, administrative, or Government Accounting Office report, hearing, audit, or investigation, or from the news media, unless the action is brought by the Attorney General or the person bringing the action is an original source of the information. 31 U.S.C. § 3730(e)(4)(A). Section 3730(e)(4)(B) defines “original source” as “an individual who has" }, { "docid": "15005407", "title": "", "text": "imposes a three-year limitation period on Rice’s ERISA claim. We have upheld a limitations period of three years as reasonable numerous times. See, e.g., Med. Mut. of Ohio, 548 F.3d at 390; Morrison v. Marsh & McLennan Cos., 439 F.3d 295, 301-03 (6th Cir.2006). The dispute arises over the date on which the three-year limitations period began to run. Rice initially argued before the district court that his claim accrued on September 24, 2003, the date of Jefferson Pilot’s third denial of his application for benefits. The district court viewed the facts in the light most favorable to Rice and agreed that the accrual date was September 24, 2003. Rice, 2008 WL 4059885, at *6. On appeal, Rice now argues that the accrual date was April 20, 2005, the date on which Jefferson Pilot denied his claim after the parties had stayed the district court litigation. Jefferson Pilot claims that Rice waived this argument by failing to raise it before the district court. In determining whether an argument is waived, the “general rule [is] that an issue not raised before the district court is not properly before us.” Foster v. Barilow, 6 F.3d 405, 409 (6th Cir.1993). We have found that this general policy is justified by two main policy goals: “First, the rule eases appellate review by having the district court first consider the issue. Second, the rule ensures fairness to litigants by preventing surprise issues from appearing on appeal.” Scottsdale Ins. Co. v. Flowers, 513 F.3d 546, 552 (6th Cir.2008) (internal citations and quotation marks omitted). Only in “exceptional cases or particular circumstances or when the rule would produce a plain miscarriage of justice,” id. (quoting Foster, 6 F.3d at 407 (internal quotation marks omitted)), do we exercise our discretion to entertain arguments not raised before the district court. In this ease, Rice not only failed to argue that the accrual date was April 20, 2005, before the district court, but he vehemently argued that his claim accrued on a different date — September 24, 2003. Furthermore, the district court, “errfing] on the side of caution,” agreed to" }, { "docid": "20736899", "title": "", "text": "c.Manner of the Searches The Marcilises also attacked the manner of the searches, alleging that the police officers unreasonably damaged property during the searches. As we have noted, Hill v. McIntyre, 884 F.2d 271, 278 (6th Cir.1989) (citations and internal quotation marks and modifications omitted) (first alteration in original), Of course, officers executing search warrants must often damage property in order to perform their duty.... [T]he standard is reasonableness, and in a § 1983 action the District Court must determine not whether destruction was reasonably necessary to effectively execute a search warrant but whether the plaintiff has raised factual issues to be submitted to the jury on this point. The Marcilises did not raise this issue before the district court, presenting neither argument nor legal citation before the district court on the issue of property damage. Generally, “an argument not raised before the district court is waived on appeal to this Court.” Scottsdale Ins. Co. v. Flowers, 513 F.3d 546, 552 (6th Cir.2008); Foster v. Barilow, 6 F.3d 405, 406 (6th Cir.1993). There are narrow exceptions to this rule that do not apply here and we have “rarely” exercised our discretion to depart from the rule, Scottsdale Ins. Co., 513 F.3d at 552. We decline to do so here. Further, though the Marcilises included factual allegations that police damaged property during the search, they did not include legal argument on the theory they now present on appeal. For these reasons, we find that the Marcilises have waived their right to argue this claim on appeal. d.Scope of the Seizure The Marcilises also argue that the police officers violated the Marcilises’ Fourth Amendment rights during the searches by seizing property in excess of the scope of the search warrant. “It is well-settled that items to be seized pursuant to a search warrant must be described with particularity.... However, ... even evidence not described in a search warrant may be seized if it is reasonably related to the offense which formed the basis for the search warrant.” United States v. Wright, 343 F.3d 849, 863 (6th Cir.2003) (citation and internal quotation marks" }, { "docid": "11868391", "title": "", "text": "timely followed. II. STANDARD OF REVIEW We review de novo a district court’s dismissal of an FCA case for lack of subject matter jurisdiction. Walburn, 431 F.3d at 969; accord United States ex rel. McKenzie v. BellSouth Telecommunications, Inc., 123 F.3d 935, 938 (6th Cir.1997). Because federal courts are courts of limited jurisdiction, the relator bears the burden of establishing a court’s subject matter jurisdiction over her FCA claim. Walburn, 431 F.3d at 969; McKenzie, 123 F.3d at 938. The basis for jurisdiction must be apparent from the facts existing at the time the complaint is brought. See Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 94-95, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998); Smith v. Sperling, 354 U.S. 91, 93 n. 1, 77 S.Ct. 1112, 1 L.Ed.2d 1205 (1957) (“The jurisdiction of the Court depends upon the state of things at the time of the action brought.”). We review a district court’s decisions regarding discovery requests and the conducting of evidentiary hearings for abuse of discretion. See Popovich v. Sony Music Entm’t, Inc., 508 F.3d 348, 360 (6th Cir.2007); Ivory v. Jackson, 509 F.3d 284, 297 (6th Cir.2007). “Abuse of discretion is defined as a definite and firm conviction that the trial court committed a clear error of judgment.” Scottsdale Ins. Co. v. Flowers, 513 F.3d 546, 554 (6th Cir.2008) (quoting Tahfs v. Proctor, 316 F.3d 584, 593 (6th Cir.2003)). III. DISCUSSION On appeal, Poteet raises two claims. First, Poteet challenges the district court’s dismissal of her complaint as jurisdiction-ally barred by the FCA’s public disclosure rule and first-to-file provision. Second, Poteet contends that the district court abused its discretion when it failed to grant her motion for discovery and when it failed to conduct an evidentiary hearing before dismissing her complaint. We consider each of these arguments in turn. A. Dismissal of Poteet’s Complaint Poteet’s primary argument on appeal is that the district court erred in finding her q%d tam action to be jurisdictionally barred by both the FCA’s public disclosure rule and its first-to-file provision. On de novo review, we find the first-to-file rule" }, { "docid": "23610065", "title": "", "text": "Green, 239 F.3d 793, 799 (6th Cir.2001) (observing that “the fundamental tenor of the Rules is one of liberality rather than technicality”) (citation and quotation marks omitted). Tucker’s argument, however, misses the mark. If her case had been dismissed for failure to state a claim under Rule 12(b)(6) of the Federal Rules of Civil Procedure, then we would indeed be governed by the liberal notice-pleading requirements that she invokes in her brief. See Minger, 239 F.3d at 799-800 (applying the “extremely modest standard” of Rule 12(b)(6) in evaluating a complaint and reversing the district court’s dismissal of the case). But Tucker’s case was disposed of at the summary judgment stage, nearly two years after Tucker filed her complaint. This difference in timing is crucial. A motion to dismiss typically occurs early in the course of litigation, well before discovery has been completed. See Yuhasz v. Brush Wellman, Inc., 341 F.3d 559, 566 (6th Cir.2003) (“The very purpose of Fed.R.Civ.P. 12(b)(6) is to enable defen dants to challenge the legal sufficiency of complaints without subjecting themselves to discovery.”) (citation and quotation marks omitted). In contrast, a motion for summary judgment may not be granted until a plaintiff has had an opportunity for discovery. And if a plaintiff decides to advance a new claim as a result of such discovery, liberal amendment of the complaint is provided for by Rule 15(a) of the Federal Rules of Civil Procedure, which states that leave to amend the complaint “shall be freely given when justice so requires.” The Federal Rules of Civil Procedure therefore provide for liberal notice pleading at the outset of the litigation because “[t]he provisions for discovery are so flexible” that, by the time a case is ready for summary judgment, “the gravamen of the dispute [has been] brought frankly into the open for inspection by the court.” Swierkiewicz v. Sorema N.A., 534 U.S. 506, 512-13, 122 S.Ct. 992, 152 L.Ed.2d 1 (2002) (noting that the “simplified notice pleading standard relies on liberal discovery rules and summary judgment motions to define disputed facts and issues and to dispose of unmeritorious claims”) (citation" }, { "docid": "16972369", "title": "", "text": "settled in bad faith, it argued that the bad faith issue was not ripe for review until the court determined whether GAIC had a right to settle Bailey’s claims. The district court granted summary judgment to GAIC, finding that GAIC had that right under the Agreement and awarding damages for the indemnification claim. Despite Bailey’s position that a bad faith defense was not yet ripe, the court considered and rejected Bailey’s bad faith argument; finding that Bailey’s argument was based only on its disagreement with the settlement amount. Bailey timely appealed, contesting only the bad faith finding. II. ANALYSIS We review grants of summary judgment de novo. V & M Star Steel v. Centimark Corp., 678 F.3d 459, 465 (6th Cir. 2012). “Summary judgment is appropriate only when the evidence, taken in the light most favorable to the nonmoving party, establishes that theré is no genuine issue as to any material fact and the movant is entitled to judgment as a matter of law.” Id. (citing Fed. R. Civ. P. 56(c)). As a federal court hearing a breach of contract claim based upon diversity jurisdiction, we apply the choice of law rules of the forum state, Michigan, NILAC Int’l Mktg. Grp. v. Ameritech Servs., Inc., 362 F.3d 354, 358 (6th Cir. 2004). The contract at issue here, the Agreement, has no choice-of-law provision, so Michigan courts would apply Michigan law unless an exception applied. Id. Since no exception applies, Michigan law governs the interpretation of the Agreement. A. Waiver As a threshold matter, we must determine whether Bailey waived its bad faith argument. “[0]rdinarily an appellate court does not give consideration to issues not raised below.” Smoot v. United Transp. Union, 246 F.3d 633, 648 n.7 (6th Cir. 2001) (quoting Hormel v. Helvering, 312 U.S. 552, 556, 61 S.Ct. 719, 85 L.Ed. 1037 (1941)). The two main purposes of the waiver rule are to ease appellate review by ensuring that district courts consider issues first, and to prevent surprise to litigants. See Scottsdale Ins. Co. v. Flowers, 513 F.3d 546, 552 (6th Cir. 2008). Waiver is a close question in" }, { "docid": "14210282", "title": "", "text": "appeal. ‘ Therefore, Thomas has waived his right to challenge the district court’s'ruling in this regard. See Scottsdale Ins. Co. v. Flowers, 513 F.3d 546, 552 (6th Cir.2008) (“[A]n argument not raised before the district court is Waived on appeal to * this Court.”); Middlebrook v. City of Bartlett, 103 Fed.Appx. 560, 562 (6th Cir.2004) (“The failure to present an argument in an appellate brief waives appellate review.”) (citation omitted). But even if Thomas had not waived his challenge to this ruling, we would still affirm the district court’s decision. Wilson’s tworpage report did not meet Rule 26(a)(2)(B)(i)’s requirement that an expert report be “a complete statement of all opinions the witness, will express and the basis and reasons for them.” Fed.R.Civ,P. 26(a)(2)(B)®. Rule 37(c)(1) states that “[i]f a party fails to provide information or identify a witness as required by Rule 26(a) or (e), the -party is not allowed to use that information or witness to supply evidence on a motion, at a hearing, or at a trial, unléss the failure was substantially justified or is harmless.” Fed:R.Civ.P. 37(c)(1). The district court- in this case’ specifically discussed Wilson’s failure, in violation of Rule 26(a)(2)(B)®, to give “a complete statement of all opinions the witness will express and the basis and reasons for them.” ' Wilson provided no support for his opinion that the existence of above-grbund power lines' on the property would “materially' and negatively impact' the development” of a hotel, or \" that their very existence would “create both a visual and psychological barrier to guests thinking about staying at a hotel.” (R. 47-1 at 182-83.) Without more explanation of how Wilson came to this conclusion, his report does not satisfy the requirements of Rule 26(a). As we have previously held, “Federal Rule of Civil Procedure 37(c)(1) requires absolute compliance with Rule 26(a), that is, it ‘mandates that a trial court punish a party for discovery violations in connection with Rule 26 unless the violation was harmless or is substantially justified.’ ” Roberts ex rel. Johnson v. Galen of Virginia, Inc., 325 F.3d 776, 782 (6th Cir.2003) (quoting" }, { "docid": "19144177", "title": "", "text": "the litigation ... [because] these claims do not appear to have been sufficiently developed below for us to assess them....”); Dep’t of Revenue v. Kurth Ranch, 511 U.S. 767, 772 n. 9, 114 S.Ct. 1937, 128 L.Ed.2d 767 (1994) (“The issue was not raised below, so we do not address it.”). Similarly, this Court explained in Scottsdale Ins. Co. v. Flowers “that an argument not raised before the district court is waived on appeal to this Court.” 513 F.3d 546, 552 (6th Cir.2008). In United States v. Flint, for example, this Court was unwilling to address a double jeopardy claim that was crucial to a criminal defendant’s case because it was not raised or argued in the district court. 394 Fed.Appx. 273, 279 (6th Cir.2010). Plaintiffs had ample opportunity to brief this issue in their responses to Defendants’ motions, yet they failed to do so. This Court deviates from the general waiver rule explained above only when it “would produce a plain miscarriage of justice” or when there are exceptional circumstances that militate against finding a waiver. Scottsdale Ins. Co., 513 F.3d at 552 (internal quotation marks omitted). The following factors aid this Court in determining whether to consider a waived claim: 1) whether the issue newly raised on appeal is a question of law, or whether it requires or necessitates a determination of facts; 2) whether the proper resolution of the new issue is clear and beyond doubt; 3) whether failure to take up the issue for the first time on appeal will result in a miscarriage of justice or a denial of substantial justice; and 4) the parties’ right under our judicial system to have the issues in their suit considered by both a district judge and an appellate court. Friendly Farms v. Reliance Ins. Co., 79 F.3d 541, 545 (6th Cir.1996). This Court will exercise its discretion “to prevent manifest injustice and to promote procedural efficiency” where “the proper resolution is beyond any doubt or where injustice ... might otherwise result.” Taft Broad. Co. v. United States, 929 F.2d 240, 244 (6th Cir.1991) (internal quotation marks omitted)." }, { "docid": "4845351", "title": "", "text": "Heights); City of Goodlettsville v. Priceline.com, Inc., 844 F.Supp.2d 897, 909 (M.D.Tenn.2012) (same; determining that online travel companies are not “operators” under occupancy-tax ordinance and the ordinance therefore did not apply to them). Therefore, the concerns raised by the Illinois court are not relevant to the claims before us. Finally, the localities argue that the online travel companies violated the laws by collecting taxes and service fees together, without disclosing which portion of the collected amount is for taxes and which portion is for service fees. The ordinances of the cities of Dayton, Findlay, Northwood, and Maumee, and the regulation from Monclova Township, each contain language that requires the tax to be “shown separately on any record,” bill, or statement. See, e.g., City of Dayton Code, § 36.134(A)-(B). The localities raise this possible violation for the first time on appeal. Generally, “an argument not raised before the district court is waived on appeal to this Court.” Scottsdale Ins. Co. v. Flowers, 513 F.3d 546, 552 (6th Cir.2008); see also Foster v. Barilow, 6 F.3d 405, 408 (6th Cir.1993). There are narrow exceptions to this rule that do not apply here; we have “rarely” exercised our discretion to depart from the rule, Scottsdale Ins. Co., 513 F.3d at 552, and we decline to do so here. See Overstreet v. Lexington-Fayette Urban Cnty. Gov’t, 305 F.3d 566, 578 (6th Cir.2002) (holding that this Court “will not consider arguments raised for the first time on appeal unless our failure to consider the issue will result in a plain miscarriage of justice”). We find that the localities have waived their right to argue this claim on appeal. B. Summary Judgment The localities appeal the district court’s grant of the online travel companies’ motion for summary judgment, arguing that the district court erred by finding that there was no genuine issue of material fact as to whether the online travel companies collected fees denominated as taxes without remitting the collected money to the taxing authorities. The localities argue that the online travel companies collected money from consumers labeled as a tax, but failed to remit" }, { "docid": "10744804", "title": "", "text": "429, 433 (6th Cir.1996). We review a district court’s denial of a Rule 60(b) motion for abuse of discretion. Jinks, 250 F.3d at 385. In this case, the district court focused solely on whether the Keehans satisfied the requirement of asserting a meritorious defense, and the parties do the same. We follow suit. B. Statute of Limitations On appeal, the Keehans argue that Ex-Im Bank’s suit to confess judgment on the guarantees was barred by 28 U.S.C. § 2415(a)’s six-year limitations period for actions by the United States based on a contract. Ex-Im Bank responds that the Keehans have waived the statute of limitations defense on appeal because they did not argue the issue below. Instead, they argued laches, and it was the district court itself that first discussed the applicable statute of limitations. It is true that the Keehans did not assert the statute of limitations as a meritorious defense in the district court — indeed, they never took any position on the applicable limitations period. Normally, we deem issues not raised below to be waived for purposes of appeal, but we have “deviated from the general rule in exceptional cases or particular circumstances or when the rule would produce a plain miscarriage of justice.” Scottsdale Ins. Co. v. Flowers, 513 F.3d 546, 552 (6th Cir.2008) (internal quotation marks and citation omitted). Whether to so deviate is based on several factors, such as “whether the issue newly raised on appeal is a question of law, or whether it requires or necessitates a determination of facts,” and “whether failure to take up the issue for the first time on appeal will result in a miscarriage of justice or a denial of substantial justice.” Id. (citations omitted). In this case, the applicable statute of limitations is a question of law requiring no further factual development, which cuts in favor of looking past the failure to raise the issue below. However, we do not believe that a refusal to address the statute of limitations defense would work a substantial miscarriage of justice on the Keehans. The statute of limitations is merely an" }, { "docid": "23032045", "title": "", "text": "the specific parties and contracts at issue (between West Paces and DTCA and between DTCA and the Atlanta physicians). Here, the only party that Yuhasz identifies is Brush. In his briefs to this court, Yuhasz also argues that he should not be required to plead the specifics of information “within [Brush’s] control.” By failing to state specifically that Brush’s control is exclusive, the position taken by Yuhasz on appeal differs from that taken in the complaint, which stated: With respect to the alloy products produced or processed by [Brush] for the requirements of the government pursuant to government contracts, [Brush] is in a position of superior knowledge, and possessed exclusive control over the means of access to information, as to the specific nature of such requirements or contracts. (emphasis added). In its response to Brush’s motion to dismiss, Yuhasz also claimed that “an exception exists when certain information is within the exclusive possession of the defendant.” (emphasis added). The district court rejected this argument, explaining that Yuhasz “is not entitled to a relaxed standard because the information he seeks is not exclusively in the possession of Brush.” Yuhasz, 181 F.Supp.2d at 793. Although Yuhasz now argues that he should not be required to plead information over which Brush has “constructive control,” nowhere in his briefs to this court does he state that Brush’s control is exclusive. Thus, Yuhasz apparently has now conceded that third parties possess information concerning the specific contracts at issue and the claims submitted for payment. As the district court correctly determined, “[c]ourts have held that [Rule 9(b)] may be relaxed where information is only within the opposing party’s knowledge.” Michaels Bldg. Co. v. Ameritrust Co., N.A., 848 F.2d 674, 680 (6th Cir.1988) (emphasis added). Furthermore, although Yuhasz argues that he “cannot obtain the information demanded by the trial court absent discovery,” there is no general right to discovery upon filing of the complaint. The very purpose of Fed.R.Civ.P. 12(b)(6) “is to enable defendants to challenge the legal sufficiency of complaints without subjecting themselves to discovery.” Rutman Wine Co. v. E. & J. Gallo Winery, 829 F.2d" }, { "docid": "23382621", "title": "", "text": "motion filed by Barany-Snyder, a panel of this court dismissed the cross-appeal, as the district court had entered a judgment in defendants’ favor. II. On appeal, defendants have raised, albeit obliquely, a statute of limitations defense to Barany-Snyder’s FDCPA claims. This cursory argument has been waived, for “[i]ssues adverted to in a perfunctory manner, unaccompanied by some effort at developed argumentation, are deemed waived.” McPherson v. Kelsey, 125 F.3d 989, 995-96 (6th Cir.1997) (citation and quotation marks omitted). Nor was this issue adequately presented to the trial court. While defendants asserted a general statute of limitations defense in their answer, this defense was not raised in defendants’ motion for judgment on the pleadings. Defendants did raise the statute of limitations issue briefly in their reply brief below, but the district court did not address the issue — an apt decision, given that this court has noted that “Raising [an] issue for the first time in a reply brief [in the district court] does not suffice” to preserve the argument for appeal. Scottsdale Ins. Co. v. Flowers, 513 F.3d 546, 553 (6th Cir.2008) (quoting Novosteel SA v. United States, 284 F.3d 1261, 1274 (Fed.Cir.2002)). We thus need not consider this argument. “Issues that are not squarely presented to the trial court are considered waived and may not be raised on appeal.” Thurman v. Yellow Freight Sys., Inc., 90 F.3d 1160, 1172 (6th Cir. 1996). III. We review a district court’s grant of judgment on the pleadings pursuant to Federal Rule of Civil Procedure 12(c) de novo, just as we review a Rule 12(b)(6) motion to dismiss. JPMorgan Chase Bank, N.A. v. Winget, 510 F.3d 577, 581 (6th Cir.2007); Commercial Money Ctr., Inc. v. Illinois Union Ins. Co., 508 F.3d 327, 336 (6th Cir.2007). Accordingly, “we construe the complaint in the light most favorable to the nonmoving party, accept the well-pled factual allegations as true, and determine whether the moving party is entitled to judgment as a matter of law.” Commercial Money Ctr., 508 F.3d at 336. Although our decision rests primarily upon the allegations of the complaint, “matters of public record," }, { "docid": "23032046", "title": "", "text": "the information he seeks is not exclusively in the possession of Brush.” Yuhasz, 181 F.Supp.2d at 793. Although Yuhasz now argues that he should not be required to plead information over which Brush has “constructive control,” nowhere in his briefs to this court does he state that Brush’s control is exclusive. Thus, Yuhasz apparently has now conceded that third parties possess information concerning the specific contracts at issue and the claims submitted for payment. As the district court correctly determined, “[c]ourts have held that [Rule 9(b)] may be relaxed where information is only within the opposing party’s knowledge.” Michaels Bldg. Co. v. Ameritrust Co., N.A., 848 F.2d 674, 680 (6th Cir.1988) (emphasis added). Furthermore, although Yuhasz argues that he “cannot obtain the information demanded by the trial court absent discovery,” there is no general right to discovery upon filing of the complaint. The very purpose of Fed.R.Civ.P. 12(b)(6) “is to enable defendants to challenge the legal sufficiency of complaints without subjecting themselves to discovery.” Rutman Wine Co. v. E. & J. Gallo Winery, 829 F.2d 729, 738 (9th Cir.1987). For all of these reasons, dismissal of Yu-hasz’s FCA claim is appropriate. IV. The FCA protects employees who pursue, investigate, or otherwise contribute to an action exposing fraud against the government. Section 3730(h) of the FCA states: Any employee who is discharged, demoted, suspended, threatened, harassed, or in any other manner discriminated against in the terms or conditions of employment by his or her employer because of lawful acts done by the employee on behalf of the employee or others in furtherance of an action under this section, including investigation for, initiation of, testimony for, or assistance in an action filed or to be filed under this section, shall be entitled to all relief necessary to make the employee whole. 31 U.S.C. § 3730(h). In order to establish a claim for retaliatory discharge, a plaintiff must show: (1) he engaged in a protected activity; (2) his employer knew that he engaged in the protected activity; and (3) his employer discharged or otherwise discriminated against the employee as a result of the" }, { "docid": "15005408", "title": "", "text": "an issue not raised before the district court is not properly before us.” Foster v. Barilow, 6 F.3d 405, 409 (6th Cir.1993). We have found that this general policy is justified by two main policy goals: “First, the rule eases appellate review by having the district court first consider the issue. Second, the rule ensures fairness to litigants by preventing surprise issues from appearing on appeal.” Scottsdale Ins. Co. v. Flowers, 513 F.3d 546, 552 (6th Cir.2008) (internal citations and quotation marks omitted). Only in “exceptional cases or particular circumstances or when the rule would produce a plain miscarriage of justice,” id. (quoting Foster, 6 F.3d at 407 (internal quotation marks omitted)), do we exercise our discretion to entertain arguments not raised before the district court. In this ease, Rice not only failed to argue that the accrual date was April 20, 2005, before the district court, but he vehemently argued that his claim accrued on a different date — September 24, 2003. Furthermore, the district court, “errfing] on the side of caution,” agreed to accept Rice’s proposed date of accrual. Rice, 2008 WL 4059885, at *6. Rice has neither attempted to explain the discrepancy in his arguments, nor even acknowledged that he is now presenting an entirely different argument. Because Rice has not demonstrated that exceptional or particular circumstances exist that would weigh in favor of exercising discretion, we find that Rice has waived his argument that his claim accrued on April 20, 2005. Even if the argument were not waived, we find that the limitations period expired before Rice filed the instant case. The contractual language binds the parties further than the three-year limitations period; the policy specifically states that “[n]o legal action may be brought more than three years after proof of claim is required to be given.” (emphasis added.) The district court and the parties, however, looked outside of the contract and to the Eighth Circuit for guidance. In Wilkins v. Hartford Life & Accident Insurance Co., 299 F.3d 945, 948-49 (8th Cir.2002), the Eighth Circuit rejected without explanation contractual language that the three-year limitations period" }, { "docid": "14210281", "title": "", "text": "agricultural purposes”); United States v. 33.92356 Acres Of Land, 585 F.3d 1, 7-8 (1st Cir.2009) (excluding the landowner’s proffered expert testimony because the expert could not show a reasonable probability that the property would be rezoned). We find that the district court acted well within its discretion in excluding Wilson’s testimony. The support for Wilson’s opinion was sufficiently sparse such that the court did not abuse its discretion in holding that the proposed expert testimony did not meet the standards of Rule 702, or the standards for admissibility in the context of condemnation proceedings. b. Inadmissibility Under Rule 37(c)(1) The district court also excluded Wilson’s testimony because his expert report failed to comply with Rule 26(a)(2)(B), which required that expert reports be detailed and complete. ' Therefore, the district court determined, Wilson’s report and testimony was prohibited by Federal Rule of Civil Procedure 37(c)(1). Although the TVA raised this argument in its motion to exclude Wilson’s testimony, Thomas did not respond to this argument below, nor does he address the issue in his brief on appeal. ‘ Therefore, Thomas has waived his right to challenge the district court’s'ruling in this regard. See Scottsdale Ins. Co. v. Flowers, 513 F.3d 546, 552 (6th Cir.2008) (“[A]n argument not raised before the district court is Waived on appeal to * this Court.”); Middlebrook v. City of Bartlett, 103 Fed.Appx. 560, 562 (6th Cir.2004) (“The failure to present an argument in an appellate brief waives appellate review.”) (citation omitted). But even if Thomas had not waived his challenge to this ruling, we would still affirm the district court’s decision. Wilson’s tworpage report did not meet Rule 26(a)(2)(B)(i)’s requirement that an expert report be “a complete statement of all opinions the witness, will express and the basis and reasons for them.” Fed.R.Civ,P. 26(a)(2)(B)®. Rule 37(c)(1) states that “[i]f a party fails to provide information or identify a witness as required by Rule 26(a) or (e), the -party is not allowed to use that information or witness to supply evidence on a motion, at a hearing, or at a trial, unléss the failure was substantially justified" }, { "docid": "11546604", "title": "", "text": "the requirements for an injunction, because neither party was on notice that the court would address that issue. Before dismissing a complaint sua sponte, even if the dismissal is without prejudice, the court must give notice to the plaintiff. Morrison v. Tomano, 755 F.2d 515, 516-17 (6th Cir.1985). The irreparable-harm ruling was premature, and the district court thus erred in dismissing Chase Bank’s suit on these grounds. Indeed, Cleveland does not defend this aspect of the district court’s ruling on appeal. To the extent that the district court dismissed Chase Bank’s claim seeking an injunction of pending litigation as unripe, this conclusion was incorrect. A claim is unripe if plaintiffs “seek to enjoin the enforcement of statutes, regulations, or policies that have not yet been enforced against them.” Ammex, 351 F.3d at 706. Here, by contrast, Chase Bank faced ongoing litigation under the law that it alleged was preempted at the time that the district court dismissed the claim. C. Non-Jurisdictional Grounds for Affirmance Cleveland contends that, even if the district court had subject-matter jurisdiction, we should nonetheless affirm the dismissal of Chase Bank’s suit as an appropriate exercise of the district court’s discretion or pursuant to the Anti-Injunction Act or the doctrine of Younger abstention. Cleveland did not raise any of these non-jurisdictional grounds for dismissal before the district court, however, and we typically do not address issues not raised below. See Scottsdale Ins. Co. v. Flowers, 513 F.3d 546, 552 (6th Cir.2008). None of the “exceptional cases or particular circumstances” warranting deviation from this rule are present here. Id. (internal quotation marks omitted). Because we are remanding, Cleveland will have an opportunity to present these arguments to the district court. III. CONCLUSION Chase Bank’s suit for declaratory and injunctive relief falls within the line of cases recognizing federal subject-matter jurisdiction over preemption-based challenges to state laws brought against state officials. The fact that the official action that Chase Bank challenges as preempted in this case is a lawsuit rather than direct regulation does not affect the jurisdictional issue; the question of whether it implicates Anti-Injunction Act or abstention" }, { "docid": "19144178", "title": "", "text": "a waiver. Scottsdale Ins. Co., 513 F.3d at 552 (internal quotation marks omitted). The following factors aid this Court in determining whether to consider a waived claim: 1) whether the issue newly raised on appeal is a question of law, or whether it requires or necessitates a determination of facts; 2) whether the proper resolution of the new issue is clear and beyond doubt; 3) whether failure to take up the issue for the first time on appeal will result in a miscarriage of justice or a denial of substantial justice; and 4) the parties’ right under our judicial system to have the issues in their suit considered by both a district judge and an appellate court. Friendly Farms v. Reliance Ins. Co., 79 F.3d 541, 545 (6th Cir.1996). This Court will exercise its discretion “to prevent manifest injustice and to promote procedural efficiency” where “the proper resolution is beyond any doubt or where injustice ... might otherwise result.” Taft Broad. Co. v. United States, 929 F.2d 240, 244 (6th Cir.1991) (internal quotation marks omitted). However, issues not raised in the trial court may be addressed on appeal for the first time only if the issue “is presented with sufficient clarity and completeness and its resolution will materially advance the progress of [ ] already protracted litigation.” Pinney Dock & Transp. Co. v. Penn. Cent. Corp., 838 F.2d 1445, 1461 (6th Cir.1988). This Court “ha[s] rarely exercised such discretion,” Scottsdale Ins. Co., 513 F.3d at 552, and these factors, as applied to the instant case, do not militate in favor of allowing this Court to exercise its discretion to entertain Plaintiffs Powers argument. Although application of Powers in this case is a question of law, it is not an issue for which resolution is clear beyond doubt, and a district court should have had the opportunity to consider the facts in this case to determine whether Powers applies. Plaintiff has failed to demonstrate any exceptional circumstances that prevented him from asserting this argument before the district court. Plaintiff is not a pro se litigant. He was represented by counsel before" }, { "docid": "19144176", "title": "", "text": "rather than spending an extensive amount of time in jail. He was ineligible for habeas review because he did not serve a sentence long enough to assert a claim challenging his conviction. Therefore, he claims that Powers means Heck is inapplicable to his case. Defendants respond by arguing that Plaintiff waived the argument after failing to assert it in the district court or, in the alternative, because Ohio collateral estoppel law bars such an argument. The Supreme Court has repeatedly held it will not consider an argument that a petitioner failed to assert in the courts below. See, e.g., Grupo Mexicano de De-sarrollo S.A. v. Alliance Bond Fund, Inc., 527 U.S. 308, 318 n. 3, 119 S.Ct. 1961, 144 L.Ed.2d 319 (1999) (“Because this argument was neither raised nor considered below, we decline to consider it”); Roberts v. Galen of Va., Inc., 525 U.S. 249, 253-54, 119 S.Ct. 685, 142 L.Ed.2d 648 (1999) (“Although respondent presents two alternative grounds for affirmance of the decision below, we decline to address these claims at this stage in the litigation ... [because] these claims do not appear to have been sufficiently developed below for us to assess them....”); Dep’t of Revenue v. Kurth Ranch, 511 U.S. 767, 772 n. 9, 114 S.Ct. 1937, 128 L.Ed.2d 767 (1994) (“The issue was not raised below, so we do not address it.”). Similarly, this Court explained in Scottsdale Ins. Co. v. Flowers “that an argument not raised before the district court is waived on appeal to this Court.” 513 F.3d 546, 552 (6th Cir.2008). In United States v. Flint, for example, this Court was unwilling to address a double jeopardy claim that was crucial to a criminal defendant’s case because it was not raised or argued in the district court. 394 Fed.Appx. 273, 279 (6th Cir.2010). Plaintiffs had ample opportunity to brief this issue in their responses to Defendants’ motions, yet they failed to do so. This Court deviates from the general waiver rule explained above only when it “would produce a plain miscarriage of justice” or when there are exceptional circumstances that militate against finding" }, { "docid": "10744805", "title": "", "text": "be waived for purposes of appeal, but we have “deviated from the general rule in exceptional cases or particular circumstances or when the rule would produce a plain miscarriage of justice.” Scottsdale Ins. Co. v. Flowers, 513 F.3d 546, 552 (6th Cir.2008) (internal quotation marks and citation omitted). Whether to so deviate is based on several factors, such as “whether the issue newly raised on appeal is a question of law, or whether it requires or necessitates a determination of facts,” and “whether failure to take up the issue for the first time on appeal will result in a miscarriage of justice or a denial of substantial justice.” Id. (citations omitted). In this case, the applicable statute of limitations is a question of law requiring no further factual development, which cuts in favor of looking past the failure to raise the issue below. However, we do not believe that a refusal to address the statute of limitations defense would work a substantial miscarriage of justice on the Keehans. The statute of limitations is merely an affirmative defense, which may be waived at the outset of litigation by a party’s failure to assert it. Fed.R.Civ.P. 8(c); Phelps v. McClellan, 30 F.3d 658, 663 (6th Cir.1994). As failure to assert the limitations period at the outset of litigation results in a waiver as a matter of course, we cannot say that finding the defense waived at this later stage of the proceedings due to the Keehans’ failure to timely assert the defense to be so draconian as to result in a substantial miscarriage of justice. We therefore deem the issue waived. E.g. Brunet v. City of Columbus, 1 F.3d 390, 402-03 (6th Cir.1993) (finding that statute of limitations defense was waived when raised for first time on appeal). C. Interpretation of the Guarantees As an alternative to the statute of limitations argument, the Keehans argue that the confession of judgment provision in the guarantees conflicts with the arbitration provision and, thus, the confession of judgment provision is void. As the district court correctly noted, this argument could constitute a meritorious defense under" }, { "docid": "23610064", "title": "", "text": "Fed. R.Civ.P. 56(c). In considering a motion for summary judgment, the district court must construe all reasonable inferences in favor of the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). The central issue is “whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). B. Tucker’s promissory-estoppel claim Tucker contends that the district court erred when it refused to consider her promissory-estoppel claim. The court took this action after determining that she had neglected to include such a claim in her complaint. In so holding, Tucker argues, the district court failed to look beyond the labels in her pleading and ignored the mandate of the Federal Rules of Civil Procedure, which “direct[ ] courts to construe pleading[s] liberally within the standards of the notice-pleading regime.” Minger v. Green, 239 F.3d 793, 799 (6th Cir.2001) (observing that “the fundamental tenor of the Rules is one of liberality rather than technicality”) (citation and quotation marks omitted). Tucker’s argument, however, misses the mark. If her case had been dismissed for failure to state a claim under Rule 12(b)(6) of the Federal Rules of Civil Procedure, then we would indeed be governed by the liberal notice-pleading requirements that she invokes in her brief. See Minger, 239 F.3d at 799-800 (applying the “extremely modest standard” of Rule 12(b)(6) in evaluating a complaint and reversing the district court’s dismissal of the case). But Tucker’s case was disposed of at the summary judgment stage, nearly two years after Tucker filed her complaint. This difference in timing is crucial. A motion to dismiss typically occurs early in the course of litigation, well before discovery has been completed. See Yuhasz v. Brush Wellman, Inc., 341 F.3d 559, 566 (6th Cir.2003) (“The very purpose of Fed.R.Civ.P. 12(b)(6) is to enable defen dants to challenge the legal sufficiency of complaints without subjecting themselves" } ]

[ { "docid": "17429101", "title": "", "text": "on the subject property. Subsequently, this mortgage was released . On July 26, 1995, defendant United States of America, through the Internal Revenue Service, recorded in the proper county a lien against the Debtor in the amounts of $688.75 and $38,162.56. On September 28, 1995, the IRS recorded another tax hen in the amount of $34,769.79. Thereafter, but before February 14, 2000, additional liens were filed against the Debtor in the county where the subject property was situated. On February 14, 2000, the Debtor granted a mortgage on the subject property to Equicredit Corporation which was recorded on March 6, 2000. Out of the funds secured by the Equicredit Mortgage, $36,340.41 was paid to satisfy the mortgage of First Bank of Marietta. DISCUSSION Bankruptcy Rule 7056 incorporates the standards set forth in Federal Rule of Civil Procedure 56, which governs when summary judgment is appropriate. That rule provides that summary judgment shall be rendered if the pleadings, discovery, or affidavits submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Fed. R.Civ.P. 56(c). The moving party has the initial burden of proving that no genuine issue of fact exists. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The burden then shifts to the non-moving party to demonstrate that a triable issue of fact exists which precludes summary judgment against the nonmovant. Holland v. Double G. Coal Co., 898 F.Supp. 351 (S.D.W.Va.1995). For a genuine issue of fact to exist, there must be sufficient evidence that a reasonable jury could find, by a preponderance of the evidence, for the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Where competing hens involve a federal tax, federal law controls. Aquilino v. United States, 363 U.S. 509, 80 S.Ct. 1277, 4 L.Ed.2d 1365 (1960); In re Darnell, 834 F.2d 1263, 1269 (6th Cir.1987). Under federal law, the priority of competing liens is determined by the principle of “first in time" } ]

[ { "docid": "13944261", "title": "", "text": "56, as to the Vietnamese plaintiffs’ domestic law claims is granted for the same reasons. The motion for partial summary judgment on statute of limitations grounds is denied. See infra Part VIII.D. 2. Law Applicable to Motions a. Rule 56 Rule 56(c) of the Federal Rules of Civil Procedure provides that summary judgment “shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with 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.CivP. 56(c); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). 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, 477 U.S. at 323, 106 S.Ct. 2548. The burden then shifts to the nonmoving party to “ ‘set forth specific facts showing that there is a genuine issue for trial.’ ” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) (quoting Rule 56(e) of the Federal Rules of Civil Procedure). All inferences are to be drawn from the underlying facts in the light must favorable to the party opposing the summary judgment motion. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587-88, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). The mere existence of some peripheral factual disputes will not defeat an otherwise properly supported motion for summary judgment. Anderson, 477 U.S. at 247, 106 S.Ct. 2505. “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.” Id. at 248, 106 S.Ct. 2505. b. Rule 12(b)(6) A defendant may move for dismissal for “failure to state a claim upon which relief can be granted.” Fed.R.CivP. 12(b)(6). The moving" }, { "docid": "10140713", "title": "", "text": "judgment only “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). “Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). On a motion for summary judgment, the district 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.” Id. at 249, 106 S.Ct. 2505. The moving party bears the initial responsibility to point to the absence of any genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Where the nonmoving party has the burden of proof at trial, the moving party can carry its initial burden either by submitting affirmative evidence that there is not a triable, factual dispute or by demonstrating that the nonmoving party “fail[ed] to make a showing sufficient to establish the existence of an element essential to that party’s case.” Id. at 322, 106 S.Ct. 2648. The burden then shifts to the nonmoving party “to designate specific facts demonstrating the existence of genuine issues for trial.” In re Oracle Corp. Sec. Litig., 627 F.3d 376, 387 (9th Cir. 2010) (citing Celotex Corp., 477 U.S. at 324, 106 S.Ct. 2548). This means that the evidence is such that “a jury could reasonably render a verdict in the non-moving party’s favor.” Id. (citing Anderson, 477 U.S. at 252, 106 S.Ct. 2505). “The evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor.” Anderson, 477 U.S. at 255, 106 S.Ct. 2505. “When the party moving for summary judgment would bear the burden of proof at trial, it must come forward with evidence which would entitle it to a directed verdict if the evidence went uncontroverted at trial.” Miller" }, { "docid": "10253951", "title": "", "text": "“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 v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). The substantive law identifies which facts are material. Id. at 248, 106 S.Ct. at 2510. A dispute over a material fact is genuine when the evidence is such that a reasonable jury could find for the nonmovant. Id. “Only disputes over facts that might properly affect the outcome of the suit: under the governing law will properly preclude the entry of summary judgment.” Id. The movant has the initial burden of showing the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 2552-53, 91 L.Ed.2d 265 (1986). The movant may discharge its burden “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. The movant need not negate the nonmovant’s claim. Id. at 323, 106 S.Ct. at 2552-53. Once the movant makes a properly supported motion, the nonmovant must do more than merely show there is some metaphysical doubt as to the material facts. Matsushita Elec. Indus. Co. v. Zenith Radio, 475 U.S. 574, 586, 106 S.Ct. 1348, 1355-56, 89 L.Ed.2d 538 (1986). The nonmovant must go beyond the pleadings and, by affidavits or depositions, answers to interrogatories, and admissions on file, designate specific facts showing there is a genuine issue for trial. Celotex, 477 U.S. at 324, 106 S.Ct. at 2553 (interpreting Fed.R.Civ.P. 56(e)). Rule 56(c) requires the court to enter summary judgment against a nonmovant who fails to make a showing sufficient to establish the existence of an essential element to that party’s case, and on which that party will bear the burden of proof. Id. at 322, 106 S.Ct. at 2552. Such a complete failure of proof on an essential element of the nonmovant’s" }, { "docid": "16819321", "title": "", "text": "a court determines that “ ‘there is no genuine dispute over a material fact and the moving party is entitled to judgment as a matter of law.’ ” Thrasher v. B & B Chem. Co., 2 F.3d 995, 996 (10th Cir.1993) (citation omitted). Under Rule 56(c), “the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48,106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Rather, “[o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment.” Id. at 248, 106 S.Ct. 2505. The moving party has the initial burden of demonstrating the absence of a genuine issue of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Where the movant will not bear the burden of proof at trial, this burden may be met by pointing to “a lack of evidence for the nonmovant on an essential element of the nonmovant’s claim.” Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 671 (10th Cir.1998) (citing Celotex, 477 U.S. at 325, 106 S.Ct. 2548). Once the moving party meets its burden, the nonmoving party must “go beyond the pleadings and by [its] own affidavits, or by the ‘depositions, answers to interrogatories, and admissions on file,’ designate ‘specific facts showing that there is a genuine issue for trial.’ ” Celotex, 477 U.S. at 324, 106 S.Ct. 2548 (quoting Fed.R.Civ.P. 56(e)). Upon a motion for summary judgment, a court “must view the facts in the light most favorable to the nonmovant and allow the nonmovant the benefit of all reasonable inferences to be drawn from the evidence.” Kaus v. Standard Ins. Co., 985 F.Supp. 1277, 1281 (D.Kan.1997), aff'd, 162 F.3d 1173 (10th Cir.1998). “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 Elec. Indus. v. Zenith Radio Corp., 475 U.S. 574, 587," }, { "docid": "8982310", "title": "", "text": "1539 (Fed.Cir.1995) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)). A material fact is one that might significantly affect the outcome of the suit under applicable law. See Anderson, 477 U.S. at 247-48, 106 S.Ct. 2505 (“As to materiality, the substantive law will identify which facts are material. Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Factual disputes that are irrelevant or unnecessary will not be counted____That is, while the materiality determination rests on the substantive law, it is the substantive law’s identification of which facts are critical and which facts are ^ irrelevant that governs.”). The existence of “some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment[.]” Id. Where the non-moving party only proffers evidence that is “merely colorable, or is not significantly probative, summary judgment may be granted.” Id. at 249-50, 106 S.Ct. 2505 (citations omitted). The party moving for summary judgment has the initial burden of demonstrating the absence of any genuine issue of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) (holding the movant must meet its burden “by ‘showing’- — that is pointing out to the [trial court] that there is an absence of evidence to support the nonmoving party’s case.”). The moving party may need only to support its motion with “solely ... the pleadings, depositions, answers to interrogatories, and admissions on file.” Id. at 324, 106 S.Ct. 2548. If the moving party carries its burden to demonstrate an absence of any genuine issue of material fact, then the burden of proof shifts to the non-moving party to show a genuine factual dispute exists. See Sweats Fashions, Inc. v. Pannill Knitting Co., Inc., 833 F.2d 1560, 1563 (Fed.Cir.1987). An issue is genuine only if it might prompt a reasonable fact-finder to resolve a factual matter in favor of the non-moving party. Id. at 1562-63. The court is required to resolve" }, { "docid": "6255032", "title": "", "text": "judgment as a matter of law. Fed. R.Civ.P. 56(c). The rule provides 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 v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 2509-10, 91 L.Ed.2d 202 (1986). The substantive law identifies which facts are material. Id. at 248, 106 S.Ct. at 2510. A dispute over a material fact is genuine when the evidence is such that a reasonable jury could find for the nonmovant. Id. “Only disputes over facts that might properly affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment.” Id. The movant has the initial burden of showing the absence of a genuine issue of material fact. Shapolia v. Los Alamos Nat’l Lab., 992 F.2d 1033, 1036 (10th Cir.1993). The movant may discharge its burden “by ‘showing’—that is, pointing out to the district court—that there is an absence of evidence to support the nonmoving party’s case.” Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986). The movant need not negate the nonmovant’s claim. Id. at 323,106 S.Ct. at 2552. Once the movant makes a properly supported motion, the nonmovant must do more than merely show there is some metaphysical doubt as to the material facts. Matsushita Elec. Indus. Co. v. Zenith Radio, 475 U.S. 574, 586, 106 S.Ct. 1348, 1355, 89 L.Ed.2d 538 (1986). The nonmovant must go beyond the pleadings and, by affidavits or depositions, answers to interrogatories, and admissions on file, designate specific facts showing there is a genuine issue for trial. Celotex, ATI U.S. at 324, 106 S.Ct. at 2553 (interpreting Fed. R.Civ.P. 56(e)). Rule 56(e) requires the court to enter summary judgment against a nonmovant who fails to make a showing sufficient to establish the existence of an essential element to that party’s case, and on which that party will bear the burden of proof. Id. at 322, 106 S.Ct. at" }, { "docid": "16684871", "title": "", "text": "there is “no genuine issue as to any material fact” and that it is “entitled to a judgment as a matter of law.” Fed.R.Civ.P. 66(c). The rule provides 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 v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The substantive law identifies which facts are material. Id. at 248, 106 S.Ct. 2505. A dispute over a material fact is genuine when the evidence is such that a reasonable jury could find for the nonmovant. Id. “Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment.” Id. The movant has the initial burden of showing the absence of a genuine issue of material fact. Shapolia v. Los Alamos Nat’l Lab., 992 F.2d 1033, 1036 (10th Cir.1993). The movant may discharge its burden “by ‘showing’ — that is, pointing out to the district court — that there is an absence of evidence to support the nonmoving party’s case.” Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The movant need not negate the nonmovant’s claim. Id. at 323, 106 S.Ct. 2548. Once the movant makes a properly supported motion, the nonmovant must do more than merely show there is some metaphysical doubt as to the material facts. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). The nonmovant must go beyond the pleadings and, by affidavits or depositions, answers to interrogatories, and admissions on file, designate specific facts showing there is a genuine issue for trial. Celotex, 477 U.S. at 324, 106 S.Ct. 2548 (interpreting Fed.R.Civ.P. 56(e)). Rule 56(c) requires the court to enter summary judgment against a nonmovant who fails to make a showing sufficient to establish the existence of an essential element to that party’s case, and on" }, { "docid": "16585594", "title": "", "text": "of Aeromexieo. While the question of whether SWT also used the Whitesville bank account for daily operations has not been sufficiently answered by the defendants, this Court finds that this does not constitute a material fact which would preclude summary judgment. Therefore, the Court rules as follows on the motions. PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT IS GRANTED IN PART AND DEFENDANTS’ MOTION TO DISMISS AND/OR FOR SUMMARY JUDGMENT IS DENIED Bankruptcy Rule 7056 incorporates the standards sets forth in Federal Rule of Civil Procedure 56, which governs when summary judgment is appropriate. That rule provides, in pertinent part, as follows: The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). The moving party has the initial burden of proving that no genuine issue of fact exists. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); United States v. Lambert, 915 F.Supp. 797 (S.D.W.Va.1996). The burden then shifts to the nonmoving party to demonstrate that a triable issue of fact exists which precludes summary judgment against the nonmovant. Holland v. Double G. Coal Co., 898 F.Supp. 351 (S.D.W.Va.1995). For a genuine issue of fact to exist, there must be sufficient evidence that a reasonable jury could find, by a preponderance of the evidence, for the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). “By its very terms, this standard provides that the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment.” Id. at 247-248, 106 S.Ct. 2505. “Only disputes over facts that might affect the outcome of the suit ... will properly preclude the entry of summary judgment. Factual disputes that are irrelevant or unnecessary will not be counted.” Id. In this case ARC has provided this Court with well-documented and" }, { "docid": "2120181", "title": "", "text": "is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.”); see also RCFC 56(c). Only genuine disputes of material facts that might affect the outcome of the suit will preclude entry of summary judgment. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) (“As to materiality, the substantive law will identify which facts are material. Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Factual disputes that are irrelevant or unnecessary will not be counted----That is, while the materiality determination rests on the substantive law, it is the substantive law’s identification of which facts are critical and which facts are irrelevant that governs.”). The existence of “some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment[.]” Id,. Therefore, to avoid summary judgment, the nonmoving party must put forth evidence sufficient for a reasonable factfinder to return a verdict for that party. Id. at 248-50, 106 S.Ct. 2505 (citations omitted). The moving party bears ’the initial burden of demonstrating the absence of any genuine issue of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) (holding the moving party must meet its burden “by ‘showing’—that is pointing out to the [trial court] that there is an absence of evidence to support the non-moving party’s case.”); see also Riley & Ephriam Constr. Co., Inc., 408 F.3d 1369, 1371 (Fed.Cir.2005) (“The moving party bears the burden of demonstrating the absence of a genuine issue of material fact.”). Once the moving party demonstrates the absence of a genuine issue of material fact, however, the burden shifts to the nonmoving party to show the existence of a genuine issue for trial. See Novartis Corp. v. Ben Venue Laboratories, 271 F.3d 1043, 1046 (Fed.Cir.2001) (explaining that, once the movant has demonstrated the absence of a genuine issue of material fact, “the burden" }, { "docid": "19975364", "title": "", "text": "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 v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) (emphasis in original). “As to materiality, the substantive law will identify which facts are material. Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Factual disputes that are irrelevant or unnecessary will not be counted.” Id. at 248, 106 S.Ct. 2505. Likewise, a dispute about a material fact is a “genuine” issue “if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Id. However, “[t]he mere existence of a scintilla of evidence in support of the position. will be insufficient; there must be evidence on which the jury could reasonably find for the [non-movant].” Id. at 252, 106 S.Ct. 2505. “For factual issues to be considered genuine, they must have a real basis in the record.... [M]ere conclusions and unsupported factual allegations are legally insufficient to defeat a summary judgment motion.” Ellis v. England, 432 F.3d 1321, 1326 (11th Cir.2005). The moving party “always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, which it believes demonstrate the absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Summary judgment is proper “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.” Id. at 322, 106 S.Ct. 2548. In those cases, there is no genuine issue of material fact “since a complete failure of proof concerning an essential element of the non-moving party’s case" }, { "docid": "16560410", "title": "", "text": "(11th Cir.1990). “By its very terms, this standard provides 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 v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) (emphasis in original). “As to materiality, the substantive law will identify which facts are material. Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Factual disputes that are irrelevant or unnecessary will not be counted.” Id. at 248, 106 S.Ct. 2505. Likewise, a dispute about a material fact is a “genuine” issue “if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Id. “For factual issues to be considered genuine, they must have a real basis in the record ... mere conclusions and unsupported factual allegations are legally insufficient to defeat a summary judgment motion.” Ellis v. England, 432 F.3d 1321, 1326 (11th Cir.2005) (citations omitted). The moving party “always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, which it believes demonstrate the absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Summary judgment is proper “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.” Id. at 322, 106 S.Ct. 2548. In those cases, there is no genuine issue of material fact “since a complete failure of proof concerning an essential element of the nonmoving party’s case necessarily renders all other facts immaterial.” Id. at 323, 106 S.Ct. 2548. III. ANALYSIS Both Beazley and Great American seek summary judgment against" }, { "docid": "13475550", "title": "", "text": "fact, the moving party is entitled to judgment as a matter of law. See Yant v. United States, 588 F.3d 1369, 1371 (Fed.Cir.2009) (“Summary judgment is appropriate where there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law.”); see also RCFC 56(c). Only genuine disputes as to material facts that might affect the outcome of the suit will preclude entry of summary judgment. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) (“As to materiality, the substantive law will identify which facts are material. Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Factual disputes that are irrelevant or unnecessary will not he counted.... That is, while the materiality determination rests on the substantive law, it is the substantive law’s identification of which facts are critical and which facts are irrelevant that governs.”). The existence of “some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgnent[.]” Id. at 247-48, 106 S.Ct. 2505. Therefore, to avoid summary judgment, the nonmoving party must put forth evidence sufficient for a reasonable fact-finder to return a verdict for that party. Id. at 248-50, 106 S.Ct. 2505. The moving party bears the initial burden of demonstrating the absence of any genuine issue of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) (holding the moving party must meet its burden “by ‘showing’—that is, pointing out to the [trial court]—that there is an absence of evidence to support the non-moving party’s case”); see also Riley & Ephriam Constr. Co. v. United States, 408 F.3d 1369, 1371 (Fed.Cir.2005) (“The moving party bears the burden of demonstrating the absence of a genuine issue of material fact.”). Once the moving party demonstrates the absence of a genuine issue of material fact, however, the burden shifts to the nonmoving party to show the existence of a genuine issue for" }, { "docid": "19036015", "title": "", "text": "if there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law.”); see also RCFC 56(c). Only genuine disputes of material facts that might affect the outcome of the suit will preclude entry of summary judgment. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) (“As to materiality, the substantive law will identify which facts are material. Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Factual disputes that are irrelevant or unnecessary will not be counted.”). The “existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment!)]” Id. at 247-48, 106 S.Ct. 2505. To avoid summary judgment, the nonmoving party must put forth evidence sufficient for a reasonable finder of fact to return a verdict for that party. Id. at 248-50,106 S.Ct. 2505. The moving party bears the initial burden of demonstrating the absence of any genuine issue of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) (holding the moving party must meet its burden “by ‘showing’ — that is, pointing out to the [trial] court — that there is an absence of evidence to support the nonmoving party’s case”); see also Wav-etronix LLC v. EIS Elec. Integrated Sys., 573 F.3d 1343, 1354 (Fed.Cir.2009) (“The moving party bears the burden of identifying those portions of the pleadings, discovery and affidavits that demonstrate the absence of a genuine issue of material fact.”). Once the moving party demonstrates the absence of a genuine issue of material fact, the burden shifts to the nonmoving party to show the existence of a genuine issue for trial. See Shum v. Intel Corp., 633 F.3d 1067, 1076 (Fed.Cir.2010) (“If the moving party meets its burden of establishing that there is no genuine issue of material fact and is entitled to judgment as a matter of law, then the burden shifts to the" }, { "docid": "19144492", "title": "", "text": "by failing to properly train and supervise Brown. Johnson also brought a state law negligence claim against Brown. Defendants removed the case to federal court and now move for summary judgment. II. SUMMARY JUDGMENT STANDARD Summary judgment is required “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Fed. R.Civ.P. 56(c). The mere existence of some factual dispute does not defeat a summary judgment motion; “the requirement is that there is a genuine issue of material fact.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). For a dispute to be genuine, the evidence must be such that a “reasonable jury could return a verdict for the nonmoving party.” Id. For the fact to be material, it must relate to a disputed matter that “might affect the outcome of the suit.” Id. Although summary judgment is a useful tool for isolating and terminating factually unsupported claims, Celotex Corp. v. Catrett, 477 U.S. 317, 323-24, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986), courts should act with caution in granting summary judgment, Anderson, 477 U.S. at 255, 106 S.Ct. 2505. When the evidence presented shows a dispute over facts that might affect the outcome of the suit under governing law, summary judgment must be denied. Id. at 248, 106 S.Ct. 2505. The moving party has the initial burden of demonstrating that he is entitled to judgment as a matter of law. Celotex, 477 U.S. at 323, 106 S.Ct. 2548. Once this burden is met, the nonmoving party must “go beyond the pleadings” and designate specific facts to support each element of the cause of action, showing a genuine issue for trial. Id. at 322-23, 106 S.Ct. 2548. Neither party may rest on mere allegations or denials in the pleadings, Anderson, 477 U.S. at 248, 106 S.Ct. 2505, or upon conclusory statements in affidavits, Palucki v. Sears, Roebuck & Co., 879 F.2d" }, { "docid": "7163445", "title": "", "text": "issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986). Plaintiff, in response to Defendants’ motion, must “go beyond the pleadings and by [its] own affidavits, or by the ‘depositions, answers to interrogatories, and admissions on file,’ designate ‘specific facts showing that there is a genuine issue for trial.’ ” Id. at 324, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265. 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 not sufficient to bar summary judgment. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 2510, 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 nonmoving party. Laningham v. U.S. Navy, 813 F.2d 1236, 1242-43 (D.C.Cir.1987); Liberty Lobby, 477 U.S. at 251-52, 106 S.Ct. 2505, 91 L.Ed.2d 202 (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 color-able, or is not sufficiently probative, summary judgment may be granted.” Liberty Lobby, 477 U.S. at 249-50, 106 S.Ct. 2505, 91 L.Ed.2d 202 (internal citations omitted). “Mere allegations or denials of the adverse party’s pleading are not enough to prevent the issuance of 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, 1356, 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 nonmovant to “come forward with ‘specific" }, { "docid": "8206126", "title": "", "text": "the light most favorable to the nonmoving party.” Stewart v. Happy Herman’s Cheshire Bridge, Inc., 117 F.3d 1278, 1285 (11th Cir.1997), and “must resolve all reasonable doubts about the facts in favor of the non-mov-ant.” United of Omaha Life Ins. Co. v. Sun Life Ins. Co. of Am., 894 F.2d 1555, 1558 (11th Cir.1990). “By its very terms, this standard provides 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 v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) (emphasis in original). “As to materiality, the substantive law will identify which facts are material. Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Factual disputes that are irrelevant or unnecessary will not be counted.” Id. at 248, 106 S.Ct. 2505. Likewise, a dispute about a material fact is a “genuine” issue “if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Id. “For factual issues to be considered genuine, they must have a real basis in the record ... mere conclusions and unsupported factual allegations are legally insufficient to defeat a summary judgment motion.” Ellis v. England, 432 F.3d 1321, 1326 (11th Cir.2005) (citations omitted). The moving party “always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, which it believes demonstrate the absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Summary judgment is proper “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.” Id. at 322," }, { "docid": "4825697", "title": "", "text": "any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). The Supreme Court has clarified that this does not mean any factual dispute will defeat the motion. “By its very terms, this standard provides 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 v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Material facts are those that might affect the outcome of the suit under the governing law. Id. at 248, 106 S.Ct. 2505. 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.” Id. at 249, 106 S.Ct. 2505. Accordingly, summary judgment is inappropriate if there clearly exist 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, 91 L.Ed.2d 202 (1986); see JKC Holding Co., LLC v. Washington Sports Ventures, Inc., 264 F.3d 459, 465 (4th Cir.2001). The moving party bears the burden of showing there is no genuine issue as to any material fact. See Charbonnages de France v. Smith, 597 F.2d 406, 414 (4th Cir.1979). The moving party can meet this burden by demonstrating the absence of evidence to support the nonmoving party’s case. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). In response, the nonmoving party must then demonstrate specific facts showing that a genuine issue remains for trial. Id. at 324, 106 S.Ct. 2548. When ruling on a motion for summary judgment, the court must “view the facts and draw reasonable inferences ‘in the light most favorable to the party opposing the [summary judgment] motion,’ ” Scott v. Harris, 550 U.S. 372, 378, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007) (alteration in original) (quoting United States" }, { "docid": "14075283", "title": "", "text": "Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)); see also Rose-Maston v. NME Hosps., Inc., 133 F.3d 1104, 1107 (8th Cir.1998); Reed v. Woodruff County, Ark., 7 F.3d 808, 810 (8th Cir.1993). When a moving party has carried its burden under Rule 56(c), the party opposing summary judgment is required under Rule 56(e) to go beyond the pleadings, and by affidavits, or by the “depositions, answers to interrogatories, and admissions on file,” designate “specific facts showing that there is a genuine issue for trial.” Fed. R. Civ. P. 56(e); Celotex, 477 U.S. at 324, 106 S.Ct. 2548; Rabushka ex. rel. United States v. Crane Co., 122 F.3d 559, 562 (8th Cir.1997), cert. denied, 523 U.S. 1040, 118 S.Ct. 1336, 140 L.Ed.2d 498 (1998); McLaughlin v. Esselte Pendaflex Corp., 50 F.3d 507, 511 (8th Cir.1995); Beyerbach v. Sears, 49 F.3d 1324, 1325 (8th Cir.1995). An issue of material fact is “genuine” if it has a real basis in the record. Hartnagel, 953 F.2d at 394 (citing Matsushita Elec. Indus. Co., 475 U.S. at 586-87, 106 S.Ct. 1348). “Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment,” i.e., are “material.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Beyerbach, 49 F.3d at 1326; Hartnagel, 953 F.2d at 394. If a party fails to make a sufficient showing of an essential element of a claim with respect to which that party has the burden of proof, then the opposing party is “entitled to judgment as a matter of law.” Celotex Corp., 477 U.S. at 323, 106 S.Ct. 2548; In re Temporomandibular Joint (TMJ) Implants Prod. Liab. Litig., 118 F.3d 1484, 1492 (8th Cir.1997). Ultimately, the necessary proof that the nonmoving party must produce is not precisely measurable, but the evidence must be “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); Allison v. Flexway Trucking, Inc.," }, { "docid": "21013457", "title": "", "text": "grant summary judgment if the moving party demonstrates that there is no genuine issue as to any material fact, and that the moving party is entitled to judgment as a matter of law. See Fed.R.Civ.P. 56(c). In reviewing a motion for summary judgment, the Court views the facts in a light most favorable to the non-moving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Once a motion for summary judgment is properly made and supported, the opposing party has the burden of showing that a genuine dispute 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). 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 248, 106 S.Ct. 2505. A “material fact” is a fact that might affect the outcome of a party’s case. See Anderson, 477 U.S. at 248, 106 S.Ct. 2505; JKC Holding Co. v. Wash. Sports Ventures, Inc., 264 F.3d 459, 465 (4th Cir.2001). Whether a fact is considered to be “material” is determined by the substantive law, and “[o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment.” Anderson, 477 U.S. at 248, 106 S.Ct. 2505; see also Hooven-Lewis v. Caldera, 249 F.3d 259, 265 (4th Cir.2001). A “genuine” issue concerning a “material” fact arises when the evidence is sufficient to allow a reasonable jury to return a verdict in the nonmoving party’s favor. Anderson, 477 U.S. at 248, 106 S.Ct. 2505. “Rule 56(e) requires the nonmoving party to go beyond the pleadings and by [his] own affidavits, or by the ‘depositions, answers to interrogatories, and admissions on file,’ designate ‘specific facts showing that there is a genuine issue for trial.’ ” Celotex Corp. v. Catrett, 477 U.S. 317, 324, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). B. Analysis 1. Waiver" }, { "docid": "8860281", "title": "", "text": "as the opposing party was on notice that she had to come forward with all of her evidence.” Celotex Corp. v. Catrett, 477 U.S. 317, 326, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Accord, Routman v. Automatic Data Processing, Inc., 873 F.2d 970, 971 (6th Cir.1989). In Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986), the United States Supreme Court explained the nature of a motion for summary judgment: Rule 56(c) of the Federal Rules of Civil Procedure provides that summary judgment ‘shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with 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.’ By its very terms, this standard provides 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. As to materiality, the substantive law will identify which facts are material. Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Factual disputes that are irrelevant or unnecessary will not be counted. 477 U.S. at 247-48, 106 S.Ct. 2505 (emphasis in the original and added in part). Earlier the Supreme Court defined a material fact for Rule 56 purposes as “[w]here the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no ‘genuine issue for trial.’ ” Matsushita Electrical Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) (citations omitted). A motion for summary judgment is to be considered after adequate time for discovery. Celotex Corp. v. Catrett, 477 U.S. 317, 326, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Where there has been a reasonable opportunity for discovery, the party opposing the motion must make an" } ]

[ { "docid": "13282829", "title": "", "text": "decision to uphold the reversal by the board of review. United States v Crawford, 15 USCMA 31, 35 CMR 3 (1964), presented a problem similar to that encountered in this case. In Crawford, the question was whether the method by which enlisted court members were selected discriminated against the lower enlisted ranks in such a way as to threaten the integrity of the court-martial system and violate the Uniform Code of Military Justice. A majority of this Court in Crawford found no evidence in that case of any desire or intention to exclude any group or class on irrelevant, irrational or prohibited grounds. I dissented in Crawford because, contrary to the view of my brothers, I found evidence in the record that the convening authority impermissibly limited himself to senior noncommissioned officers in choosing enlisted court members in violation of Article 25, Code, supra. While disagreeing as to the import of the evidence, the Chief Judge and I were in agreement, in Crawford, that “nothing in the ‘Uniform Code expressly limits membership on a court-martial to persons of a particular rank’ and that Code, supra, Article 25, ‘implies all ranks and grades are eligible for appointment.’ ” (Id., at page 56.) Congress, in its wisdom, made all commmissioned officers eligible for consideration to serve on courts-martial. It conferred upon the convening authority the sole discretion to select from this group those who are “in his opinion, . . . best qualified for the duty by reason of age, education, training, experience, length of service, and judicial temperament.” The only other condition in the statute, which is not relevant to the problem before us, is the prohibition against appointing any person as a court member who was the accuser, a witness for the prosecution, or who had acted as investigating officer or counsel in the same case. Code, supra, Article 25 (d) (2). Not a single condition is inserted with regard to their rank or position within the military community, except those very general and personal factors which are to be considered by the convening authority in the exercise of his" } ]

[ { "docid": "21304120", "title": "", "text": "are “best qualified” to serve on court-martial panels simply because “selection for command is competitive.” 48 MJ at 255. In that regard, I note that, even though promotion to grade E-7 is competitive, we held in McClain that the blanket exclusion of ranks below E-7 was impermissible under Article 25. The majority opinion seemingly would justify a preference for commanders based solely on their selection for command and command experience, without regard to the specific criteria of Article 25. I do not support such a deviation from the requirements of Article 25. Second, I do not agree with the majority’s suggestion that the convening authority’s “guidance is inconsistent with appellant’s claim that non-commanders were systematically excluded from consideration.” 48 MJ at 255. On the contrary, the memoranda circulated by the convening authority indicated his concerns about court-martial panel service by commanders. It would not be surprising, in a military environment, for subordinates to implement that guidance in a manner that impermissibly excluded non-commanders. Although the statistical proof in this case is insufficient, that is different from suggesting that appellant’s argument is inconsistent with the convening authority’s guidance. SULLIVAN, Judge (concurring in the result): The Uniform Code of Military Justice does not permit the deliberate selection of commanders only as members of a court-martial. See United States v. Greene, 20 USCMA 232, 43 CMR 72 (1970). Article 25(d), UCMJ, 10 USC § 825(d), contrarily states: (d)(1) When it can be avoided, no member of an armed force may be tried by a court-martial any member of which is junior to him in rank or grade. (2) When convening a court-martial, the convening authority shall detail as members thereof such members of the armed forces as, in his opinion, are best qualified for the duty by reason of age, education, training, experience, length of service, and judicial temperament. No member of an armed force is eligible to serve as a member of a general or special court-martial when he is the accuser or a witness for the prosecution or has acted as investigating officer or as counsel in the same case. (Emphasis" }, { "docid": "13282824", "title": "", "text": "Ross, 15 USCMA 64, 35 CMR 36 (1964). However, the court stated that, “Although we find that selection of members solely from a list of senior officers is proper, we hasten to affirm our certainty that the qualities necessary for court membership are not necessarily limited to senior personnel.” Article 25(d)(2), Code, supra, provides in pertinent part that “the convening authority shall detail as members ... [of a court-martial] such members of the armed forces as, in his opinion, are best qualified for the duty by reason of age, education, training, experience, length of service, and judicial temperament.” This codal provision should not be read in a vacuum, however, for the Congress of the United States, has by virtue of the passage of Article 25(a) and (b), Code, supra, made eligible for membership on courts-martial “[a]ny commissioned officer on active duty” and “[a]ny warrant officer on active.duty” if, in the latter instance, the accused is of a lesser grade than that of commissioned officer. In the case at bar it is clear, from Sergeant Bohn’s affidavit, that the original panel proposed for this court by the special court-martial authority, Colonel Knapp, consisted of officers of the grade of lieutenant through colonel as was the then general practice. The Chief of Military Justice in the Office of the Staff Judge Advocate, Fifteenth Air Force, apparently acting on the basis of the above-mentioned memorandum from his immediate superior, returned the proposed panel and directed that a new panel be submitted consisting only of officers of the grade of lieutenant colonel and above. No reason was given for the rejection by the Chief of Military Justice of the two second lieutenants, one first lieutenant, the captain or the major, all of whom were listed in the first panel and who, obviously, had been considered by the special court-martial convening authority as “best qualified . . . [to serve as court members] by reason of age, education, training, experience, length of service, and judicial temperament.” Had they not been so considered, they would not have been originally selected by Colonel Knapp. Later, at the" }, { "docid": "7131154", "title": "", "text": "members thereof such members of the armed forces as, in his opinion, are best qualified for the duty by reason of age, education, training, experience, length of service, and judicial temperament. No member of an armed force is eligible to serve as a member of a general or special court-martial when he is the accuser or a witness for the prosecution or has acted as investigating officer or as counsel in the same case.” In United States v Allen, 5 USCMA 626, 18 CMR 250 (1955), this Court held that Article 25 required the convening authority personally to select the members of a court-martial that he appointed. In United States v Crawford, supra, enlisted members were selected by the convening authority largely from a list of senior, responsible, and available noncom-missioned officers furnished by his adjutant general. Dispute their having been chosen at random frota personnel rosters, this Court approved their personal appointment by the convening authority. In United States v Pearson, 15 USCMA 63, 35 CMR 35 (1964), the practice of obtaining lists of prospective court members senior in grade to the accused, from which members of the panel could be selected by the convening authority, was approved, the Court finding nothing “to cast doubt on the propriety of the selection process.” Id. United States v Greene, 20 USCMA 232, 43 CMR 72 (1970), also involved submission to the convening authority of a list of proposed court members from which he would personally make his final selection. In that case, a first submission of a list of officers ranging in grade from colonel to second lieutenant was rejected by the Chief of Military Justice on the basis that a staff judge advocate policy letter directed that only colonels and lieutenant colonels be considered for duty as members of courts-martial. A new list was submitted, limited to those grades, and the court was appointed from that list. On objection by defense counsel, the military judge directed the officer submitting the lists to reconsider the matter without regard to grade limitation and he determined that the second list should once more" }, { "docid": "8231940", "title": "", "text": "accused, all ranks are eligible to serve on a court-martial. [Citations omitted.] When rank is used as a device for deliberate and systematic exclusion of qualified persons, it becomes an irrelevant and impermissible basis for selection. 1 M.J. at 140-41 (footnote omitted). More recently, in United States v. Yager, 7 M.J. 171, 172 (C.M.A.1979), Judge Cook explained: In Daigle, the Court was confronted with a situation where a group of otherwise qualified individuals was excluded from membership on a court-martial solely on the basis of rank. There was no demonstrable relationship between the excluded ranks and Article 25(d)(2), which requires a convening authority to detail those “best qualified for the duty by reason of age, education, training, experience, length of service, and judicial temperament.” He did not find Daigle inconsistent with a system of appointing enlisting members which excluded grades E-l to E-3 because he concurred with the court below in that case that their disqualification “is an embodiment of the application of the statutory criteria.” Id. at 172. His rationale parallels to some extent that used by Chief Judge Quinn in upholding the procedures used in the Army for selecting enlisted members, even though statistics in that service revealed that no one in a grade below E-4 had ever served as a court-martial member and almost 90% of the enlisted members had been selected from grades of E-7, E-8, or E-9. United States v. Crawford, 15 U.S.C.M.A. 31, 35 C.M.R. 3 (1964). He wrote: Here, the only purpose in looking to the senior noncommissioned ranks was to obtain persons possessed of proper qualifications to judge and sentence an accused. There was no desire or intention to exclude any group or class on irrelevant, irrational, or prohibited grounds. In short, the evidence leaves no room to doubt that the selection process was designed only to find enlisted men qualified for court service. The senior noncommissioned ranks provided a convenient and logically probable source for eligibles. To refer first to those ranks for prospective members is not an impermissible choice. 15 U.S.C.M.A. at 40, 35 C.M.R. at 12. In the present" }, { "docid": "8231937", "title": "", "text": "Stat. 604 (1948)) made further amendments to the Articles of War. Article of War 4 was revised to authorize the appointment of enlisted persons to serve as members of general and special courts-martial if the accused was an enlisted person and requested enlisted membership on the court. In connection with this change, enlisted persons were also made subject to the provision that court members should not have “less than two years’ service ... if it can be avoided without manifest injury to the service.” Article 25(d)(2) of the Uniform Code is similar to Article of War 4 in its direction that “[w]hen convening a court-martial, the convening authority shall detail as members thereof such members of the armed forces as, in his opinion, are best qualified for the duty by reason of age, education, training, experience, length of service, and judicial temperament.” Under this codal provision length of service was to be considered by the convening authority; but Congress did not seek to prescribe any minimum for such service. For the first time “education” was specified as a criterion for appointment to courts-martial. As this Court noted in United States v. Greene, 20 U.S.C.M.A. at 236-37, 43 C.M.R. at 76-77, Article 25(d)(2) “should not be read in a vacuum, however, for the Congress of the United States, has by virtue of the passage of Article 25(a) and (b), Code, supra, made eligible for membership on courts-martial ‘[a]ny commissioned officer on active duty’ and ‘[a]ny warrant officer on active duty’ if, in the latter instance, the accused is of a lesser grade than that of commissioned officer.” Moreover, all enlisted members are eligible to serve, except for those in “the same unit as the accused.” Art. 25(c)(1). Besides the statutory preference for members senior to the accused, Art. 25(d)(1), “[n]ot a single condition is inserted with regard to ... [members’] rank or position within the military community, except those very general and personal factors which are to be considered by the convening authority in the exercise of his discretion.” Id. at 238, 43 C.M.R. at 78. This Court decided in Greene" }, { "docid": "13282823", "title": "", "text": "“Well, I’m satisfied that the accused understands the meaning and effect of a request for trial by military judge alone. Under the circumstances, in view of the fact that the convening authority has in fact considered’ other officers and elected to leave the court as it stands, I will approve the accused’s request for trial by military judge alone. It will be attached to the convening orders.” The Court of Military Review, which also considered the issue before us, affirmed the conviction on the ground that the selection of only senior commissioned officers to sit as members of the court did not violate the law (Article 25(d)(2), Code, supra) and was in accord with this Court’s opinions upholding a similar limitation in the selection of only senior noncommis-sioned officers in those cases where an accused has requested that enlisted men be included in the membership of the court. See, generally, United States v Crawford, 15 USCMA 31, 35 CMR 3 (1964); United States v Glidden, 15 USCMA 62, 35 CMR 34 (1964); United States v Ross, 15 USCMA 64, 35 CMR 36 (1964). However, the court stated that, “Although we find that selection of members solely from a list of senior officers is proper, we hasten to affirm our certainty that the qualities necessary for court membership are not necessarily limited to senior personnel.” Article 25(d)(2), Code, supra, provides in pertinent part that “the convening authority shall detail as members ... [of a court-martial] such members of the armed forces as, in his opinion, are best qualified for the duty by reason of age, education, training, experience, length of service, and judicial temperament.” This codal provision should not be read in a vacuum, however, for the Congress of the United States, has by virtue of the passage of Article 25(a) and (b), Code, supra, made eligible for membership on courts-martial “[a]ny commissioned officer on active duty” and “[a]ny warrant officer on active.duty” if, in the latter instance, the accused is of a lesser grade than that of commissioned officer. In the case at bar it is clear, from Sergeant Bohn’s" }, { "docid": "22230015", "title": "", "text": "careful consideration; which those bodies saw fit to pass and submit to the President; and which that Chief Executive, acting pursuant to his constitutional authority, determined to approve. To act otherwise is simply to substitute our judgment for that of those to whom the legislative authority is properly confided and to set military justice upon a course rejected by the representatives of the people. And when we view it properly, the statute inescapably makes every enlisted member of the armed forces, who is not a member of the same unit as the accused, eligible for appointment on courts-martial. First, Code, supra, Article 25, expressly declares, “Any enlisted member of an armed force on active duty who if not a member of the same unit as the accused is eligible to serve . . . for the trial of any enlisted member of an armed force.” This declaration can scarcely be found to contain any ambiguities or to require construction which would merely serve to introduce doubts not theretofore present. United States v Hicks, supra. Secondly, having made this general declaration of eligibility, the Article in question goes on to state certain specific substandards for use in selecting court members from this class of all enlisted men. It continues in effect and codifies the long policy of appointing no members to the court junior to the accused in rank or grade if such can be avoided. Code, supra, Article 25(d)(1). It confers upon the convening authority the sole discretion to select from the class first delineated in the enactment those who are, “in his opinion . . . best qualified for the duty by reason of age, education, training, experience, length of service, and judicial temperament.” The only other condition contained in the statute, which is not relevant to the problem before us, is the prohibition against appointing any person as a court member who was the accuser, a witness for the prosecution, or who had acted as investigating officer or counsel in the same case. Code, supra, Article 25(d)(2). The statute, therefore, sets up a class of enlisted members who," }, { "docid": "21304101", "title": "", "text": "by failure to “make a timely motion under this subsection,” unless the improper selection violates ROM 501(a), 502(a)(1), or 503(a)(2). Defense counsel did not request a stay under ROM 912(b)(1). However, because the Government does not assert waiver, we do not decide this case on that basis. Article 25(d) requires a convening authority to select court-martial members who, “in his opinion, are best qualified for the duty by reason of age, education, training, experience, length of service, and judicial temperament.” A military accused is not entitled to have a representative cross-section of the community detailed to his or her court-martial. United States v. Lewis, 46 MJ 338, 341 (199.7). On the other hand, members may not be selected solely on the basis of military grade. United States v. Nixon, 33 MJ 433 (CMA 1991). While it is permissible to look first at the senior grades for qualified court members, the lower eligible grades may not be systematically excluded. United States v. Crawford, 15 USCMA 31, 40, 35 CMR 3, 12 (1964); see United States v. Daigle, 1 MJ 139 (CMA 1975); United States v. Greene, 20 USCMA 232, 43 CMR 72 (1970). Furthermore, a court-martial may not be “packed” to achieve a desired result. Hilow, 32 MJ at 440; see United States v. Smith, 27 MJ 242 (CMA 1988) (female members selected because ease involved sex crime); United States v. McClain, 22 MJ 124 (CMA 1986) (systematic exclusion of junior officers and enlisted members in pay grade E-6 and below to avoid light sentences); Daigle, supra (lieutenants and warrant officers excluded); see also United States v. Yager, 7 MJ 171, 173 (CMA 1979) (permitted exclusion of soldiers in pay grades E-l and E-2 as presumptively unqualified under Article 25(d)). Court packing may occur if a subordinate packs the list of nominees presented to the convening authority. United States v. Hilow, supra. Court packing does not deprive the court-martial of jurisdiction, but it is a form of unlawful command influence. Lewis, 46 MJ at 341; Hilow, 32 MJ at 441. Thus, when an issue of court packing is raised, “we may" }, { "docid": "14140232", "title": "", "text": "DECISION ARROWOOD, Judge: The accused was found guilty of conspiracy to sell and the wrongful sale of 4.75 kilograms of marijuana in the hashish form in violation of Articles 81 and 134, Uniform Code of Military Justice, 10 U.S.C. §§ 881, 934. In the assignments of error we discuss, the accused contends that he should not have been tried by court-martial since he was previously tried by a Spanish administrative court for the offenses, that he was denied his right to a speedy trial by a 188 day pretrial restriction, and that the court-martial members who heard his case were improperly selected. We disagree with each of his contentions. Appellate defense counsel assert that the court-martial which tried the accused was improperly selected. The impropriety began, it is alleged, when pursuant to the accused’s request, the convening authority appointed enlisted personnel to the court, and excused several of the appointed officers, primarily those junior in rank. Testimony showed that the tria} experience of the original panel of members had been provided to the convening authority, and it was assumed he used this information when he excused the officers from the court. It was alleged that his consideration of the trial experience of the members had the “inevitable effect of discriminating against lower ranking officers.” The convening authority is directed by Article 25, Code, 10 U.S.C. § 825, supra, to select as court members the “best qualified for duty by reason of age, education, training, experience, length of service, and judicial temperament.” Previous trial experience is an indicator of an individual’s training and experience and can properly be considered. There is no evidence in the record that this was the sole criterion used or that it would systematically exclude lower ranking officers had it been the sole criterion applied. See United States v. Greene, 20 U.S.C.M.A. 232, 43 C.M.R. 72 (1970); United States v. Crawford, 15 U.S.C.M.A. 31, 35 C.M.R. 3 (1964). In fact, the two senior officers on the court had no trial experience. We find no basis to suspect any impropriety in the excusal of the previously appointed officers." }, { "docid": "14256903", "title": "", "text": "mandate that the convening authority must himself detail military judges and counsel, Judge Perry cautioned that: While we now hold that the convening authority must personally detail court-martial personnel under Articles 26 and 27, we find no impediment to his receiving staff assistance in the selection of those personnel, just as we found no barrier to such aid in the selection of court members under Article 25 in United States v. Kemp, 22 U.S.C.M.A. 152, 46 C.M.R. 152 (1973). The fact remains, if the convening authority personally must detail the personnel, then it is his decision, regardless of who played what role in helping him make that decision and that is what we believe Congress intended by these provisions. Id. at 7 n. 8. The convening authority here was given a list of names gathered for him by the staff judge advocate, who utilized senior staff personnel in the nomination of the requested enlisted members; these staff members were advised, in general, to “pick people because of age, experience, maturity, length of service, that sort of thing,” and that the nominees should be “spread . . . out among the ranks.” Satisfied that the enlisted nominees “were qualified because of their rank and their age and their success in the Marine Corps,” the staff judge advocate forwarded the names of the officer and enlisted nominees to the convening authority with the advice that “You are not required to accept these people as members. If you want someone else, we stand ready at any time to change the convening order at your direction”; the convening authority was also advised, pursuant to Greene, supra, that he should not “stack the court with high-ranking people.” In evaluating the officer nominees, the staff judge advocate testified that he “thought they were qualified just by the basis of fact that they were lieutenant colonels, majors, captains and lieutenants. They had been successful to get that far. ... I just assumed that someone with that age, rank, experience and ability would have judicial temperament.” The convening authority testified that he personally chose the members of appellant’s" }, { "docid": "22230020", "title": "", "text": "All these considerations make clear beyond cavil the Congressional intent that all enlisted personnel be eligible for consideration by the convening authority in selecting enlisted members for courts-martial, and, as noted above, the express, unambiguous words of the statute Command it. Yet, turning to the evidence before us, we find that each and every affidavit presented declares that the convening authority limited his choice of members to the very class which Congress hoped would not become the sole source of eligibles, i. e., “senior noncommissioned officers.” Thus, the staff judge advocate listed as recommended court members only those \"senior noncommissioned officers who were regarded as responsible and available for court-martial duty.” The affidavit which he filed indicates he considered seniority of rank the governing “indication of civic responsibility and intelligence.” His deputy deposed that the list submitted to the convening authority was limited to “nine or ten . . . mature, responsible and experienced senior noncommissioned officers.” And those senior noncommissioned officers considered most qualified for appointment were duly marked with double asterisks by the staff judge advocate. Finally, from this list and after an apparently extended hunt for another senior noncommissioned officer of the colored race, the enlisted members actually appointed consisted of three sergeants-major (E-9) and one master sergeant (E-7). Truly, this was precisely the sort of court which Mr. Spiegelberg, in testifying before the Armed Services Committee, feared would, in practice, result, and the sort of members to which the Committee Counsel referred as “some of these ‘crusty’ noncoms.” House Hearings, supra, page 1140. Upon the face, therefore, of the record before us, the very letter of Code, supra, Article 25, was violated, for — contrary to its terms— the convening authority looked only to a small group of senior noncommis-sioned officers in selecting enlisted court members rather than making a choice from “such members of the armed forces as, in his opinion, are best qualified for the duty by reason of age, education, training, experience, length of service, and judicial temperament.” To hold to the contrary simply writes into the statute, as a matter of law," }, { "docid": "8231951", "title": "", "text": "in similar detail the qualifications for court member. . Judge Perry concurred in the result in Yager; Chief Judge Fletcher did not participate. . Judge Kilday concurred in the result and Judge Ferguson dissented. . Of course, sometimes the probable impact of an act helps illuminate the intent of the act. . Thus, a staff judge advocate might ask a court member whether trial counsel adequately presented his evidence or argued the case. . We do not impugn in any way the good faith of the convening authority. According to the stipulated testimony, General Livsey \"specifically asked” his staff judge advocate as to the lawfulness of certain aspects of the selection process. Unfortunately, the advice he received was in error. COX, Judge (concurring in the result): I disagree with any language in the principal opinion which appears to per se prohibit the appointment of a court-martial panel consisting entirely of senior officers or enlisted servicemembers. The convening authority is required to select as members those who “in his opinion, are best qualified for the duty by reason of age, education, training, experience, length of service, and judicial temperament.” Article 25(d)(2), Uniform Code of Military Justice, 10 U.S.C. § 825(d)(2). Based on the statutory selection criteria, the best qualified members in some cases may well be senior officers and enlisted personnel. Indeed, in this case I am convinced beyond any reasonable doubt that the convening authority was sensitive to his statutory duties to appoint members who “in his opinion ... [were] best qualified ...” in accordance with Article 25(d)(2). I recognize that when a convening authority has systematically excluded a group of otherwise qualified servicepersons from being considered for court-martial membership for an irrational or inappropriate reason, we have found the selection process to be improper. See United States v. Daigle, 1 M.J. 139 (C.M.A.1975) (convening authority did not consider statutory criteria, but only nominees from lower commander); and United States v. Greene, 20 U.S.C.M.A. 232, 43 C.M.R. 72 (1970) (convening authority considered only 0-5s and 0-6s for membership). The deliberate selection or exclusion of a certain class of servicepersons for" }, { "docid": "14140234", "title": "", "text": "This frivolous motion was properly dismissed by the trial judge and did not oust the convening authority from his statutory reviewing authority. United States v. Owens, 27 C.M.R. 658 (A.B.R.1959). A second objection to the selection of the court members is raised for the first time before this Court. Appellate defense counsel claim that the list from which the enlisted personnel were selected improperly excluded everyone who was not “hard” or “tough”. The claim was based on evidence submitted to this Court by affidavits that the sergeant who prepared the list had “jokingly” implied that he wanted members who were “hard” or “tough”. One affiant stated that the sergeant jokingly said to her that he wanted to get the “toughest NCOs that he could find.” The same individual also stated she overheard part of the sergeant’s telephone conversation with the senior enlisted adviser when he was asked to provide names of prospective members who were “tough” or “hard”. The affiant did not remember the exact words but described the sergeant as “speaking in a joking manner”. Through affidavits filed by the government, the sergeant did not deny the possibility that he kiddingly stated “we would get hard or tough members”, but he did deny making a re quest for “hard” or “tough” members to the senior enlisted adviser. The senior enlisted adviser stated that he was asked to provide names of possible “Top 3” NCO candidates for the court. He denied that he was requested to provide individuals who were “tough” or “hard”. A second affiant, an area defense counsel, stated that the sergeant “jokingly” implied to him after the trial that it would be unwise to request enlisted members for future cases because he was choosing the prospective members. We carefully reviewed all affidavits and find the comments concerning the selection of “tough” or “hard” court members were made in jest and considered by the individuals who overheard them to have been said in a joking or kidding manner. Accordingly, there is no evidence before this Court that either the sergeant or the senior enlisted adviser actually employed improper" }, { "docid": "8231939", "title": "", "text": "that a court-martial panel had been improperly selected when its membership consisted of three colonels and six lieutenant colonels. The Court reasoned that, in view of the codal provisions for eligibility to court membership and the standards for selection of court members, a convening authority violated the Code by appointing only very senior officers to the court-martial. The Court also cited United States v. Hedges, 11 U.S.C.M.A. 642, 29 C.M.R. 458 (1960), where because of its “composition ... the court-martial ... had the distinct appearance of being ‘hand-picked’ by the Government.” See 20 U.S.C.M.A. at 237, 43 C.M.R. at 77. Later, in United States v. Daigle, supra, Judge Cook, writing for a unanimous Court, held improper the convening authority's fixed policy of excluding lieutenants and warrant officers from the membership of courts-martial. He emphasized: Discrimination in the selection of court members on the basis of improper criteria threatens the integrity of the military justice system and violates the Uniform Code. Except for the statutory preference for exclusion of persons in a rank lower than the accused, all ranks are eligible to serve on a court-martial. [Citations omitted.] When rank is used as a device for deliberate and systematic exclusion of qualified persons, it becomes an irrelevant and impermissible basis for selection. 1 M.J. at 140-41 (footnote omitted). More recently, in United States v. Yager, 7 M.J. 171, 172 (C.M.A.1979), Judge Cook explained: In Daigle, the Court was confronted with a situation where a group of otherwise qualified individuals was excluded from membership on a court-martial solely on the basis of rank. There was no demonstrable relationship between the excluded ranks and Article 25(d)(2), which requires a convening authority to detail those “best qualified for the duty by reason of age, education, training, experience, length of service, and judicial temperament.” He did not find Daigle inconsistent with a system of appointing enlisting members which excluded grades E-l to E-3 because he concurred with the court below in that case that their disqualification “is an embodiment of the application of the statutory criteria.” Id. at 172. His rationale parallels to some extent" }, { "docid": "13282816", "title": "", "text": "Air Force Base for officers in the grades of second lieutenant through major to sit as members of courts-martial. Defense counsel contended, before the military judge, that these exhibits reflect command influence over courts-martial, by eliminating first lieutenants, captains, and majors, from sitting as court members and, in effect, they express dissatisfaction by the Fifteenth Air Force with results of courts-martial held at Fifteenth Air Force bases. He also contended that by systematically excluding young officers from the court, the membership thereof has been restricted solely to professional career officers, and the courts have thus been denied the “valuable thoughts and ideas” which the younger officers, many of whom are citizen soldiers, could bring to the discussion process. He further asserted that the memorandum, which dictated the composition of the court, reflected an element of possible racial discrimination inasmuch as the chance that a Negro officer being selected as a member has been effectively reduced. “There are few, if any, Negro lieutenant colonels or colonels on this base. The percentage of Negro junior officers is much higher than the percentage of Negro senior officers.” Appellate Exhibit III, an article from page 3 of the Air Force Times, dated December 3, 1969, containing some statistical data on the number of Negroes in each officer grade, was introduced in support of this contention. The prosecution rejected the claim of command influence and argued that the court was selected in accordance with Article 25(d)(2), Uniform Code of Military Justice, 10 USC § 825, and paragraph 4d, Manual for Courts-Martial, United States, 1969 (Revised edition); that is, “they were chosen as best qualified by virtue of age, education, training, experience, length of service, and judicial temperament.” According to trial counsel, the policy statement enunciated by the Staff Judge Advocate, in his memorandum, complied with the Manual provision which requires the convening authority to appoint mature officers, taking into consideration their training and education, that these individuals would be better able, than younger officers, to apply military justice on a fair basis. He contended that the military judge should reject the request for trial by" }, { "docid": "13282817", "title": "", "text": "much higher than the percentage of Negro senior officers.” Appellate Exhibit III, an article from page 3 of the Air Force Times, dated December 3, 1969, containing some statistical data on the number of Negroes in each officer grade, was introduced in support of this contention. The prosecution rejected the claim of command influence and argued that the court was selected in accordance with Article 25(d)(2), Uniform Code of Military Justice, 10 USC § 825, and paragraph 4d, Manual for Courts-Martial, United States, 1969 (Revised edition); that is, “they were chosen as best qualified by virtue of age, education, training, experience, length of service, and judicial temperament.” According to trial counsel, the policy statement enunciated by the Staff Judge Advocate, in his memorandum, complied with the Manual provision which requires the convening authority to appoint mature officers, taking into consideration their training and education, that these individuals would be better able, than younger officers, to apply military justice on a fair basis. He contended that the military judge should reject the request for trial by judge alone and impanel the court and try the case before the officers designated in the convening order. Finding accused’s basis for the request for trial by military judge alone unique, the judge suggested that he would consider a motion from defense counsel for appropriate relief from being tried until a court could be convened, as was the previous practice, where all officers in all grades are eligible to sit as members of the court. Upon receipt of the motion he recessed the hearing and directed trial counsel to telephonically ascertain from the convening authority whether the latter, in the selection of the present court members, did in fact consider officers of lower grades than colonel and lieutenant colonel when making his selection. Upon reconvening, trial counsel advised that he had contacted the convening authority’s representative, the Staff Judge Advocate at Fifteenth Air Force and was advised that, “Consideration of members for Staff Judge Advocate recommendation to the Commander, Fifteenth Air Force, did not go outside the list of officers submitted by the special court-martial" }, { "docid": "13282830", "title": "", "text": "to persons of a particular rank’ and that Code, supra, Article 25, ‘implies all ranks and grades are eligible for appointment.’ ” (Id., at page 56.) Congress, in its wisdom, made all commmissioned officers eligible for consideration to serve on courts-martial. It conferred upon the convening authority the sole discretion to select from this group those who are “in his opinion, . . . best qualified for the duty by reason of age, education, training, experience, length of service, and judicial temperament.” The only other condition in the statute, which is not relevant to the problem before us, is the prohibition against appointing any person as a court member who was the accuser, a witness for the prosecution, or who had acted as investigating officer or counsel in the same case. Code, supra, Article 25 (d) (2). Not a single condition is inserted with regard to their rank or position within the military community, except those very general and personal factors which are to be considered by the convening authority in the exercise of his discretion. Turning to the facts before us, we are not convinced that an improper standard was not used for the selection of the members of this court. In this regard we note the following: (1) The questionable memorandum from the Staff Judge Advocate, Fifteenth Air Force, rescinded because of the objections raised at this trial; (2) the action of the Chief of Military Justice, Fifteenth Air Force, in rejecting the original panel selected by the special court-martial authority; (3) the latter’s direction that a new panel consisting only of lieutenant colonels and above be submitted for consideration; (4) the resulting composition of the court both before trial and after objections by trial defense counsel; (5) the fact that, as agreed by the prosecution at trial, the composition of this court was a clear departure from past practices and was dictated solely by the contents of the Staff Judge Advocate’s memorandum. Together, these factors raise at least a reasonable doubt as to whether the hurried decision to remain with this court was an unfettered one. Such" }, { "docid": "8231952", "title": "", "text": "by reason of age, education, training, experience, length of service, and judicial temperament.” Article 25(d)(2), Uniform Code of Military Justice, 10 U.S.C. § 825(d)(2). Based on the statutory selection criteria, the best qualified members in some cases may well be senior officers and enlisted personnel. Indeed, in this case I am convinced beyond any reasonable doubt that the convening authority was sensitive to his statutory duties to appoint members who “in his opinion ... [were] best qualified ...” in accordance with Article 25(d)(2). I recognize that when a convening authority has systematically excluded a group of otherwise qualified servicepersons from being considered for court-martial membership for an irrational or inappropriate reason, we have found the selection process to be improper. See United States v. Daigle, 1 M.J. 139 (C.M.A.1975) (convening authority did not consider statutory criteria, but only nominees from lower commander); and United States v. Greene, 20 U.S.C.M.A. 232, 43 C.M.R. 72 (1970) (convening authority considered only 0-5s and 0-6s for membership). The deliberate selection or exclusion of a certain class of servicepersons for the purpose of increasing the severity of the sentence is wrong. A proper concern, however, is the selection of servicepersons who will adjudge a sentence that is fair and just, considering the circumstances of the particular case. Because of the keen sensitivity shown by the convening authority, we normally would apply the presumption of regularity and assume that the convening authority was aware of his responsibilities and performed them properly. See United States v. Moschella, 20 U.S.C.M.A. 543, 43 C.M.R. 383 (1971). We cannot do that here. I concur in the result here because the military judge found, as a matter of fact, that the staff judge advocate recommended selection based upon concerns that the sentence might be too lenient. The only concern the staff judge advocate should have had was fairness. Whether the sentence is lenient or harsh is subjective and properly the concern of: (1) the court-martial; and (2) the convening authority exercising clemency — otherwise Congress would have authorized the convening authority to pick those members he thought most likely to award" }, { "docid": "14140233", "title": "", "text": "and it was assumed he used this information when he excused the officers from the court. It was alleged that his consideration of the trial experience of the members had the “inevitable effect of discriminating against lower ranking officers.” The convening authority is directed by Article 25, Code, 10 U.S.C. § 825, supra, to select as court members the “best qualified for duty by reason of age, education, training, experience, length of service, and judicial temperament.” Previous trial experience is an indicator of an individual’s training and experience and can properly be considered. There is no evidence in the record that this was the sole criterion used or that it would systematically exclude lower ranking officers had it been the sole criterion applied. See United States v. Greene, 20 U.S.C.M.A. 232, 43 C.M.R. 72 (1970); United States v. Crawford, 15 U.S.C.M.A. 31, 35 C.M.R. 3 (1964). In fact, the two senior officers on the court had no trial experience. We find no basis to suspect any impropriety in the excusal of the previously appointed officers. This frivolous motion was properly dismissed by the trial judge and did not oust the convening authority from his statutory reviewing authority. United States v. Owens, 27 C.M.R. 658 (A.B.R.1959). A second objection to the selection of the court members is raised for the first time before this Court. Appellate defense counsel claim that the list from which the enlisted personnel were selected improperly excluded everyone who was not “hard” or “tough”. The claim was based on evidence submitted to this Court by affidavits that the sergeant who prepared the list had “jokingly” implied that he wanted members who were “hard” or “tough”. One affiant stated that the sergeant jokingly said to her that he wanted to get the “toughest NCOs that he could find.” The same individual also stated she overheard part of the sergeant’s telephone conversation with the senior enlisted adviser when he was asked to provide names of prospective members who were “tough” or “hard”. The affiant did not remember the exact words but described the sergeant as “speaking in a joking" }, { "docid": "21304100", "title": "", "text": "unique military experience which is conducive to selection as a court-martial member. The fact that there is a high percent age of commanders on a court, in and of itself, is not indicative of an improper selection process. There is no evidence indicating that the members that were selected in this court-martial panel were selected to procure a particular outcome or a particular sentence. And, as I stated, therefore, the motion is denied. B. Discussion Appellant now argues that the almost total exclusion of non-commanders violated Article 25. The Government argues that a preference for commanders does not invalidate the selection process, and that there is no evidence that the convening authority selected the members for an improper reason. ROM 912(b)(1), Manual for Courts-Martial, United States (1995 ed.), provides that, when evidence is discovered that court members may have been selected improperly, a party may move to stay the proceedings. ROM 912(b)(2) authorizes the military judge to stay the proceedings until the members have been properly selected. ROM 912(b)(3) provides that improper selection is waived by failure to “make a timely motion under this subsection,” unless the improper selection violates ROM 501(a), 502(a)(1), or 503(a)(2). Defense counsel did not request a stay under ROM 912(b)(1). However, because the Government does not assert waiver, we do not decide this case on that basis. Article 25(d) requires a convening authority to select court-martial members who, “in his opinion, are best qualified for the duty by reason of age, education, training, experience, length of service, and judicial temperament.” A military accused is not entitled to have a representative cross-section of the community detailed to his or her court-martial. United States v. Lewis, 46 MJ 338, 341 (199.7). On the other hand, members may not be selected solely on the basis of military grade. United States v. Nixon, 33 MJ 433 (CMA 1991). While it is permissible to look first at the senior grades for qualified court members, the lower eligible grades may not be systematically excluded. United States v. Crawford, 15 USCMA 31, 40, 35 CMR 3, 12 (1964); see United States v." } ]

[ { "docid": "5075958", "title": "", "text": "common law, may nonetheless be appropriate for failure to plead with the sufficiency or particularity required by Fed.R.Civ.P. 9(b). The Elevator argues that the fraud allegations here are insufficient under the standards of Rule 9(b), as articulated in this court’s decision in De Wit v. Firstar Corp., 879 F.Supp. 947, 989 (N.D.Iowa 1995) (De Wit I). The Elevator contends that the pleadings here are insufficient, because they do not adequately identify what fraudulent statements were purportedly made, by whom they were made, since the statements are pleaded as having been made by one person “and/or” another, whether they were oral or in writing, when they were made, since particular times, dates, and places the statements were purportedly made are not identified, and that knowledge of the falsity of alleged misstatements is alleged in no more than a conclusory fashion. The Producers assert that they drafted their fraud allegations with the standards identified in the De Wit I decision specifically in mind, but they further contend that the usual remedy when a party fails to plead fraud with sufficient particularity is not dismissal, but allowing the pleader to replead with more particularity within a specified time. The Producers cite for the proposition that they should be allowed to amend any inadequately pleaded fraud claims Nagle v. Merrill Lynch, Pierce, Fenner & Smith, 790 F.Supp. 203, 210 (S.D.Iowa 1992), and Bennett v. Berg, 685 F.2d 1053, 1062 (8th Cir.1982), modified on reh’g, 710 F.2d 1361 (8th Cir.) (en banc), cert. denied, 464 U.S. 1008, 104 S.Ct. 527, 78 L.Ed.2d 710 (1983). In addition, the Producers contend that the time of the alleged misstatements is sufficiently pleaded, because it is apparent from the dates the HTAs were executed, and “[a]l-though not specifically pleaded, Counterclaim defendant is aware that the discussions counterclaim plaintiffs allege took place at the office of [the Elevator] prior to or at the time the counterclaim plaintiffs signed these contracts.” Counterclaim Plaintiffs’ Brief In Resistance To Motion To Dismiss (North Central Case), at 24-25. As to identity of the person making the representations, and the content of those representations, the" } ]

[ { "docid": "5893291", "title": "", "text": "e.g., Wright v. Brooke Group Ltd., 114 F.Supp.2d 797, 832 (N.D.Iowa 2000) (reiterating the requirements for pleading fraud pursuant to Rule 9(b)). Although the “fraud” claims were originally asserted in state court, prior to removal, the Vendors offered and were allowed to file an amended complaint after removal, which made their claims subject to the heightened pleading requirements of Rule 9(b) of the Federal Rules of Civil Procedure. See, e.g., Schaller Tel. Co. v. Golden Sky Sys., Inc., 139 F.Supp.2d 1071, 1099 n. 9 (N.D.Iowa 2001). As this court observed in Schaller Telephone Company, There is something counterintuitive about the court being required to consider, on a motion for summary judgment, a claim that it almost undoubtedly would have found insufficiently pleaded on a motion to dismiss. Nevertheless, the matter is currently presented on a summary judgment procedural footing. Thus, the question is whether genuine issues of material fact preclude summary judgment on the claim or whether the defendants are otherwise entitled to summary judgment on the claim as a matter of law. See Fed. R. Civ. P. 56. Schaller Tel. Co., 139 F.Supp.2d at 1098 n. 9. The same situation obtains here, where the court must consider pursuant to Rule 56 standards 'the viability of \"Fraud” claims that were inadequately pleaded under Rule 12(b)(6) and Rule 9(b). . The Vendors apparently have abandoned their allegations in their complaint that \"predicate acts” included violations of the Iowa Business Corporations Act and the Uniform Commercial Code, because they make no reference to these allegations in their resistance to the defendants’ assertions that the Vendors cannot generate genuine issues of material fact on any \"predicate acts.” . Even if \"fraudulent transfers\" could be considered \"predicate acts” for purposes of a RICO claim, the court determined above that the Vendors had failed to generate genuine issues of material fact that any \"fraudulent transfers” occurred. Instead, the supposed “fraudulent transfers\" involved property subject to liens by creditors. In Sinclair v. Hawke, 314 F.3d 934 (8th Cir.2003), the Eighth Circuit Court of Appeals observed, \" 'Bankers do not become racketeers by acting like bankers.' Terry" }, { "docid": "452695", "title": "", "text": "these matters is required here. Rule 9(b) of the Federal Rules of Civil Procedure “ ‘requires a plaintiff to allege with particularity the facts constituting the fraud.’ ” See Brown, 987 F.Supp. at 1155 (quoting Independent Business Forms v. A-M Graphics, 127 F.3d 698, 703 n. 2 (8th Cir.1997)). “ When pleading fraud, a plaintiff cannot simply make conclusory allegations.’ ” Id. (quoting Roberts v. Francis, 128 F.3d 647, 651 (8th Cir.1997)). In Commercial Property Inv., Inc. v. Quality Inns Int’l, Inc., 61 F.3d 639 (8th Cir.1995), the Eighth Circuit Court of Appeals explained: Rule 9(b) requires that “[i]n all aver-ments of fraud or mistake, the circumstances constituting fraud or mistake shall be stated with particularity.” “ ‘Circumstances’ include such matters as the time, place and content of false representations, as well as the identity of the person making the misrepresentation and what was obtained or given up thereby.” Bennett v. Berg, 685 F.2d 1053, 1062 (8th Cir.1982), adhered to on reh’g, 710 F.2d 1361 (8th Cir.), cert. denied, 464 U.S. 1008, 104 S.Ct. 527, 78 L.Ed.2d 710 (1983). Because one of the main purposes of the rule is to facilitate a defendant’s ability to respond and to prepare a defense to charges of fraud, Greenwood v. Dittmer, 776 F.2d 785, 789 (8th Cir.1985), conclusory allegations that a defendant’s conduct was fraudulent and deceptive are not sufficient to satisfy the rule. In re Flight Transp. Corp. Sec. Litig., 593 F.Supp. 612, 620 (D.Minn.1984). Commercial Property, 61 F.3d at 644; see Roberts, 128 F.3d at 651 (noting that factors a court should examine in determining whether the “circumstances” constituting fraud are stated with particularity under Rule 9(b) “include the time, place, and contents of the alleged fraud; the identity of the person allegedly committing fraud; and what was given up or obtained by the alleged fraud.”). Defendants assert that Mr. Wright’s allegations of fraudulent misrepresentation and fraudulent nondisclosure fall short of satisfying Rule 9(b), because defendants contend that Mr. Wright has failed to identify the speakers or the time and place of the alleged fraudulent statements necessary to comply with Rule" }, { "docid": "6842055", "title": "", "text": "omitted)); see BBSerCo, Inc. v. Metrix Co., 324 F.3d 955, 961 (8th Cir.2003) (“ ‘concealment of or failure to disclose a material fact can constitute fraud in Iowa.’ ”) (quoting Cornell v. Wun- schel, 408 N.W.2d 369, 374 (Iowa 1987)). Additionally, the plaintiff must show that the defendant was under a legal duty to communicate the withheld information to prevail on a fraudulent nondisclosure claim. See id. The plaintiff need not show a fiduciary duty existed to prevail, and may, rather, establish that a duty arose from “inequality of condition and knowledge, or other circumstances shown by a particular fact situation.” Irons v. Community State Bank, 461 N.W.2d 849, 854 (Iowa Ct.App.1990); see Schaller Telephone Co. v. Golden Sky Sys., Inc., 298 F.3d 736, 740 (8th Cir.2002)(noting that under Iowa law a duty to reveal arises when “ ‘one with superior knowledge, dealing with inexperienced persons who rely on him or her, purposely suppresses the truth respecting a material fact involved in the transaction.’ ”) (quoting Clark v. McDaniel, 546 N.W.2d 590, 592 (Iowa 1996)). The plaintiff must prove the elements of fraudulent misrepresentation or fraudulent nondisclosure by clear and convincing evidence. Wright v. Brooke Group Ltd., 114 F.Supp.2d 797, 820 (N.D.Iowa 2000); In re Marriage of Cutler, 588 N.W.2d 425, 430 (Iowa 1999); see also Ralfs v. Mowry, 586 N.W.2d 369, 373 (Iowa 1998)(describing the burden as proving the existence of fraud “by clear, satisfactory, and convincing evidence”) (citing Benson v. Richardson, 537 N.W.2d 748, 756 (Iowa 1995)). Both fraudulent misrepresentation and fraudulent nondisclosure claims must be plead with the particularity required by Rule 9(b), as discussed supra part II.B.2.b. See, e.g., Williams, 293 F.Supp.2d at 971; Wright, 114 F.Supp.2d at 835; see Roberts v. Francis, M.D., 128 F.3d 647, 651 (8th Cir.l997)(analyzing whether or not plaintiffs fraudulent concealment claim was plead with particularity in accord with Rule 9(b)). 4. Analysis Turning first to the fraudulent misrepresentation claim in Count VI, the Complaint asserts that on the dates that the loans were made to Schuster and on the dates Schuster made investments in Yournet, the Yournet related entities and/or" }, { "docid": "3057173", "title": "", "text": "fraud or mistake shall be stated with particularity. Malice, intent, knowledge, and other condition of the mind of a person may be averred generally.”); see also Iowa Health Sys. v. Trinity Health Corp., 177 F.Supp.2d 897, 913-17 (N.D.Iowa 2001) (pleading fraud); Wright v. Brooke Group, Ltd., 114 F.Supp.2d 797, 832-33 (N.D.Iowa 2000) (same); Brown v. North Cent. F.S., Inc., 987 F.Supp. 1150, 1155-57 (N.D.Iowa 1997) (pleading fraud); Brown v. North Cent. F.S., Inc., 173 F.R.D. 658, 669 (N.D.Iowa 1997) (same); North Cent. F.S., Inc. v. Brown, 951 F.Supp. 1383, 1408 (N.D.Iowa 1996) (same, quoting DeWit v. Firstar Corp., 879 F.Supp. 947, 989-90 (N.D.Iowa 1995)). Finally, just because the agreements between the Producers and the Packing Companies fall within the PSA does not mean that the provisions of those agreements are subject to some special scrutiny. See Mahon, 416 U.S. at 107-08, 94 S.Ct. 1626 (“[Tjhere is no indication that, lurking within this intention to control deceptive and monopolistic practices in the packing industry, lies a further intention to guarantee persons who sell cattle to such packers a special favored position.”). To the contrary, “the purpose behind the [PSA] ‘was not to ... upset the traditional principles of freedom of contract.’ ” IBP, Inc., 187 F.3d at 977 (quoting Jackson, 53 F.3d at 1458). Moreover, “[t]he PSA was designed to promote efficiency, not frustrate it.” Jackson, 53 F.3d at 1458. Therefore, this court observed, above, that provisions that one might ordinarily expect to find in contracts for the sale and purchase of other goods do not suddenly become “unfair” or “deceptive” within the prohibitions of the PSA simply because they are in a contract between a packer and a livestock producer. As the Packing Companies contend, the Uniform Commercial Code authorizes provisions for the transfer of risk of loss in contracts for the sale of goods. See Iowa Code § 554.2509(4) (providing that the provisions for risk of loss provided in other subsections are “subject to contrary agreement of the parties”). Contracts for the sale of goods include contracts for the sale of live animals. See Iowa Code § 554.2105. Even" }, { "docid": "10067323", "title": "", "text": "the fraudulent events pleaded. They also assert that they have alleged that the applicant for the ’669 mark, the Tennessee corporation, was aware of at least one third party having superior rights to use the registered mark, and that this allegation must be taken as true under the standards applicable to a motion pursuant to Rules 12(b)(6) and 9(b). As to the challenge to their allegations that the designation of services was knowingly over-broad and misleading, the Trinity Iowa Plaintiffs contend that they have adequately pleaded that the applicant overstated the scope of services with which the mark was to be used, and thus committed fraud on the PTO. In reply, the Trinity Michigan Defendants reiterate that the Trinity Iowa Plaintiffs have failed to disclose the sources of their “information and belief’ for their fraud allegations, and thus cannot rely on such allegations. b. Analysis i. Rule 9(b) requirements for pleading fraud. This court has articulated the standards for pleading fraud with the particularity required by Rule 9(b) of the Federal Rules of Civil Procedure in several decisions. See Wright v. Brooke Group, Ltd., 114 F.Supp.2d 797, 832-33 (N.D.Iowa 2000); Doe v. Hartz, 52 F.Supp.2d 1027, 1055 (N.D.Iowa 1999) (elements and pleading); Brown v. North Cent. F.S., Inc., 987 F.Supp. 1150, 1155-57 (N.D.Iowa 1997) (pleading); Brown v. North Cent., 173 F.R.D. 658, 664-65 (N.D.Iowa 1997) (pleading); North Cent. F.S., Inc. v. Brown, 951 F.Supp. 1383, 1407-08 (N.D.Iowa 1996) (pleading); DeWit v. Firstar Corp., 879 F.Supp. 947, 970 (N.D.Iowa 1995) (elements and pleading). In Wright, this court provided the following brief discussion of these matters, which the court finds is all that is required here: Rule 9(b) of the Federal Rules of Civil Procedure “ ‘requires a plaintiff to allege with particularity the facts constituting the fraud.’ ” See Brown, 987 F.Supp. at 1155 (quoting Independent Business Forms v. A-M Graphics, 127 F.3d 698, 703 n. 2 (8th Cir.1997)). “ ‘When pleading fraud, a plaintiff cannot simply make conclusory allegations.’ ” Id. (quoting Roberts v. Francis, 128 F.3d 647, 651 (8th Cir.1997)). In Commercial Property Inv., Inc. v. Quality Inns Int’l," }, { "docid": "17450542", "title": "", "text": "plead fraud as a means of establishing why Aegis Food’s state marks should be canceled. Aegis Food asserts that because Aegis Sciences did not -meet the heightened pleading requirements when alleging fraud that Aegis Sciences has failed to state a claim upon which relief can be granted. The court agrees. 'When dealing with instances of fraud or mistake, Federal Rule of Civil Procedure 9(b) requires that the party state with particularity “the circumstances constituting fraud or mistakef.]” Comm. Prop. Inv., Inc. v. Quality Inns Int’l, Inc., 61 F.3d 639, 644 (8th Cir.1995) (internal quotations omitted). “ ‘Circumstances include such matters as the time, place and content of false representations, as well as the identity of the person making the misrepresentation and what was obtained or given up thereby.’ ” Id. (internal, quotations and citations omitted). While the Eighth Circuit Court of Appeals has not applied these heightened requirements when pleading fraudulent procurement of a trademark, other courts have done so. Iowa Health Sys. v. Trinity Health Corp., 177 F.Supp.2d 897, 914-15 (N.D.Iowa 2001) (citing San Juan Prods., Inc. v. San Juan Pools of Kan., Inc., 849 F.2d 468, 472 (10th Cir.1988); Gaffrig Performance Indus., Inc. v. Livorsi Marine, Inc., Civ. No. 99-7778, 2001 WL 709483, at *4 (N.D.Ill. June 25, 2001); GMA Accessories, Inc. v. Idea Nuova, Inc., 157 F.Supp.2d 234, 242 (S.D.N.Y.2000)). Aegis Sciences did not include in its pleadings such information “as the time, place and content of false representations, as well as the identity of the person making the misrepresentation and what was obtained or. given up thereby.” Comm. Prop., 61 F.3d at 644, 61 F.3d 639. For this reason, Aegis Sciences has not pleaded its claim of fraud-with-sufficient particularity under the Federal Rules of Civil Procedure. Count four of the counterclaim, as it pertains to fraudulent procurement of a state mark, is dismissed to the extent that Aegis Sciences must amend its pleading of fraud, if possible, to satisfy Rule 12(b)(6) and Rule 9(b). See Iowa Health Sys., 177 F.Supp.2d at 915 (granting defendants’ motion to dismiss “to the extent that the plaintiffs must amend their" }, { "docid": "6841970", "title": "", "text": "RICO complaint. See, e.g., Murr Plumbing, Inc. v. Scherer Bros. Fin., 48 F.3d 1066, 1069 (8th Cir.1995) (applying Rule 9(b) to allegations of mail and wire fraud as predicate acts for RICO' claims); Gunderson v. ADM Investor Servs., Inc., 85 F.Supp.2d 892, 914 (N.D.Iowa 2000) (noting that Rule 9(b) requirements of heightened pleading apply to civil RICO claims alleging fraud-based predicate acts). This court has articulated the standards for pleading fraud with the particularity required by Rule 9(b) in several decisions. See Iowa Health Sys. v. Trinity Health Corp., 177 F.Supp.2d 897, 916 (N.D.Iowa 2001); Wright v. Brooke Group, Ltd., 114 F.Supp.2d 797, 832-33 (N.D.Iowa 2000); Gunderson, 85 F.Supp.2d at 903; Doe v. Hartz, 52 F.Supp.2d 1027, 1055 (N.D.Iowa 1999); North Central F.S., Inc. v. Brown, 951 F.Supp. 1383 (N.D.Iowa 1996). In Wright, this court provided the following brief discussion of the Rule 9(b) requirements: Rule 9(b) of the Federal Rules of Civil Procedure “ ‘requires a plaintiff to allege with particularity the facts constituting the fraud.’ ” See Brown, 987 F.Supp. at 1155 (quoting Independent Business Forms v. A-M Graphics, 127 F.3d 698, 703 n. 2 (8th Cir.1997)). “ ‘When pleading fraud, a plaintiff cannot simply make conclusory allegations.’ ” Id. (quoting Roberts v. Francis, 128 F.3d 647, 651 (8th Cir.1997)). In Commercial Property Inv., Inc. v. Quality Inns Int’l, Inc., 61 F.3d 639, (8th Cir.1995), the Eighth Circuit Court of Appeals explained: Rule 9(b) requires that “[i]n all aver-ments of fraud or mistake, the circumstance constituting fraud or mistake shall be stated with particularity.” “ ‘Circumstances’ include such matters as the time, place and content of false representations, as well as the identity of the person making the misrepresentation and what was obtained or given up thereby.” Bennett v. Berg, 685 F.2d 1053, 1062 (8th Cir.1982), adhered to on reh’g, 710 F.2d 1361 (8th Cir.), cert, denied, 464 U.S. 1008, 104 S.Ct. 527, 78 L.Ed.2d 710 (1983). Because one of the main purposes of the rule is to facilitate a defendant’s ability to respond and to prepare a defense to charges of fraud, Greenwood v. Dittmer, 776 F.2d" }, { "docid": "6842053", "title": "", "text": "and that Schuster should not be given another opportunity to plead fraud with particularity. 3. Fraudulent misrepresentation and fraudulent nondisclosure under Iowa law As this court has explained on a number of occasions, “[t]he required elements of fraudulent misrepresentation under Iowa law are: (1) a material (2) false (3) representation coupled with (4) scienter and (5) intent to deceive, which the other party (6) relies upon with (7) resulting damages to the relying party.” Schaller Telephone Co. v. Golden Sky Systems, Inc., 139 F.Suppüd 1071, 1104 (N.D.Iowa 2001)(quoting Wright v. Brooke Group Ltd., 114 F.Supp.2d 797, 819 (N.D.Iowa 2000), in turn citing Doe v. Hartz, 52 F.Supp.2d 1027, 1055 (N.D.Iowa 1999)) (internal quotations and citations omitted); Webster Indus., Inc. v. Northwood Doors, Inc., 320 F.Supp.2d 821, 844 (N.D.Iowa 2004)(same); Williams v. Security Nat’l Bank of Sioux City, Iowa, 293 F.Supp.2d 958, 971 (N.D.Iowa 2003)(same); Gunder-son v. ADM Investor Servs., Inc., 85 F.Supp.2d 892, 922 (N.D.Iowa 2000)(same); Tralon Corp. v. Cedarapids, Inc., 966 F.Supp. 812 (N.D.Iowa 1997)(same); Jones Distrib. Co. v. White Consol. Indus., Inc., 943 F.Supp. 1445, 1473 (N.D.Iowa 1996)(same); accord Smidt v. Porter, 695 N.W.2d 9, 22 (Iowa 2005)(“The elements of fraudulent misrepresentation are (1) representation; (2) falsity; (3) materiality; (4) scienter; (5) intent; (6) justifiable reliance; and (7) resulting injury.”); Lloyd v. Drake Univ., 686 N.W.2d 225, 233 (Iowa 2004)(citing elements); Gibson v. ITT Hartford Ins. Co., 621 N.W.2d 388, 400 (Iowa 2001)(“To establish a claim of fraudulent misrepresentation, a plaintiff must prove (1) defendant made a representation to the plaintiff, (2) the representation was false, (3) the representation was material, (4) the defendant knew the representation was false, (5) the defendant intended to deceive the plaintiff, (6) the plaintiff acted in reliance on the truth of the representation and was justified in relying on the representation, (7) the representation was a proximate cause of plaintiffs damages, and (8) the amount of damages.”) “The representation or promise, however, need not be an affirmative misstatement, as fraud may also arise from a failure to disclose material facts.” Id. (citing Sin-nard v. Roach, 414 N.W.2d 100, 105 (Iowa 1987) (citation" }, { "docid": "452694", "title": "", "text": "‘requirement ... imposed under State law’ within the meaning of [Federal Cigarette Labeling and Advertising Act] § 5(b).”). G. Fraud Claims Defendants correctly point out that Mr. Wright’s fraud claim is subject to the heightened pleading requirements of Rule 9(b). This court has articulated the elements of fraud under Iowa law and the standards for pleading fraud with the particularity required by Rule 9(b) of the Federal Rules of Civil Procedure in several recent decisions. See Doe v. Hartz, 52 F.Supp.2d 1027, 1055 (N.D.Iowa 1999) (elements and pleading); Brown v. North Cent. F.S., Inc., 987 F.Supp. 1150, 1155-57 (N.D.Iowa 1997) (pleading); Brown v. North Cent. F.S., Inc., 178 F.R.D. 658, 664-65 (N.D.Iowa 1997) (pleading); Tralon Corp. v. Cedarapids, Inc., 966 F.Supp. 812 (elements); North Cent. F.S., Inc. v. Brown, 951 F.Supp. 1388, 1407-08 (N.D.Iowa 1996) (pleading); Jones Distrib. Co. v. White Consol. Indus., Inc., 943 F.Supp. 1445, 1469 (N.D.Iowa 1996) (elements of fraud and fraudulent non-disclosure); DeWit v. Firstar Corp., 879 F.Supp. 947, 970 (N.D.Iowa 1995) (elements and pleading). Thus, only a brief discussion of these matters is required here. Rule 9(b) of the Federal Rules of Civil Procedure “ ‘requires a plaintiff to allege with particularity the facts constituting the fraud.’ ” See Brown, 987 F.Supp. at 1155 (quoting Independent Business Forms v. A-M Graphics, 127 F.3d 698, 703 n. 2 (8th Cir.1997)). “ When pleading fraud, a plaintiff cannot simply make conclusory allegations.’ ” Id. (quoting Roberts v. Francis, 128 F.3d 647, 651 (8th Cir.1997)). In Commercial Property Inv., Inc. v. Quality Inns Int’l, Inc., 61 F.3d 639 (8th Cir.1995), the Eighth Circuit Court of Appeals explained: Rule 9(b) requires that “[i]n all aver-ments of fraud or mistake, the circumstances constituting fraud or mistake shall be stated with particularity.” “ ‘Circumstances’ include such matters as the time, place and content of false representations, as well as the identity of the person making the misrepresentation and what was obtained or given up thereby.” Bennett v. Berg, 685 F.2d 1053, 1062 (8th Cir.1982), adhered to on reh’g, 710 F.2d 1361 (8th Cir.), cert. denied, 464 U.S. 1008, 104 S.Ct. 527," }, { "docid": "8762895", "title": "", "text": "that claim pursuant to Rule 12(f), should the court find that the Count does state a claim upon which relief can be granted. . Cargill's contentions are cast entirely in terms of failure to satisfy Rule 12(b)(6), not in terms of failure to satisfy Rule 9(b) of the Federal Rules of Civil Procedure, which requires a party to plead fraud with particularity. See Fed.R.Civ.P. 9(b); see generally Iowa Health Sys. v. Trinity Health Corp., 177 F.Supp.2d 897, 914 (N.D.Iowa 2001). . In reaching this conclusion, the court has not considered the affidavit of Mr. Kramer attached to Sioux Biochemical’s brief or the allegations in the brief regarding the cause of the delay in Sioux Biochemical’s exercise of its right to “confirm” that Cargill was no longer using Sioux Biochemical’s CS Process, because the affidavit and the allegations fall outside of the pleadings in this case. See Fed.R.Civ.P. 12(b)(6) (the court cannot consider matters outside of the pleadings without converting a Rule 12(b)(6) motion to dismiss into a motion for summary judgment); see also Buck, 75 F.3d at 1288 & n. 3 (same). . Because the parties did. not raise the question, the court has not considered whether Sioux Biochemical has pleaded fraudulent misrepresentation with the particularity required by Rule 9(b) of the Federal Rules of Civil Procedure, including particular allegation of “what was given up or obtained by the fraud.” See, e.g., Iowa Health Sys. v. Trinity Health Corp., 177 F.Supp.2d 897, 914 (N.D.Iowa 2001). However, the court doubts that Sioux Biochemical’s pleading of fraud based on a misrepresentation of inventorship, even where Sioux Biochemical alleged that the misrepresentation was made directly to Sioux Biochemical, satisfies the requirements of Rule 9(b)." }, { "docid": "6841969", "title": "", "text": "resistance to the extent that it only identifies locations where fraudulent misrepresentations were made — stating that as there are no allegations as to what was said at those meetings and that this fails to meet the plaintiffs’ Rule 9(b) burden. The defendants rebuke the plaintiffs’ contention that further discovery would be necessary to determine which investments were solicited at which locations — arguing that if the plaintiffs “actually invested in reliance on misrepresentations that were made to them, they should be able to allege the required Rule 9(b) requirements regarding those misrepresentations without discovery.” ASB’s reply at 3. Finally, ASB contends that allowing the plaintiffs a third attempt to plead fraud with the particularity required by Rule 9(b) would be futile as the only facts the plaintiffs contend they do not yet possess (i.e. which investments were solicited at which locations) would not cure the Rule 9(b) deficiencies. b. The law Courts have held that the heightened pleading requirements of Federal Rule of Civil Procedure 9(b) apply to allegations of fraud in a civil RICO complaint. See, e.g., Murr Plumbing, Inc. v. Scherer Bros. Fin., 48 F.3d 1066, 1069 (8th Cir.1995) (applying Rule 9(b) to allegations of mail and wire fraud as predicate acts for RICO' claims); Gunderson v. ADM Investor Servs., Inc., 85 F.Supp.2d 892, 914 (N.D.Iowa 2000) (noting that Rule 9(b) requirements of heightened pleading apply to civil RICO claims alleging fraud-based predicate acts). This court has articulated the standards for pleading fraud with the particularity required by Rule 9(b) in several decisions. See Iowa Health Sys. v. Trinity Health Corp., 177 F.Supp.2d 897, 916 (N.D.Iowa 2001); Wright v. Brooke Group, Ltd., 114 F.Supp.2d 797, 832-33 (N.D.Iowa 2000); Gunderson, 85 F.Supp.2d at 903; Doe v. Hartz, 52 F.Supp.2d 1027, 1055 (N.D.Iowa 1999); North Central F.S., Inc. v. Brown, 951 F.Supp. 1383 (N.D.Iowa 1996). In Wright, this court provided the following brief discussion of the Rule 9(b) requirements: Rule 9(b) of the Federal Rules of Civil Procedure “ ‘requires a plaintiff to allege with particularity the facts constituting the fraud.’ ” See Brown, 987 F.Supp. at 1155 (quoting" }, { "docid": "11466776", "title": "", "text": "Commercial Property, 61 F.3d at 644; see Roberts, 128 F.3d at 651 (noting that factors a court should examine in determining whether the “circumstances” constituting fraud are stated with particularity under Rule 9(b) “include the time, place, and contents of the alleged fraud; the identity of the person allegedly committing fraud; and what was given up or obtained by the alleged fraud.”). However, the Eighth Circuit Court of Appeals has also noted that this rule of pleading is to be interpreted “ ‘in harmony with the principles of notice pleading.’” Schaller Tel. Co. v. Golden Sky Sys., Inc., 298 F.3d 736, 746 (8th Cir.2002) (quoting Abels v. Farmers Commodities Corp., 259 F.3d 910, 920 (8th Cir.2001)). That is, “[a]lthough a pleading alleging fraud need not provide anything more than notice of the claim, it must contain ‘a higher degree of notice, enabling the defendant to respond specifically, at an early stage of the case, to potentially damaging allegations of immoral and criminal conduct.’ ” Id. (quoting Abels, 259 F.3d at 920). 2. Application of the Rule 9(b) pleading standards Defendants IFF, Givauden, FONA, and Sensient specifically assert that plaintiff Remmes has failed to plead his fraud claims with sufficient particularity because plaintiff Remmes does not identify the specific actions of an individual defendant but instead refers to defendants IFF, Givau-den, FONA, and Sensient collectively. Plaintiff Remmes asserts in response that he may refer to defendants collectively since they are all alleged to have participated in the fraud. As this court explained in DeWit v. Firstar Corp., 879 F.Supp. 947 (N.D.Iowa 1995), where a plaintiffs complaint “accuses multiple defendants of participating in the scheme to defraud, the plaintiffs must take care to identify which of them was responsible for the individual acts of fraud.” DeWit, 879 F.Supp. at 972 (quoting Jepson, Inc. v. Makita Corp., 34 F.3d 1321, 1328 (7th Cir.1994)); accord Wright, 114 F.Supp.2d at 834 (quoting DeWit); see Vicom, Inc. v. Harbridge Merchant Servs., Inc., 20 F.3d 771, 778 (7th Cir.1994) (“Therefore, in a case involving multiple defendants, such as the one before us, ‘the complaint should inform each" }, { "docid": "10067324", "title": "", "text": "in several decisions. See Wright v. Brooke Group, Ltd., 114 F.Supp.2d 797, 832-33 (N.D.Iowa 2000); Doe v. Hartz, 52 F.Supp.2d 1027, 1055 (N.D.Iowa 1999) (elements and pleading); Brown v. North Cent. F.S., Inc., 987 F.Supp. 1150, 1155-57 (N.D.Iowa 1997) (pleading); Brown v. North Cent., 173 F.R.D. 658, 664-65 (N.D.Iowa 1997) (pleading); North Cent. F.S., Inc. v. Brown, 951 F.Supp. 1383, 1407-08 (N.D.Iowa 1996) (pleading); DeWit v. Firstar Corp., 879 F.Supp. 947, 970 (N.D.Iowa 1995) (elements and pleading). In Wright, this court provided the following brief discussion of these matters, which the court finds is all that is required here: Rule 9(b) of the Federal Rules of Civil Procedure “ ‘requires a plaintiff to allege with particularity the facts constituting the fraud.’ ” See Brown, 987 F.Supp. at 1155 (quoting Independent Business Forms v. A-M Graphics, 127 F.3d 698, 703 n. 2 (8th Cir.1997)). “ ‘When pleading fraud, a plaintiff cannot simply make conclusory allegations.’ ” Id. (quoting Roberts v. Francis, 128 F.3d 647, 651 (8th Cir.1997)). In Commercial Property Inv., Inc. v. Quality Inns Int’l, Inc., 61 F.3d 639 (8th Cir.1995), the Eighth Circuit Court of Appeals explained: Rule 9(b) requires that “[i]n all aver-ments of fraud or mistake, the circumstances constituting fraud or mistake shall be stated with particularity.” “ ‘Circumstances’ include such matters as the time, place and content of false representations, as well as the identity of the person making the misrepresentation and what was obtained or given up thereby.” Bennett v. Berg, 685 F.2d 1053, 1062 (8th Cir.1982), adhered to on reh’g, 710 F.2d 1361 (8th Cir.), cert. denied, 464 U.S. 1008, 104 S.Ct. 527, 78 L.Ed.2d 710 (1983). Because one of the main purposes of the rule is to facilitate a defendant’s ability to respond and to prepare a defense to charges of fraud, Greenwood v. Dittmer, 776 F.2d 785, 789 (8th Cir.1985), conclusory allegations that a defendant’s conduct was fraudulent and deceptive are not sufficient to satisfy the rule. In re Flight Transp. Corp. Sec. Litig., 593 F.Supp. 612, 620 (D.Minn.1984). Commercial Property, 61 F.3d at 644; see Roberts, 128 F.3d at 651 (noting" }, { "docid": "452693", "title": "", "text": "and all reasonable inferences in the light most favorable to plaintiffs. See St. Croix, 178 F.3d at 519 (“We take the well-pleaded allegations in the complaint as true and view the complaint, and all reasonable inferences arising therefrom, in the light most favorable to the plaintiff.”). Consequently, defendants’ motion to dismiss Mr. Wright’s breach of special assumed duty is denied. Moreover, to the extent that defendants argue that plaintiffs’ post-1969 duty to disclose claim that “defendants voluntarily assumed the duty to report honestly and competently on all research regarding smoking and health regarding their tobacco products through their public announcement,” ¶ 9.2, is preempted, the court does not agree. If it is established that defendants “voluntarily undertook this duty to disclose” such claim would not be preempted as it would fall squarely within one of the exceptions articulated by Cipollone, because the predicate duty is imposed not by the State but by the party assuming the obligation. Id at 524 (“[A] common-law remedy for a contractual commitment voluntarily undertaken should not be regarded as a ‘requirement ... imposed under State law’ within the meaning of [Federal Cigarette Labeling and Advertising Act] § 5(b).”). G. Fraud Claims Defendants correctly point out that Mr. Wright’s fraud claim is subject to the heightened pleading requirements of Rule 9(b). This court has articulated the elements of fraud under Iowa law and the standards for pleading fraud with the particularity required by Rule 9(b) of the Federal Rules of Civil Procedure in several recent decisions. See Doe v. Hartz, 52 F.Supp.2d 1027, 1055 (N.D.Iowa 1999) (elements and pleading); Brown v. North Cent. F.S., Inc., 987 F.Supp. 1150, 1155-57 (N.D.Iowa 1997) (pleading); Brown v. North Cent. F.S., Inc., 178 F.R.D. 658, 664-65 (N.D.Iowa 1997) (pleading); Tralon Corp. v. Cedarapids, Inc., 966 F.Supp. 812 (elements); North Cent. F.S., Inc. v. Brown, 951 F.Supp. 1388, 1407-08 (N.D.Iowa 1996) (pleading); Jones Distrib. Co. v. White Consol. Indus., Inc., 943 F.Supp. 1445, 1469 (N.D.Iowa 1996) (elements of fraud and fraudulent non-disclosure); DeWit v. Firstar Corp., 879 F.Supp. 947, 970 (N.D.Iowa 1995) (elements and pleading). Thus, only a brief discussion of" }, { "docid": "11466773", "title": "", "text": "the face of the complaint that there is some insuperable bar to relief.” Frey, 44 F.3d at 671 (internal quotation marks and ellipses omitted); accord Pames, 122 F.3d at 546 (also considering whether there is an “insuperable bar to relief’ on the claim). With these standards in mind, the court turns to consideration of defendants’ respective motions to dismiss counts II and III. B. Fraud Claims Defendants IFF, Givauden, FONA, and Sensient assert that plaintiff Remmes has failed to plead his fraud claims with sufficient particularity as required by Federal Rule of Civil Procedure 9(b), and, therefore, has failed to state a claim upon which relief can be granted. In contrast, plaintiff Remmes maintains that his fraudulent concealment and civil conspiracy claims here are sufficient under the standards of Rule 9(b). The court, therefore, must determine whether plaintiff Remmes has pleaded his fraud based claims with sufficient particularity in his amended complaint. 1. Pleading fraud under Rule 9(b) This court has articulated the standards for pleading fraud with the particularity required by Rule 9(b) of the Federal Rules of Civil Procedure in a number of prior decisions. See Schuster v. Anderson, 378 F.Supp.2d 1070, 1086 (N.D.Iowa 2005); Iowa Health Sys. v. Trinity Health Corp., 177 F.Supp.2d 897, 914 (N.D.Iowa 2001); Wright v. Brooke Group, Ltd., 114 F.Supp.2d 797, 832-33 (N.D.Iowa 2000); Doe v. Hartz, 52 F.Supp.2d 1027, 1055 (N.D.Iowa 1999); Brown v. North Cent. F.S., Inc., 987 F.Supp. 1150, 1155-57 (N.D.Iowa 1997); Brown v. North Cent. F.S., Inc., 173 F.R.D. 658, 664-65 (N.D.Iowa 1997); North Cent. F.S., Inc. v. Brown, 951 F.Supp. 1383, 1407-08 (N.D.Iowa 1996); DeWit v. Firstar Corp., 879 F.Supp. 947, 970 (N.D.Iowa 1995). Thus, only a brief discussion of these matters is required here. Rule 9(b) of the Federal Rules of Civil Procedure “ ‘requires a plaintiff to allege with particularity the facts constituting the fraud.’ ” Brown, 987 F.Supp. at 1155 (quoting Independent Business Forms v. A-M Graphics, 127 F.3d 698, 703 n. 2 (8th Cir.1997)). “ ‘When pleading fraud, a plaintiff cannot simply make eonclusory al legations.’ ” Id. (quoting Roberts v. Francis, 128 F.3d" }, { "docid": "3057172", "title": "", "text": "it was. Use of the term “insurance” in this context clearly fits within the colloquial sense of “insurance” as “protection from a risk.” See, e.g., MerRIAm-WebsteR’s Collegiate Dictionary (10th ed.1995) (defining “insurance,” inter alia, as “a means of guaranteeing protection or safety”). Thus, all that the allegations reasonably suggest, even read liberally, is that the Packing Companies represented that they would protect the Producers from the risk of loss from hogs that died in transit. Again, the Producers have not alleged that the Packing Companies failed to provide or threatened not to provide the protection from risk of loss of hogs in transit for which the Producers had bargained. Third, to the extent that the Producers allege that they were “deceived,” because the deduction was sometimes identified as “insurance” but was not for something that actually was “insurance,” the Producers have failed to plead fraud with the particularity required by Rule 9(b) of the Federal Rules of Civil Procedure. See Fed. R. Civ. P. 9(b) (“In all averments of fraud or mistake, the circumstances constituting fraud or mistake shall be stated with particularity. Malice, intent, knowledge, and other condition of the mind of a person may be averred generally.”); see also Iowa Health Sys. v. Trinity Health Corp., 177 F.Supp.2d 897, 913-17 (N.D.Iowa 2001) (pleading fraud); Wright v. Brooke Group, Ltd., 114 F.Supp.2d 797, 832-33 (N.D.Iowa 2000) (same); Brown v. North Cent. F.S., Inc., 987 F.Supp. 1150, 1155-57 (N.D.Iowa 1997) (pleading fraud); Brown v. North Cent. F.S., Inc., 173 F.R.D. 658, 669 (N.D.Iowa 1997) (same); North Cent. F.S., Inc. v. Brown, 951 F.Supp. 1383, 1408 (N.D.Iowa 1996) (same, quoting DeWit v. Firstar Corp., 879 F.Supp. 947, 989-90 (N.D.Iowa 1995)). Finally, just because the agreements between the Producers and the Packing Companies fall within the PSA does not mean that the provisions of those agreements are subject to some special scrutiny. See Mahon, 416 U.S. at 107-08, 94 S.Ct. 1626 (“[Tjhere is no indication that, lurking within this intention to control deceptive and monopolistic practices in the packing industry, lies a further intention to guarantee persons who sell cattle to such" }, { "docid": "6842052", "title": "", "text": "turn, plead fraud with the requisite particularity. Schuster claims that it is clear that the Complaint contains the required specificity and sets forth the time, place and content of the false representations, in addition to the identity of the persons making those representations or omissions. As such, Schuster contends that the Anderson defendants’ motion to dismiss Counts VI and VII should be denied. In reply, the Anderson defendants contend that Schuster confuses pleading the underlying wire transfers with particularity with pleading the circumstances constituting fraud with particularity. The Anderson defendants argue that fraudulent misrepresentation requires a showing of both false representation and an intent to deceive, and fraudulent nondisclosure requires a showing of intent and withholding of facts material to the transaction. The specific time, dates and contents of the wire transfers, according to the Anderson defendants, is completely distinct from pleading the required elements of false representation or withholding of material facts with Rule 9(b) particularity. As such, the Anderson defendants assert they are entitled to dismissal of Counts VI and VII with prejudice, and that Schuster should not be given another opportunity to plead fraud with particularity. 3. Fraudulent misrepresentation and fraudulent nondisclosure under Iowa law As this court has explained on a number of occasions, “[t]he required elements of fraudulent misrepresentation under Iowa law are: (1) a material (2) false (3) representation coupled with (4) scienter and (5) intent to deceive, which the other party (6) relies upon with (7) resulting damages to the relying party.” Schaller Telephone Co. v. Golden Sky Systems, Inc., 139 F.Suppüd 1071, 1104 (N.D.Iowa 2001)(quoting Wright v. Brooke Group Ltd., 114 F.Supp.2d 797, 819 (N.D.Iowa 2000), in turn citing Doe v. Hartz, 52 F.Supp.2d 1027, 1055 (N.D.Iowa 1999)) (internal quotations and citations omitted); Webster Indus., Inc. v. Northwood Doors, Inc., 320 F.Supp.2d 821, 844 (N.D.Iowa 2004)(same); Williams v. Security Nat’l Bank of Sioux City, Iowa, 293 F.Supp.2d 958, 971 (N.D.Iowa 2003)(same); Gunder-son v. ADM Investor Servs., Inc., 85 F.Supp.2d 892, 922 (N.D.Iowa 2000)(same); Tralon Corp. v. Cedarapids, Inc., 966 F.Supp. 812 (N.D.Iowa 1997)(same); Jones Distrib. Co. v. White Consol. Indus., Inc., 943" }, { "docid": "11466774", "title": "", "text": "the Federal Rules of Civil Procedure in a number of prior decisions. See Schuster v. Anderson, 378 F.Supp.2d 1070, 1086 (N.D.Iowa 2005); Iowa Health Sys. v. Trinity Health Corp., 177 F.Supp.2d 897, 914 (N.D.Iowa 2001); Wright v. Brooke Group, Ltd., 114 F.Supp.2d 797, 832-33 (N.D.Iowa 2000); Doe v. Hartz, 52 F.Supp.2d 1027, 1055 (N.D.Iowa 1999); Brown v. North Cent. F.S., Inc., 987 F.Supp. 1150, 1155-57 (N.D.Iowa 1997); Brown v. North Cent. F.S., Inc., 173 F.R.D. 658, 664-65 (N.D.Iowa 1997); North Cent. F.S., Inc. v. Brown, 951 F.Supp. 1383, 1407-08 (N.D.Iowa 1996); DeWit v. Firstar Corp., 879 F.Supp. 947, 970 (N.D.Iowa 1995). Thus, only a brief discussion of these matters is required here. Rule 9(b) of the Federal Rules of Civil Procedure “ ‘requires a plaintiff to allege with particularity the facts constituting the fraud.’ ” Brown, 987 F.Supp. at 1155 (quoting Independent Business Forms v. A-M Graphics, 127 F.3d 698, 703 n. 2 (8th Cir.1997)). “ ‘When pleading fraud, a plaintiff cannot simply make eonclusory al legations.’ ” Id. (quoting Roberts v. Francis, 128 F.3d 647, 651 (8th Cir.1997)). In Commercial Property Inv., Inc. v. Quality Inns Int’l, Inc., 61 F.3d 639 (8th Cir.1995), the Eighth Circuit Court of Appeals explained: Rule 9(b) requires that “[i]n all aver-ments of fraud or mistake, the circumstances constituting fraud or mistake shall be stated with particularity.” “ ‘Circumstances’ include such matters as the time, place and content of false representations, as well as the identity of the person making the misrepresentation and what was obtained or given up thereby.” Bennett v. Berg, 685 F.2d 1053, 1062 (8th Cir.1982), adhered to on reh’g, 710 F.2d 1361 (8th Cir.), cert. denied, 464 U.S. 1008, 104 S.Ct. 527, 78 L.Ed.2d 710 (1983). Because one of the main purposes of the rule is to facilitate a defendant’s ability to respond and to prepare a defense to charges of fraud, Greenwood v. Dittmer, 776 F.2d 785, 789 (8th Cir.1985), conclusory allegations that a defendant’s conduct was fraudulent and deceptive are not sufficient to satisfy the rule. In re Flight Transp. Corp. Sec. Litig., 593 F.Supp. 612, 620 (D.Minn.1984)." }, { "docid": "15292400", "title": "", "text": "from a concealment or failure to disclose material facts. She argues that a duty to disclose arose here, because of the defendants’ superior knowledge of defendant Hartz’s background. Because Father Hartz held himself out as a priest and a celibate, Doe argues, knowing he had no intention or no ability to abide by the requirements of such a position, Hartz owed a duty to Doe in particular and to the congregation as a whole to apprise them of his sexual propensities. Doe contends that Hartz’s failure to maké such a revelation amounted to an affirmative misrepresentation, because of the obvious interest of parishioners in a priest’s history of sexual misconduct. a. Elements and pleading This court has articulated the elements of fraud under Iowa law and the standards for pleading fraud with the particularity required by Fed.R,Civ.P.. 9(b) in several recent decisions. See Brown v. North Cent. F.S., Inc., 987 F.Supp. 1150, 1155-57 (N.D.Iowa 1997) (pleading); Brown v. North Cent. F. S., Inc., 173 F.R.D. 658, 664-65 (N.D.Iowa 1997) (pleading); Tralon Corp. v. Cedarapids, Inc., 966 F.Supp. 812 (N.D.Iowa 1997) (elements); North Cent. F.S., Inc. v. Brown, 951 F.Supp. 1383, 1407-08 (N.D.Iowa 1996) (pleading); Jones Distrib. Co. v. White Consol. Indus., Inc., 943 F.Supp. 1445, 1469 (N.D.Iowa 1996) (elements- of fraud and fraudulent, uon-disclosure); De Wit v. Firstar Corp., 879 F.Supp. 947, 970 (N.D.Iowa 1995) (elements and pleading). Thus, only a brief discussion of these matters is required here. Rule 9(b) of the Federal Rules of Civil Procedure “ ‘requires a plaintiff to allege with particularity the facts constituting the fraud.’ ” See Brown, 987 F.Supp. at 1155 (quoting Independent Business Forms v. A-M Graphics, 127 F.3d 698, 703 n. 2 (8th Cir.1997)). “ ‘When pleading fraud, a plaintiff cannot simply make eon-clusory allegations.’ ” Id. (quoting Roberts v. Francis, 128 F.3d 647, 651 (8th Cir.1997)). The required elements of fraudulent misrepresentation under Iowa law are “(1) a material (2) false (3) representation coupled with (4) scienter and (5) intent to deceive, which the other party (6) relies upon with (7) resulting damages to the relying party.” See Tralon, Inc.," }, { "docid": "15292401", "title": "", "text": "966 F.Supp. 812 (N.D.Iowa 1997) (elements); North Cent. F.S., Inc. v. Brown, 951 F.Supp. 1383, 1407-08 (N.D.Iowa 1996) (pleading); Jones Distrib. Co. v. White Consol. Indus., Inc., 943 F.Supp. 1445, 1469 (N.D.Iowa 1996) (elements- of fraud and fraudulent, uon-disclosure); De Wit v. Firstar Corp., 879 F.Supp. 947, 970 (N.D.Iowa 1995) (elements and pleading). Thus, only a brief discussion of these matters is required here. Rule 9(b) of the Federal Rules of Civil Procedure “ ‘requires a plaintiff to allege with particularity the facts constituting the fraud.’ ” See Brown, 987 F.Supp. at 1155 (quoting Independent Business Forms v. A-M Graphics, 127 F.3d 698, 703 n. 2 (8th Cir.1997)). “ ‘When pleading fraud, a plaintiff cannot simply make eon-clusory allegations.’ ” Id. (quoting Roberts v. Francis, 128 F.3d 647, 651 (8th Cir.1997)). The required elements of fraudulent misrepresentation under Iowa law are “(1) a material (2) false (3) representation coupled with (4) scienter and (5) intent to deceive, which the other party (6) relies upon with (7) resulting damages to the relying party.” See Tralon, Inc., 966 F.Supp. at 827 (internal quotations and citations omitted); Jones Distrib. Co., 943 F.Supp. at 1469 (same elements); accord In re Marriage of Cutler, 588 N.W.2d 425, 430 (Iowa 1999) (same elements). Under Iowa law, “ ‘[a] representation need not be an affirmative misstatement; the concealment of or failure to disclose a material fact can [also] constitute fraud.’” Jones Distrib. Co., 943 F.Supp. at 1473 (quoting Clark v. McDaniel, 546 N.W.2d 590, 592 (Iowa 1996)); accord Cutler, 588 N.W.2d at 430; Gouge v. McNamara, 586 N.W.2d 710, 714 (Iowa Ct.App.1998). Thus, fraudulent concealment, upon which Doe specifically relies as the theory of her “fraud” claim, has the following elements: 1. Special circumstances existed which gave rise to a duty of disclosure between- the plaintiff and the defendant. ' (Describe ' the relationship found to give rise to a duty of disclosure.) 2. While , such relationship existed, the defendant [was .aware of the following facts] [intended the - following . course of action] (state the facts or intent alleged to have been withheld). 3. While" } ]

[ { "docid": "1121488", "title": "", "text": "differently from other claims. This argument ignores the only Ninth Circuit authority in this area, In re Dant & Russell, Inc., 853 F.2d 700 (9th Cir.1988). At issue there was whether private claims against the debtor under CERCLA could be accorded administrative expense priority. In holding the priority sought not merited, the Ninth Circuit sounded a strong policy against according preference to particular claims, “Although [the creditor] asserts that public policy considerations entitle its claims for cleanup costs to administrative expense priority, we acknowledge that Congress alone fixes priorities ... (citation omitted.) Courts are not free to formulate their own rules of super or sub-priorities within a specifically enumerated class.” Id. at 709. While not addressed in determining the timing of a claim, the Dant court’s language clearly discourages according preference to particular claims. CONCLUSION Based upon the Board letter dated February 2, 1984, threatened release of the hazardous waste involved here clearly occurred prior to filing of the Jensens’ individual bankruptcy on February 13, 1984. Because we hold claims in bankruptcy arise based upon the debtor’s conduct, we conclude that DHS’s claim arose in this case prepetition, and was therefore discharged in the Jensens’ bankruptcy. The decision of the bankruptcy court is reversed. APPENDIX 2/83 — JLC commenced operations, capitalized in substantial part by Bank of America (“B of A”) loan in the amount of $750,000. 11/83 — JLC defaulted on loan covenants; B of A demanded payment of all outstanding amounts. 12/2/83 — JLC filed voluntary petition under Chapter 11. B of A subsequently took control of JLC and liquidated all assets. 1/25/84 — Albert Wellman, engineer for the Board, inspected the JLC site. 2/2/84 — The Jensens received a letter from Wellman stating a potential hazardous waste problem existed at the site. 2/10/84 — The Jensens’ attorney informed Wellman by letter that JLC had filed a Chapter 11 petition, virtually certain to be converted to Chapter 7, and that JLC had no available funds for site cleanup. 2/13/84 — The Jensens filed a joint voluntary petition in bankruptcy under Chapter 7. The schedule of liabilities filed did" } ]

[ { "docid": "1869014", "title": "", "text": "land.... Findings (4-7-92) at 3. The apparent inconsistency in these findings is resolved through the court’s citation to In re Jensen, 127 B.R. 27 (9th Cir. BAP 1991), aff'd, 995 F.2d 925 (9th Cir.1993). In Jensen, the BAP discussed when claims arise for purposes of dischargeability. The BAP held that the estate’s cost-recovery claim was dischargeable because it arose from the debtor’s prepetition actions even though the state’s right to recover did not arise until postpetition when it cleaned up the site. 127 B.R. at 33. Jensen cites as authoritative In re Chateaugay Corp., 112 B.R. 513 (S.D.N.Y.1990), aff'd, 944 F.2d 997 (2d Cir.1991), for the proposition that a claim arises upon the actual or threatened release of hazardous waste by the debtor. Consequently, if a tort occurs prepetition, with the injury occurring postpetition, such claim is deemed to have arisen prepetition. Jensen, 127 B.R. at 33 (citing Chateaugay, 112 B.R. at 522). In other words, so long as a prepetition triggering event had occurred, the claim was dis-chargeable regardless of when the claim for relief was ripe for adjudication. Chateaugay, 112 B.R. at 522. In the instant case the bankruptcy court identified the acts giving rise to the alleged liability as the petroleum .spills from the underground storage tanks into the soil. The later leaching from the soil to the groundwater required no activity by Mitchell, but was rather “passive.” See Findings (4-7-92) at 5. Consequently, the bankruptcy court found that all environmental damage was deemed to have occurred pre-petition. See id. We agree. The Ninth Circuit has held that “damages caused during the pre-petition period are not entitled to administrative expense priority.” Dant, 853 F.2d at 709. Dant also held that “consequent damage” occurring postpetition should be regarded as having occurred pre-petition. Id.. For all practical purposes, the instant appeal is equivalent to Dant. In Dant, a pre-petition debtor operated a wood treatment plant on land partially owned by the debtor and partially leased from the Burlington Northern Railroad Company. The wood treatment facility operated for over a decade and caused massive toxic waste contamination on both properties," }, { "docid": "22477981", "title": "", "text": "of lingering claims ‘riding through’ the bankruptcy,” In re Baldwin-United Corp., 55 B.R. 885, 898 (Bankr.S.D.Ohio 1985). . The United States relies on the Third Circuit case of Schweitzer v. Consolidated Rail Corp., 758 F.2d 936 (3d Cir.), cert. denied, 474 U.S. 864, 106 S.Ct. 183, 88 L.Ed.2d 152 (1985), for its argument that a bankruptcy claim does not exist until a suit is ripe under the substantive law. The Third Circuit itself later retreated from this position in In re Remington, supra, and other courts have widely criticized the Schweitzer reasoning, see, e.g., In re Jensen, 127 B.R. 27, 30-31 (9th Cir. BAP 1991); In re Edge, 60 B.R. 690, 704 (Bankr.M.D.Tenn.1986). . Estimation, as the United States claims, \"would necessarily embroil the parties and the bankruptcy court in disputes over the wisdom and scope of possible remedies before EPA had fully investigated the concerned sites.” U.S. Motion at 39. However, the presentation of evidence and testimony for purposes of reaching an estimate is not tantamount to the litigation precluded by 42 U.S.C. § 9613(h). Section 113(h) was intended to prevent the delay in cleanup activity that would result from a preliminary determination of liability through litigation. See In re Combustion, 838 F.2d at 37. . The court in Chateaugay uses the term “fairly\" on numerous occasions, see, e.g., Chateau-gay, 944 F.2d at 1005, and specifically in affirmation of the lower court's recognition that \"before a contingent claim can be discharged, it must result from pre-petition conduct fairly giving rise to that contingent claim.” In re Chateaugay Corp., 112 B.R. 513, 521 (S.D.N.Y.1990) (emphasis added). This Court, finding the use of the term \"fairly” both significant and apt, adopts the same language. . As the United States points out, under CERC-LA itself, the release or threat of release serves as a predicate for EPA to exercise its response authority. See 42 U.S.C. §§ 9604, 9606. . Both the United States and the Debtors read Chateaugay so as to discharge all costs relating to pre-petition conduct resulting in a release or threat of release, regardless of whether these costs are" }, { "docid": "13469057", "title": "", "text": "a release or threat of release that could have been “fairly” contemplated by the parties; and those that could not have been “fairly” contemplated by the parties. Id. at 407-08. In re National Gypsum spells out certain indicia of fair contemplation (“knowledge by the parties of a site in which a PRP may be liable, NPL [‘National Priorities List’] listing, notification by EPA of PRP liability, commencement of investigation and cleanup activities, and incurrence of response costs,” id at 408), and emphasizes that it is “not meant to encourage or permit dilatory tactics on the part of EPA or any other relevant government agency.” Id. The Seventh Circuit in In re Chicago, Milwaukee follows a kindred analysis. What Judge Sanders described as “fairly contemplated by the parties,” the Seventh Circuit described as the contemplation of a potential CERCLA claimant. According to the Seventh Circuit, when a bankruptcy debtor can be tied to a known release of a dangerous substance and when a potential CERCLA claimant has conducted tests revealing a contamination problem, a contingent CERCLA claim arises. In re Chateaugay “relationship” approach adopts “so broad a definition of claim so as to encompass costs that could not ‘fairly have been contemplated by the EPA or the debtor pre-petition.” Id. at 407. In rejecting that approach, the court in In re National Gypsum remarked that conduct giving rise to release or threatened release of hazardous substances pre-petition should be the relevant inquiry in determining the existence of a claim in bankruptcy, [but] this Court is not willing to favor the Code’s objective of a “fresh start” over CERCLA’s objective of environmental cleanup to the extent exhibited by Chateaugay_ [TJhere exists no distinction between debtor’s conduct and the release or threatened release resulting from this conduct. Id. (footnotes omitted). Here, the California Water Board and California DHS are agencies of the same state, involved generally in many of the same capacities. An inspector from the California Water Board visited the inactive lumberyard on January 25, 1984, and observed the fungicide dip tank. The Board notified Robert Jensen of the problem by letter" }, { "docid": "8880668", "title": "", "text": "(Bankr.S.D.N.Y.1986) (“Adherence to [this approach] would reinstitute the provability concept of claims, which the drafters of the Code specifically intended to abolish”); Saville, supra, at 345. Finally, by giving the creditor so much control over the accrual of its claim, the right to payment standard might encourage nefarious creditors to delay cleaning up sites-and thereby incurring response costs-until the close of bankruptcy proceedings. See In re Jensen, 127 B.R. at 31; Reynolds Bros., 647 N.E.2d at 1209. By encouraging such stall tactics, the right to payment approach “not only frustrate[s] the bankruptcy court’s interest in having all claims before it and the debtor’s interest in a fresh start, but it [also frustrates] CERCLA’s interest in a speedy cleanup of hazardous sites.” In re Chicago, Milwaukee, St. Paul & Pac. R.R. Co., 974 F.2d 775, 786 (7th Cir.1992). b. Underlying Act Approach At the other end of the spectrum, some courts have maintained that a pre-bankruptcy “claim” subject to the Code’s discharge provisions exists so long as the underlying polluting act occurred prior to the debtor’s bankruptcy. See In re Jensen, 127 B.R. at 32-33; see also Burlington N.R.R. v. Dant & Russell, Inc. (In re Dant & Russell, Inc.), 853 F.2d 700, 709 (9th Cir.1988); Grady v. A.H. Robins Co., 839 F.2d 198, 203 (4th Cir.), cert. dismissed sub nom. Joynes v. A.H. Robins Co., 487 U.S. 1260, 109 S.Ct. 201, 101 L.Ed.2d 972 (1988); Lovett v. Honeywell, Inc. (In re Transportation Sys. Int’l, Inc.), 110 B.R. 888, 894 (D.Minn.1990), aff’d, 930 F.2d 625 (8th Cir.1991); Danzig Claimants v. Grynberg (In re Grynberg), 113 B.R. 709, 712 (Bankr.D.Colo.1990); In re Johns-Manville Corp., 57 B.R. 680, 690 (Bankr.S.D.N.Y.1986) (applying the standard in the asbestos liability context). Thus, under this “underlying act” or “debt- or’s conduct” approach, even if the EPA does not yet know of a potential CERCLA claim against the debtor, the debtor’s liability is discharged so long as the debtor’s conduct relating to the contamination concluded prior to its bankruptcy petition. Rather than looking to substantive non-bankruptcy law to determine when a CERCLA claim arises, these courts emphasize substantive" }, { "docid": "13469052", "title": "", "text": "tests concerning possible contamination at a railyard formerly owned by the debtor in bankruptcy. Shortly before the consummation date, the test results were obtained, indicating that contamination had taken place. The state did not file a proof of claim before the relevant bar date. The court held: when a potential CERCLA claimant can tie the bankruptcy debtor to a known release of a hazardous substance which this potential claimant knows will lead to CERCLA response costs, and when this potential claimant has, in fact, conducted tests with regard to this contamination problem, then this potential claimant has, at least, a contingent CERCLA claim for purposes of Section 77. Id. at 786. A different approach — the one utilized by the BAP in reversing the bankruptcy court’s decision in this case — counsels that the bankruptcy claim arises at the time of the debt- or’s conduct relating to the contamination. In re Jensen, 127 B.R. at 32-33. In other words, response costs expended by a California DHS or EPA are dischargeable where they result from pre-petition releases or threatened releases of hazardous substances. In re Chateaugay Corp., 944 F.2d 997, 1005 (2d Cir.1991); In re Jensen, 127 B.R. at 33 (“a claim arises for purposes of discharge upon the actual or threatened release of hazardous waste by the debtor”). Another method for addressing the environmental/bankruptcy issue might be called the “relationship” test. See In re Edge, 60 B.R. 690 (Bankr.M.D.Tenn.1986). This approach establishes the date of a bankruptcy claim “at the earliest point in the relationship between the debtor and the creditor.” In re Jensen, 127 B.R. at 31. For example, although a debtor dentist’s pre-petition negligence may escape detection until postpetition, a bankruptcy claim arises at the point of the dentist’s negligent act. Id. at 31-32 (discussing In re Edge). A post-petition suit against the debtor dentist was prohibited by 11 U.S.C. § 362’s automatic stay. In re Edge, 60 B.R. at 705. Not all of these analyses give adequate consideration to the policy goals of the environmental laws and the bankruptcy code. To hold that a claim for contribution" }, { "docid": "14776623", "title": "", "text": "in 1978 U.S.Code Cong. & Admin. News 5787, 5963, 6266. See In re Chateaugay Corp., 944 F.2d at 1003. The Chateaugay Court was faced with the issue of whether unincurred CERCLA response costs for pre-petition releases are “claims.” The Court found that these costs are indeed claims, dischargeable in bankruptcy, regardless of when such costs were incurred, as long as such costs concerned pre-petition release or threatened release of hazardous waste. The District Court recognized that “before a contingent claim can be discharged, it must result from pre-petition conduct fairly giving rise to that contingent claim.” Chateaugay, 112 B.R. at 521. The Court of Appeals noted that the District Court “carefully limited its ruling to pre-petition releases or threatened releases of hazardous substances.” Chateaugay, 944 F.2d at 1005. Other decisions involving environmental claims support the conclusion reached by the Second Circuit in Chateaugay. CMC Heartland Partners ¶. Union Pacific Railroad (In re Chicago, Milwaukee, St. Paul & Pacific Railroad Co.), 3 F.3d 200, 207 (7th Cir.1993) (environmental claims discharged even though “Union Pacific may not have had actual knowledge of hazardous waste containers at the railyard”); In re Jensen, 995 F.2d 925, 929 (9th Cir.1993) (“the bankruptcy claim arises at the time of the debtor’s conduct relating to the contamination”), affirming In re Jensen, 127 B.R. 27, 33 (Bankr. 9th Cir.1991) (“a claim arises for purposes of discharge upon the actual or threatened release of hazardous waste by the debtor”); In re Chicago, Milwaukee, St. Paul & Pacific Railroad Co., 974 F.2d 775, 786 (7th Cir.1992); NCL Corp. v. Lone Star Bldg. Centers (Eastern) Inc., 144 B.R. 170, 180 (S.D.Fla.1992) (dismissing hazardous substance counterclaims based upon pre-petition releases or threatened releases following the reasoning in Chateaugay, supra, that “the Code contemplates discharge of unma-tured or contingent claims which are not asserted”). See also In re National Gypsum Co., 139 B.R. 397, 408 (N.D.Tex.1992) (employing the “fair contemplation” standard; relevant factors include “knowledge by the parties of a site in which a PRP may be liable”). Cf. United States v. Union Scrap & Metal, 123 B.R. 831 (D.Minn.1990); In re M." }, { "docid": "6568136", "title": "", "text": "class representatives. Had this not been the case, it is doubtful that plaintiffs’ claims could properly be deemed to have been discharged in bankruptcy. The Ninth Circuit bankruptcy appellate panel has also recently applied the debt- or’s conduct test, holding that a lender bank’s claim for negligent construction was a contingent claim falling within the scope of section 101(5) since the defective construction occurred pre-petition, even though the bank did not discover the defect until after the debtor’s bankruptcy proceedings had been, completed. In re Hassanally, 208 B.R. 46, 51 (9th Cir. BAP 1997). In so holding, however, the court again lent support to the notion that the concept of “fair contemplation” is always implicit in the question whether a cause of action may be discharged as a pre-petition claim: It would not be inequitable to apply the conduct test to these facts.... Lenders should fairly contemplate the possibility of negligent construction. They have the opportunity to protect against that risk through their inspections ... and ought to have constructive notice that there might be defects. Id. at 54 n. 11 (emphasis added). Finally, the Ninth Circuit in Jensen adopted the “fair contemplation” test, at least in the context of claims brought pursuant to CERCLA or similar state statutes. In Jensen, the State of California brought a claim against the bankrupt debtor for hazardous waste cleanup costs pursuant to a state statute similar to CERCLA. Although the state incurred the costs of the cleanup after the debtor’s bankruptcy proceedings, the conduct that caused the harm occurred pre-petition. Id. at 926-27. The Bankruptcy Appellate Panel (“BAP”) ruled that the state’s claim against the debtor arose pre-petition and had therefore been discharged in bankruptcy, on the grounds that “claims in bankruptcy arise based upon the debtor’s conduct.” Id. at 927. The Ninth Circuit rejected the BAP’s application of the debtor’s conduct test, ruling instead that, at least in the CERCLLA context, a claim may only be deemed to have arisen pre-petition if it is “based upon pre-petition conduct that can fairly be contemplated by the parties at the time of the debtors’" }, { "docid": "8880678", "title": "", "text": "This “fair contemplation” or “foreseeability” standard posits that a contingent CERCLA claim arises pre-petition only if it is “based upon pre-petition conduct that can fairly be contemplated by the parties at the time of the debtors’ bankruptcy.” Jensen, 995 F.2d at 930 (quoting In re Nat’l Gypsum Co., 139 B.R. 397, 404 (N.D.Tex.1992)). Thus, a claim accrues when the potential CERCLA claimant, at the time of bankruptcy, “could have ascertained through the exercise of reasonable diligence that it had a claim” against the debtor for a hazardous release. In re Crystal Oil Co., 158 F.3d 291, 296 (5th Cir.1998); see also AM Int’l, Inc. v. Datacard Corp., DBS, Inc., 106 F.3d 1342, 1347-48 (7th Cir.1997); In re Chicago, 974 F.2d at 786 (holding, for discharge purposes, that a CERCLA claim arises when the claimant can “tie the bankruptcy debtor to a known release of a hazardous substance which this potential claimant knows will lead to CERCLA response costs.”); NCL Corp. v. Lone Star Bldg. Ctrs., Inc., 144 B.R. 170 (S.D.Fla.1992); Sylvester Bros. Dev. Co. v. Burlington Northern R.R., 133 B.R. 648, 653 (D.Minn.1991) (in which the Union Scrap judge applied a fair contemplation standard instead of its prior right to payment approach); Reynolds Bros., 647 N.E.2d at 1208; Saville, supra, at 354 (proposing that courts should discharge CERCLA liability only when such liability was foreseeable at the conclusion of the debtor’s bankruptcy proceedings). This standard allows a claim to accrue earlier than the right to payment standard because the potential claimant need not incur response costs (the fourth CERCLA element) for a contingent claim to arise under this standard. At the same time, the standard requires more awareness of a potential CERCLA claim by a potential creditor than do the underlying act or debtor-creditor relationship standards, both of which allow claims to accrue even if the potential creditor had no idea that it might have a CERCLA claim against the debtor. In so doing, this standard attempts to reconcile the goals of both the bankruptcy courts and CERCLA. See In re Chicago, 974 F.2d at 787 (“In fact, any other" }, { "docid": "18514874", "title": "", "text": "“unliquidated” and “unmatured,” from the explicit definition of “claim” contained in 11 U.S.C. § 101(5). In attempting to distinguish the “unique nature” of environmental claims, CSI argues that what causes environmental contamination to ripen into an environmental claim “is not the release of the contamination, but rather the determination by a responsible agency that the contamination is not appropriate for the particular site on which it was deposited.” CSI Reply Memorandum. That argument, however, ignores the explicit provisions of CERCLA. That statute, which is the essential predicate of the CSI claim, states that: Any person who at the time of disposal of any hazardous substance owned or operated any facility at which such hazardous substances were disposed of ... shall be liable.... 42 U.S.C. § 9607(a)(2) (emphasis added). By these statutory provisions, Kaiser became liable “at the time of disposal” of any hazardous substance. Kaiser then owed a “debt” for the “claim” for the cleanup of such disposal even though that “claim” may then have been contingent, unliquidat-ed and disputed. Claims which arise by reason of prepetition conduct are dis-chargeable in bankruptcy. In the Matter of CMC Heartland Partners, 966 F.2d 1143 (7th Cir.1992); In re Grynberg, 113 B.R. 709 (Bankr.Colo.1990); Utah Division of Oil, Gas and Mining v. Kaiser Steel Corp. (In re Kaiser Steel Corp.), 87 B.R. 662 (Bankr.D.Colo.1988). This Court’s view of the scope of the discharge in cases such as this is supported by the decisions in In re Jensen, 127 B.R. 27 (9th Cir. BAP 1991) and In re Chateaugay Corp., 944 F.2d 997 (2nd Cir.1991). In both cases those courts determined that a claim for unincurred environmental response costs arises at the time of the release of the hazardous substance. This Court previously dealt with this issue, at least peripherally, in the case of Utah Division v. Kaiser, supra. In that case, the State of Utah was seeking relief from 11 U.S.C. § 362(a) in order to force the debtor-in-possession to comply with certain bonding obligations to assure performance of outstanding remediation claims. In that opinion, this Court, in dicta, expressed its view that" }, { "docid": "13469051", "title": "", "text": "N.R.R., 133 B.R. 648, 653 (D.Minn.1991). In a case following its decision in Frenville, the Third Circuit considered whether a contingent claim for contribution under CERCLA could arise before CERCLA was enacted. The court held, “[I]t was not until the passage of CERCLA that a legal relationship was created between the [parties] relevant to the petitioners’ potential causes of action such that an interest could flow.” In re Penn Cent. Transp. Co., 944 F.2d 164, 168 (3d Cir.1991), cert. denied, — U.S.-, 112 S.Ct. 1262, 117 L.Ed.2d 491 (1992). The court did not cite Frenville but instead relied on Schweitzer v. Consolidated Rail Carp., 758 F.2d 936, 942 (3d Cir.) (claims of plaintiffs asserting tort causes of action under Federal Employers’ Liability Act did not arise until plaintiffs suffered identifiable, compensable injuries), cert. denied, 474 U.S. 864, 106 S.Ct. 183, 88 L.Ed.2d 152 (1985). The Seventh Circuit has also considered this issue. In In re Chicago, Milwaukee, St. Paul & Pacific Railroad Co., 974 F.2d 775, the state of Washington took soil samples and conducted tests concerning possible contamination at a railyard formerly owned by the debtor in bankruptcy. Shortly before the consummation date, the test results were obtained, indicating that contamination had taken place. The state did not file a proof of claim before the relevant bar date. The court held: when a potential CERCLA claimant can tie the bankruptcy debtor to a known release of a hazardous substance which this potential claimant knows will lead to CERCLA response costs, and when this potential claimant has, in fact, conducted tests with regard to this contamination problem, then this potential claimant has, at least, a contingent CERCLA claim for purposes of Section 77. Id. at 786. A different approach — the one utilized by the BAP in reversing the bankruptcy court’s decision in this case — counsels that the bankruptcy claim arises at the time of the debt- or’s conduct relating to the contamination. In re Jensen, 127 B.R. at 32-33. In other words, response costs expended by a California DHS or EPA are dischargeable where they result from pre-petition" }, { "docid": "4788626", "title": "", "text": "In re Jensen, 114 B.R. 700 (Bkrtcy.E.D.Cal.1990). In Jensen, the California Department of Health Services (DHS) sued the debtor to recover response costs expended pursuant to the state super-fund statute. The Jensen court found the state superfund law and CERCLA to be equivalent, and granted summary judgment for the state, holding no claim arises for purposes of determining discharge until response costs are incurred. Id. at 706. The court rejected the debtor’s argument that a dischargeable claim arose merely because there was a prepetition release of a hazardous substance: Section 101(4) of the [Bankruptcy] Code defines “claim” as a “right of payment”. This court does not understand how a CERCLA claim arises when the EPA has not yet earned the right to payment by incurring costs in cleaning up the toxic waste. The mere act of spilling toxic waste may give rise to other types of damage claims, i.e. personal injury or property damage, not to mention possible criminal penalties, but it does not cause a CERCLA claim to arise. Id. The court found that this approach fit the goals of CERCLA and the bankruptcy code, since toxic release alone made any CERCLA liability of the debtor too remote and speculative. Theoretically, what if the toxic waste at this site was never discovered? Or upon discovery, what if DHS had decided for whatever reasons not to pursue any remedial actions? Under either scenario no claim would have arisen because the DHS did not spend any of the state’s superfund to clean up the site. Thus, the DHS’s claim, pursuant to [the state statute] arose only after it incurred recoverable cleanup costs. Id. at 703. The court reasoned that it would be too burdensome to require the EPA to file a proof of claim in every bankruptcy proceeding in which the debtor was a conceivable potentially responsible party, and that this would undermine the statutory goals of CERCLA. It noted that the Supreme Court, in Midlantic Nat’l Bank v. New Jersey Dept. of Envtl. Protection, 474 U.S. 494, 106 S.Ct. 755, 88 L.Ed.2d 859 (1986), had judged environmental needs outweighed bankruptcy" }, { "docid": "6568137", "title": "", "text": "defects. Id. at 54 n. 11 (emphasis added). Finally, the Ninth Circuit in Jensen adopted the “fair contemplation” test, at least in the context of claims brought pursuant to CERCLA or similar state statutes. In Jensen, the State of California brought a claim against the bankrupt debtor for hazardous waste cleanup costs pursuant to a state statute similar to CERCLA. Although the state incurred the costs of the cleanup after the debtor’s bankruptcy proceedings, the conduct that caused the harm occurred pre-petition. Id. at 926-27. The Bankruptcy Appellate Panel (“BAP”) ruled that the state’s claim against the debtor arose pre-petition and had therefore been discharged in bankruptcy, on the grounds that “claims in bankruptcy arise based upon the debtor’s conduct.” Id. at 927. The Ninth Circuit rejected the BAP’s application of the debtor’s conduct test, ruling instead that, at least in the CERCLLA context, a claim may only be deemed to have arisen pre-petition if it is “based upon pre-petition conduct that can fairly be contemplated by the parties at the time of the debtors’ bankruptcy.” Id. at 930 (quoting In re Nat’l Gypsum Co., 139 B.R. 397, 404 (N.D.Tex.1992)). The Court suggested that the application of this test, which is less protective of the debtor, on its face, than the test applied by the BAP, was dictated by the unique intersection of environmental cleanup law and federal bankruptcy statutes. On the one hand, the Court pointed out, the Bankruptcy Reform Act of 1978 was designed to provide debtors with a “fresh start” by discharging as many claims against them as possible. Id. at 928. On the other hand, CERCLA embodies a strict Congressional mandate “to protect public health and the environment by facilitating the cleanup of environmental contamination and imposing costs on the parties responsible for the pollution.” Id. at 927 (citations omitted). In light of the competing public policy concerns expressed by Congress, the Court stated, it would be inappropriate to bar a CERCLA claimant from recovery if the claimant could not reasonably contemplate, prior to the bankruptcy proceedings, that it might have a cause of action against" }, { "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": "8017439", "title": "", "text": "Inc., 185 F.3d 978, 985 (9th Cir.1999); Casini v. Graustein (In re Casini), 307 B.R. 800, 811 (Bankr.D.N.J.2004); In re Am. Telecom Corp., 304 B.R. 867, 871 (Bankr.N.D.Ill.2004). Therefore, to determine whether the Schwartz claims have been discharged in Old Conseco’s bankruptcy, the court must examine each of the underlying causes of action asserted by the Schwartz plaintiffs against the insurance subsidiaries. B. Varying Standards for Contingent Claims Based on Post-Discharge Events The Schwartz plaintiffs’ claims are based primarily on the increase in the cost of insurance charge that took effect after confirmation of Conseco’s plan. Determining whether the discharge applies to claims based on conduct that occurs or knowledge that is gained after discharge is often difficult. Courts wrestling with these issues have taken different approaches depending on the type of claim involved and the particular facts of each case. With respect to ordinary torts in which the victim has no previous contact with the tortfeasor, courts have generally concluded that no claim exists for purposes of the Bankruptcy Code until the injury occurs. 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" }, { "docid": "18788976", "title": "", "text": "JON 0. NEWMAN, Circuit Judge: This appeal presents important issues at the intersection-of bankruptcy law and environmental law. The issues arise on an appeal and a cross-appeal from the March 26,1990, judgment of the District Court for the Southern District of New York (John E. Sprizzo, Judge) in connection with the Chapter 11 reorganization of the LTV Corporation and its related companies (collectively “LTV”). The United States, New York, and the Committee of Equity Security Holders of the LTV Corporation (“Equity Holders”) appeal from the judgment to the extent that it holds that “response costs” incurred by the United States Environmental Protection Agency (“EPA”) under the Comprehensive Environmental Response, Compensation and Liability Act (“CERCLA”), 42 U.S.C. § 9601 et seq. (1988), are pre-petition “claims,” discharge-able in bankruptcy, regardless of when such costs are incurred, as long as they concern a release or threatened release of hazardous substances that occurred before the debtor filed its Chapter 11 petition. In re Chateaugay Corp., 112 B.R. 513 (S.D.N.Y.1990). LTV Corporation, LTV Steel Company, Inc., and the Committee of Unsecured Creditors of LTV Steel Company, Inc. (“Unsecured Creditors”) cross-appeal from the judgment to the extent that it holds that the debtor’s obligation to to operate and maintain facilities it owns or operates as required by environmental laws, regardless of when the offending condition arose, is not dischargeable and that CERCLA response costs incurred during the bankruptcy at sites owned or operated by the debtor constitute expenses of administration entitled to priority. Id. We affirm. Background LTV is a diversified steel, aerospace, and energy corporation with operations in several states. LTV filed a bankruptcy petition under Chapter 11 on July 16, 1986. The debtor’s schedule of liabilities included 24 pages of claims, labeled “contingent,” that were held by EPA and the environmental enforcement officers of all fifty states and the District of Columbia. The schedule provided no details concerning these claims. EPA filed a proof of claim for approximately $32 million, representing response costs incurred pre-petition at 14 sites where LTV had been identified as a “potentially responsible party” (“PRP”) under CERCLA. See 42 U.S.C." }, { "docid": "18788998", "title": "", "text": "that existing between future tort claimants totally unaware of injury and a tort-feasor. EPA is acutely aware of LTV and vice versa. The relationship between environmental regulating agencies and those subject to regulation provides sufficient “contemplation” of contingencies to bring most ultimately maturing payment obligations based on pre-petition conduct within the definition of “claims.” True, EPA does not yet know the full extent of the hazardous waste removal costs that it may one day incur and seek to impose upon LTV, and it does not yet even know the location of all the sites at which such wastes may yet be found. But the location of these sites, the determination of their coverage by CERCLA, and the incurring of response costs by EPA are all steps that may fairly be viewed, in the regulatory context, as rendering EPA’s claim “contingent,” rather than as placing it outside the Code’s definition of “claim.” Judge Sprizzo recognized that “before a contingent claim can be discharged, it must result from pre-petition conduct fairly giving rise to that contingent claim.” 112 B.R. at 521. Though relying on pre-petition conduct, the District Court did not go so far as to include CERCLA response costs attributable to any action of the debt- or that occurred pre-petition, such as the construction of a storage facility. Instead, the Court carefully limited its ruling to pre-petition releases or threatened releases of hazardous substances. We think the District Court properly applied the Bankruptcy Code’s definition of “claim.” Though one bankruptcy court has reached a contrary conclusion, In re Jensen, 114 B.R. 700 (Bankr.E.D.Cal.1990), we note that this decision has recently been reversed on appeal, the bankruptcy appellate panel explicitly agreeing with Judge Sprizzo’s decision in the pending case. In re Jensen, 127 B.R. 27, 33 (9th Cir.BAP 1991). Moreover, we are not unmindful of the observations of Justice O’Connor concerning the disadvantage to environmental claimants if “claim” is interpreted to exclude items like unincurred CERCLA response costs. See Ohio v. Kovacs, 469 U.S. 274, 285-86, 105 S.Ct. 705, 711, 83 L.Ed.2d 649 (1985) (O’Connor, J., concurring). Accepting EPA’s argument in this" }, { "docid": "8880669", "title": "", "text": "bankruptcy. See In re Jensen, 127 B.R. at 32-33; see also Burlington N.R.R. v. Dant & Russell, Inc. (In re Dant & Russell, Inc.), 853 F.2d 700, 709 (9th Cir.1988); Grady v. A.H. Robins Co., 839 F.2d 198, 203 (4th Cir.), cert. dismissed sub nom. Joynes v. A.H. Robins Co., 487 U.S. 1260, 109 S.Ct. 201, 101 L.Ed.2d 972 (1988); Lovett v. Honeywell, Inc. (In re Transportation Sys. Int’l, Inc.), 110 B.R. 888, 894 (D.Minn.1990), aff’d, 930 F.2d 625 (8th Cir.1991); Danzig Claimants v. Grynberg (In re Grynberg), 113 B.R. 709, 712 (Bankr.D.Colo.1990); In re Johns-Manville Corp., 57 B.R. 680, 690 (Bankr.S.D.N.Y.1986) (applying the standard in the asbestos liability context). Thus, under this “underlying act” or “debt- or’s conduct” approach, even if the EPA does not yet know of a potential CERCLA claim against the debtor, the debtor’s liability is discharged so long as the debtor’s conduct relating to the contamination concluded prior to its bankruptcy petition. Rather than looking to substantive non-bankruptcy law to determine when a CERCLA claim arises, these courts emphasize substantive bankruptcy law and policy. This underlying act standard has been criticized as patently unfair to creditors because it would allow a polluting party to undergo bankruptcy proceedings and receive a discharge from any liabilities before the EPA-or any other credit- ever has a reason to know about the debtor’s involvement in the release or threatened release of hazardous waste. See, e.g., In re Chicago, 974 F.2d at 784. Indeed, “despite Congress’ repeal of the ‘provability requirement and the broad definition of ‘claim,’ nothing in the legislative history or the Code suggests ... Congressional intent to discharge a creditor’s rights before the creditor knew or should have known that its rights existed.” Jensen, 995 F.2d at 980 (quoting Saville, supra, at 349). This approach also has been criticized for hindering several of CERCLA’s goals.. See, e.g., id. (quoting Saville, supra, at 350). CERCLA’s central purposes are to protect public health and safety by facilitating an expeditious cleanup of hazardous waste and to hold polluters accountable for their actions. Saville, supra, at 327 (citing H.R. Rep. 96-1016(I)," }, { "docid": "1869013", "title": "", "text": "13, 17 (Bankr.S.D.Cal.1989) (citing Standard Oil Co. v. Kurtz, 330 F.2d 178, 180 (8th Cir.1964)). The applicant must prove by a preponderance of the evidence entitlement to the administrative expense. Id. (citing In re Patch Graphics, 58 B.R. 743, 746 (Bankr.W.D.Wis.1986)). Administrative status is allowed when a claim (1) is incurred postpetition, (2) directly and substantially benefits the estate, and (3) is an actual and necessary expense. E.g., In re Great Northern Forest Prods., Inc., 135 B.R. 46, 60 (Bankr.W.D.Mich.1991). We affirm based on the first element and therefore do not address the other two. 1. Damages Caused Pre-Petition Although the bankruptcy court’s findings of fact and conclusions of law raise some questions, the court clearly found that the petroleum leaks on the Hanna property occurred pre-petition, and that neither Hanna nor Mitchell “added any significant new contamination to the Hanna land postpetition.” Findings (4-7-92) at 2-7. As noted above, the bankruptcy court also found: Gull asserted and proved at trial that contaminated subsurface water continued to migrate to its land from the polluted Hanna land.... Findings (4-7-92) at 3. The apparent inconsistency in these findings is resolved through the court’s citation to In re Jensen, 127 B.R. 27 (9th Cir. BAP 1991), aff'd, 995 F.2d 925 (9th Cir.1993). In Jensen, the BAP discussed when claims arise for purposes of dischargeability. The BAP held that the estate’s cost-recovery claim was dischargeable because it arose from the debtor’s prepetition actions even though the state’s right to recover did not arise until postpetition when it cleaned up the site. 127 B.R. at 33. Jensen cites as authoritative In re Chateaugay Corp., 112 B.R. 513 (S.D.N.Y.1990), aff'd, 944 F.2d 997 (2d Cir.1991), for the proposition that a claim arises upon the actual or threatened release of hazardous waste by the debtor. Consequently, if a tort occurs prepetition, with the injury occurring postpetition, such claim is deemed to have arisen prepetition. Jensen, 127 B.R. at 33 (citing Chateaugay, 112 B.R. at 522). In other words, so long as a prepetition triggering event had occurred, the claim was dis-chargeable regardless of when the claim for" }, { "docid": "14776624", "title": "", "text": "have had actual knowledge of hazardous waste containers at the railyard”); In re Jensen, 995 F.2d 925, 929 (9th Cir.1993) (“the bankruptcy claim arises at the time of the debtor’s conduct relating to the contamination”), affirming In re Jensen, 127 B.R. 27, 33 (Bankr. 9th Cir.1991) (“a claim arises for purposes of discharge upon the actual or threatened release of hazardous waste by the debtor”); In re Chicago, Milwaukee, St. Paul & Pacific Railroad Co., 974 F.2d 775, 786 (7th Cir.1992); NCL Corp. v. Lone Star Bldg. Centers (Eastern) Inc., 144 B.R. 170, 180 (S.D.Fla.1992) (dismissing hazardous substance counterclaims based upon pre-petition releases or threatened releases following the reasoning in Chateaugay, supra, that “the Code contemplates discharge of unma-tured or contingent claims which are not asserted”). See also In re National Gypsum Co., 139 B.R. 397, 408 (N.D.Tex.1992) (employing the “fair contemplation” standard; relevant factors include “knowledge by the parties of a site in which a PRP may be liable”). Cf. United States v. Union Scrap & Metal, 123 B.R. 831 (D.Minn.1990); In re M. Frenville Co., 744 F.2d 332 (3rd Cir.1984), cert. denied, 469 U.S. 1160, 105 S.Ct. 911, 83 L.Ed.2d 925 (1985). In In re Penn Cent. Transp. Co., 42 B.R. 657, 675 (E.D.Pa.1984), aff'd, 771 F.2d 762 (3d Cir.), cert. denied, 474 U.S. 1033, 106 S.Ct. 596, 88 L.Ed.2d 576 (1985), involving unknown antitrust claims, the court held that “[u]nder [the Bankruptcy Act] and the Bankruptcy Code, claims which are asserted after confirmation and consummation are discharged and there is no exception made for claims which were unknown to a claimant until after consummation of the Plan.” See also, In re Edge, 60 B.R. 690 (Bankr.M.D.Tenn.1986) (bankruptcy “claim” arose at the time of negligent work by dentist even though the injury was discovered post-petition, so as to stay malpractice action against the debtor under 11 U.S.C. § 362). Respondents rely heavily on In the Matter of Johns-Manville Corporation, 68 B.R. 618 (Bankr.S.D.N.Y.1986), aff'd 843 F.2d 636 (2nd Cir.1988) and In re A.H. Robins Company, Inc., 88 B.R. 742 (Bankr.E.D.Va.1988), aff'd, 880 F.2d 694 (4th Cir.1989), asserting that" }, { "docid": "13469058", "title": "", "text": "claim arises. In re Chateaugay “relationship” approach adopts “so broad a definition of claim so as to encompass costs that could not ‘fairly have been contemplated by the EPA or the debtor pre-petition.” Id. at 407. In rejecting that approach, the court in In re National Gypsum remarked that conduct giving rise to release or threatened release of hazardous substances pre-petition should be the relevant inquiry in determining the existence of a claim in bankruptcy, [but] this Court is not willing to favor the Code’s objective of a “fresh start” over CERCLA’s objective of environmental cleanup to the extent exhibited by Chateaugay_ [TJhere exists no distinction between debtor’s conduct and the release or threatened release resulting from this conduct. Id. (footnotes omitted). Here, the California Water Board and California DHS are agencies of the same state, involved generally in many of the same capacities. An inspector from the California Water Board visited the inactive lumberyard on January 25, 1984, and observed the fungicide dip tank. The Board notified Robert Jensen of the problem by letter dated February 2, 1984. The letter demonstrates that the Board knew of the serious environmental hazard that existed at the site: If this cinder block tank were to be broken through accident or vandalism, the contents of the tank would reach the South Fork Trinity River via a small stream which runs behind the building. The volume of fungicide involved would probably cause a major fish kill in the South Fork Trinity River and could possibly affect the health of downstream water users. ER at 27. We will impute the California Water Board’s knowledge to California DHS. We conclude that the state had sufficient knowledge of the Jensens’ potential liability to give rise to a contingent claim for cleanup costs before the Jensens filed their personal bankruptcy petition on February 13, 1984. The claim filed by California DHS against the Jensens therefore was discharged in the Jensens’ bankruptcy. AFFIRMED. . The JLC mill was located outside of Hyampom, California, a small town situated roughly halfway between Eureka and Redding, California, and almost directly due south" } ]

[ { "docid": "21099850", "title": "", "text": "the oil and gas industry’s offshore operations, drilling fluids make up the majority of the effluent produced from exploration and development, and produced water represents a majority of the effluent from production. Produced sand is a minimal component of the effluent from production. D. The Standard of Review When a court reviews an agency’s construction of a statute, it is confronted with two inquiries. First and foremost is whether Congress has directly spoken to the matter at issue. Chevron, U.S.A., Inc. v. NRDC, Inc., 467 U.S. 837, 842, 104 S.Ct. 2778, 2781, 81 L.Ed.2d 694 (1984). “If the intent of Congress is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress.” Id. at 842-43, 104 S.Ct. at 2781-82 (footnote omitted). If the court decides that Congress has not directly addressed the precise issue at hand, however, the court may not simply dictate its own construction of the statute. Id. at 843, 104 S.Ct. at 2782. “Rather, if the statute is silent or ambiguous with respect to the specific issue, the question for the court is whether the agency’s answer is based on a permissible construction of the statute.” Id. (footnote omitted). The language of the Act clearly manifests Congress’ intention that EPA formulate BPT, BAT, BCT, and NSPS within certain time deadlines and having considered various factors. § 1311(b). Congress set forth the goal of the Act and left its implementation and details to the EPA. In construing regulations promulgated by EPA, we heed the wide latitude given the Secretary by the CWA. Cf. Babbitt v. Sweet Home Chapter, — U.S. -, -, 115 S.Ct. 2407, 2416, 132 L.Ed.2d 597 (1995) (interpreting the Endangered Species Act). It has long been recognized that a great deal of deference should be given to an agency’s construction of a statutory scheme that it is entrusted to administer. Chevron, 467 U.S. at 844, 104 S.Ct. at 2782-83; Aluminum Co. of America v. Central Lincoln Peoples’ Util. Dist., 467 U.S. 380, 389, 104 S.Ct. 2472, 2479, 81 L.Ed.2d" } ]

[ { "docid": "8432819", "title": "", "text": "in which the compensation is not premised on who may have been responsible for causing such injury. No-fault insurance includes personal injury protection and medical payments benefits in cases involving personal injuries resulting from operation of a motor vehicle. 32 C.F.R. § 220.12(i) (1995). USAA urges us to reject this definition, arguing that “no-fault insurance” refers only to a state-adopted regime of automobile insurance that pays without regard to fault. When an agency has issued an interpretation of a statute it is entitled to administer, our own interpretation of the statute is not entirely de novo. The Supreme Court has given us guidance, in Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842-43, 104 S.Ct. 2778, 2781-82, 81 L.Ed.2d 694 (1984), in reviewing such agency regulations: When a court reviews an agency’s construction of the statute which it administers, it is confronted with two questions. First, always, is the question whether Congress has directly spoken to the precise question at issue. If the intent of Congress is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress. If, however, the court determines Congress has not directly addressed the precise question at issue, the court does not simply impose its own construction, as would be necessary in the absence of administrative interpretation. Rather, if the statute is silent or ambiguous with respect to the specific issue, the question for the court is whether the agency’s answer is based on a permissible construction of the statute. [Footnotes omitted.] Accordingly, our first task is to apply the “traditional tools of statutory construction,” id. at 843 n. 9, 104 S.Ct. at 2781 n. 9, and determine whether the statute is ambiguous. If we decide that Congress has spoken directly to the precise issue, our job is done; we will “give effect to the unambiguously expressed intent of Congress.” Id. at 843, 104 S.Ct. at 2781. If, however, we find that Congress has not spoken plainly to the issue and the statute is ambiguous, we" }, { "docid": "23106454", "title": "", "text": "instance, therefore, I am not prepared to order a construction in conflict with the view of the agency happily charged with these statutes’ interpretation. Accordingly I conclude it best, in light of all the circumstances, that we defer to the agency. Congress has given the Secretary the power to administer both the Medicare and Medicaid Acts, see 42 U.S.C. §§ 1395ff(a), 1396a(b), and deference is due to the Secretary’s interpretations of them under the principles announced in Chevron U.S.A. v. Natural Resources Defense Council, 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). Those principles, which are well known but merit repeating here, are stated quite simply: When a court reviews an agency’s construction of the statute which it administers, it is confronted with two questions. First, always, is the question whether Congress has directly’ spoken to the precise question at issue. If the intent of Congress is clear, that is the end of the matter; for the court, as well 'as the agency, must give effect to the unambiguously expressed intent of Congress. If, however, the court determines Congress has not directly addressed the precise question at issue, the court does not simply impose its own construction on the statute, as would be necessary in the absence of an administrative interpretation. Rather, if the statute is silent or ambiguous with respect to the specific issue, the question for the court is whether the agency’s answer is based on a permissible construction of the statute. ‡ ‡ & sfc ‡ If Congress has explicitly left a gap for the agency to fill, there is an express delegation of authority to the agency to elucidate a specific provision of the statute by regulation. Such legislative regulations are given controlling weight unless they are arbitrary, capricious, or manifestly contrary to the statute. Sometimes the legislative delegation to an agency on a particular question is implicit rather than explicit. In such a case, a court may not substitute its own construction of a statutory provision for a reasonable interpretation made by the administrator of an agency. Id. at 842-44, 104 S.Ct. at" }, { "docid": "10873311", "title": "", "text": "Internal Revenue Service requires financial institutions to issue a Form 1099-C as a reporting requirement, the court disagrees that the information letters are determinative as to the issue here, finding that the language of the Regulation itself is open to interpretation. On the one side, the court recognizes that the Internal Revenue Service’s interpretation of the Code of Federal Regulations may be entitled to deference, as directed by the Supreme Court: When a court reviews an agency’s construction of the statute which it administers, it is confronted with two questions. First, always, is the question whether Congress has directly spoken to the precise question at issue. If the intent of Congress is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress. If, however, the court determines Congress has not directly addressed the precise question at issue, the court does not simply impose its own construction on the statute, as would be necessary in the absence of an administrative interpretation. Rather, if the statute is silent or ambiguous with respect to the specific issue, the question for the court is whether the agency’s answer is based on a permissible construction of the statute. “The power of an administrative agency to administer a congressionally created ... program necessarily requires the formulation of policy and the making of rules to fill any gap left, implicitly or explicitly, by Congress.” Morton v. Ruiz, 415 U.S. 199, 231, 94 S.Ct. 1055, 1072, 39 L.Ed.2d 270 (1974). If Congress has explicitly left a gap for the agency to fill, there is an express delegation of authority to the agency to elucidate a specific provision of the statute by regulation. Such legislative regula tions are given controlling weight unless they are arbitrary, capricious, or manifestly contrary to the statute. Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 843-44, 104 S.Ct. 2778, 2781-82, 81 L.Ed.2d 694 (1984) (footnotes omitted); see also Bononi v. Bayer Emps. Credit Union (In re Zilka), 407 B.R. 684, 688 (Bankr.W.D.Pa.2009). Nevertheless, an" }, { "docid": "23258600", "title": "", "text": "language, we must conclude that student disciplinary records remain protected under the term “education records.” In addition to the exemptions discussed above, Congress also provided some exceptions to the “education records” definition. Relevant among those exceptions, the term “education records” does not include “records maintained by a law enforcement unit of the educational agency or institution that were created by that law enforcement unit for the purpose of law enforcement.” 20 U.S.C. § 1232g(a)(4)(B)(ii). Because law enforcement records are by definition not education records, the FERPA does not protect law enforcement records or place restriction on their disclosure. The Chronicle notes, without objection, that student disciplinary proceedings can and sometimes do involve serious criminal conduct. Based upon that fact, it argues that student disciplinary records addressing such conduct are law enforcement records and should be disclosed to the public. Faced with this argument and the fact that this provision is somewhat ambiguous, the district court turned to the DOE’s regulations for interpretive assistance. We agree with this approach. In Chevron U.S.A., Inc. v. NRDC, 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984), the Supreme Court outlined a two-step procedure to determine Congressional intent in a statute. First, Chevron requires courts to determine whether Congress has directly spoken to the precise question at issue. Id. at 842—43, 104 S.Ct. 2778. If so, then this panel must give effect to the unambiguously expressed intent of Congress. Id. If the statute is silent or ambiguous with respect to the specific issue, this Court must defer to the agency’s interpretation as long as it is based on a permissible construction of the statute. Id. We find the following definitions and interpretations to be reasonable and permissible constructions of the relevant statute. “A [l]aw enforcement unit means any ... component of an educational agency or institution ... that is officially authorized or designated by that agency or institution to [e]nforce any local, State, or Federal law ... or [m]aintain the physical security and safety of the agency or institution.” 34 C.F.R. § 99.8(a)(1)(i),(ii). “A component of an educational agency or institution does not" }, { "docid": "4241953", "title": "", "text": "the owner of a single-member LLC from any possibility of personal liability for the LLC’s payroll tax liability — shows that the current check-the-box regulation is “wrong” (id. at 7). Finding no merit in any of McNamee’s contentions, we affirm. A. The Validity of the Treasury Regulations 1. The Standard of Review In reviewing a challenge to an agency regulation interpreting a federal statute that the agency is charged with administering, the first duty of the courts is to determine “whether the statute’s plain terms ‘directly addres[s] the precise question at issue.’ ” National Cable & Telecommunications Ass’n v. Brand X Internet Services, 545 U.S. 967, 986, 125 S.Ct. 2688, 162 L.Ed.2d 820 (2005) (“National Cable ”) (quoting Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 843, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984)). “If the statute is ambiguous on the point, we defer ... to the agency’s interpretation so long as the construction is ‘a reasonable policy choice for the agency to make.’ ” National Cable, 545 U.S. at 986, 125 S.Ct. 2688 (quoting Chevron, 467 U.S. at 845, 104 S.Ct. 2778). As stated in Chevron itself, [f]irst, always, is the question whether Congress has directly spoken to the precise question at issue. If the intent of Congress is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress. If, however, the court determines Congress has not directly addressed the precise question at issue, the court does not simply impose its own construction on the statute, as would be necessary in the absence of an administrative interpretation. Rather, if the statute is silent or ambiguous with respect to the specific issue, the question for the court is whether the agency’s answer is based on a permissible construction of the statute. 467 U.S. at 842-43, 104 S.Ct. 2778 (footnotes omitted) (emphases added). “If Congress has explicitly left a gap for the agency to fill, there is an express delegation of authority to the agency to elucidate a specific provision of" }, { "docid": "16584682", "title": "", "text": "BOP’s obligation to consider the five factors of section 3621(b) when making placement or transfer decisions. See Woodall, 432 F.3d at 250 (rejecting notion that section 3624(c)’s obligation regarding CCC or similar placements during pre-release overrides BOP’s duty to consider 3621(b) factors prior to pre-release period). Here, the Respondent has conceded that a CCC is a correctional facility. Thus, transfer to a CCC is authorized by section 3621(b) at any time during an inmate’s sentence. D. Chevron Analysis The BOP also argues that the agency’s interpretation of section 3621(b) should be granted deference under the principles of 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). A two-step inquiry guides whether an agency’s interpretation of a statute it administers is subject to Chevron deference: First, always, is the question whether Congress has directly spoken to the precise question at issue. If the intent of Congress is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the unambig uously expressed intent of Congress. If, however, the court determines Congress has not directly addressed the precise question at issue, the court does not simply impose its own construction on the statute, as would be necessary in the absence of an administrative interpretation. Rather, if the statute is silent or ambiguous with respect to the specific issue, the question for the court is whether the agency’s answer is based on a permissible construction of the statute. Chevron, 467 U.S. at 842-43, 104 S.Ct. 2778 (footnotes omitted). As noted above, the BOP’s interpretation of section 3621(b) is contrary to the plain language of section 3621(b), ie., that the agency consider the enumerated factors before making placement and transfer determinations. The BOP regulation, which provides that the agency may not consider those factors in full, fails to give effect to the “unambiguously expressed intent of Congress,” id. at 843, 104 S.Ct. 2778, and thus is not entitled to deference under Chevron. See Woodall, 432 F.3d at 249. E. Remedy Evans has asked the court" }, { "docid": "19745094", "title": "", "text": "the case here, the court is called upon to review an agency’s interpretation of a statute that the agency is responsible for administering, the standard of review is governed by a two-step test articulated in Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). Sierra Club v. Johnson, 436 F.3d 1269, 1274 (11th Cir.2006). “First, always, is the question whether Congress has directly spoken to the precise question at issue. If the intent of Congress is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress. If, however, the court determines Congress has not directly addressed the precise question at issue, the court does not simply impose its own construction on the statute, as would be necessary in the absence of an administrative interpretation. Rather, if the statute is silent or ambiguous with respect to the specific issue, the question for the court is whether the agency’s answer is based on a permissible construction of the statute.” Chevron, 467 U.S. at 842-43, 104 S.Ct. 2778 (footnotes omitted). Should the court determine that the statute is silent or ambiguous, the Chevron standard of review is further refined at step two. If the statute contains an express delegation of authority to the agency to fill in a gap left by the statute, then the agency’s gap-filling regulation must be upheld unless it is “arbitrary, capricious, or manifestly contrary to the statute.” Id. at 844, 104 S.Ct. 2778. If, on the other hand, the statute’s delegation to the agency is merely implicit, then the court “may not substitute its own construction of a statutory provision for a reasonable interpretation made by the administrator of an agency.” Id. This two-step standard of review, known as Chevron deference, governs the cpurt’s review of the Forest Service’s interpretation of the ARA. As it turns out, see infra Subsection III.A.2.b., there is ultimately no need to apply Chevron deference in this case, as the court’s consideration of the merits of the" }, { "docid": "14436729", "title": "", "text": "rest by the interpretation of the statute by the EPA, the agency charged with administering CERCLA. When a court reviews an agency’s construction of [a] statute which it administers, it is confronted with two questions. First, always, is the question whether Congress has directly spoken to the precise question at issue. If the intent of Congress is clear, that is the end of the matter;_ If, however, the court determines Congress has not directly addressed the precise question at issue, the court does not simply impose its own construction on the statute, as would be necessary in the absence of an administrative interpretation. Rather, if the statute is silent or ambiguous with respect to the specific issue, the question for the court is whether the agency’s answer is based on a permissible construction of the statute. Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842-43, 104 S.Ct. 2778, 2781-82, 81 L.Ed.2d 694 (1984). ASARCO argues that under INS v. Cardoza-Fonseca, 480 U.S. 421, 445-49, 107 S.Ct. 1207, 1220-22, 94 L.Ed.2d 434 (1987), a question of pure statutory construction entitles the agency charged with enforcing the stat ute to no deference. While Cardoza-Fonse-ca might be read for this broad proposition, such a reading would create a direct conflict with Chevron. Moreover, the Court has explained the relationship between the two cases. In NLRB v. United Food & Commercial Workers Union, Local 23, AFL-CIO, 484 U.S. 112, 123, 108 S.Ct. 413, 416, 98 L.Ed.2d 429 (1987), it referred to both cases in determining the meaning of a statute without noting any conflict. It suggested that the result in Cardoza-Fonseca came from the first step of Chevron’s two-step analysis. It said that the first step was to try “to determine congressional intent, using ‘traditional tools of statutory construction.’ ” Id. The court went on, however, to cite Chevron for the proposition that if the first step failed, the agency’s interpretation should be accepted if reasonable. Id. The EPA has interpreted section 9601(14) to mean that the Bevill Amendment exception in subsection (C) refers only to that subsection. 48 Fed.Reg." }, { "docid": "15010325", "title": "", "text": "In this case, we therefore apply the Administrative Procedure Act (“APA”) “and seek to determine, as did the district court, whether on the administrative record the agency action was” in violation of the APA’s provisions. Id. The district court found that the Coast Guard’s interpretation of the “major component” provision, holding that it applied only to separable components, was offered only in informal opinion letters. Because the district court held that the separable/inseparable distinction was not present in either the statutory language or the administrative regulations, it accorded only Skidmore deference to the agency’s interpretation. J.A. at 240-41. Under the Skidmore standard, the court defers to an agency interpretation only if and to the extent that it is persuasive. Skidmore, 323 U.S. at 140, 65 S.Ct. 161. The district court found that the Coast Guard’s interpretation had “no foundation in [the] statute or regulation,” J.A. at 242, nor in the legislative history or purpose, J.A. at 243-44, and it therefore declined to find the agency’s construction persuasive. Instead, the district court invalidated the Coast Guard’s determination under the major component test and remanded the issue to the agency. J.A. at 245. On appeal the Coast Guard argues that its determination that the work on the Trader did not fall under the major component provision of the administrative regulations is entitled to deference under 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). Under Chevron, where a statute is “silent or ambiguous with respect to the specific issue,” reviewing courts defer to the administering agency’s interpretation so long as it “is based on a permissible construction of the statute.” Id. at 843, 104 S.Ct. 2778. The agency bases this argument on the delegation provisions contained within the Jones Act and the Vessel Documentation Act. Appellant’s Br. at 28 (citing Pub.L. No. 84-714, 1956 U.S.C.C.A.N. 622; Pub.L. No. 96-594, 94 Stat. 3453 (1980)). Therefore, the Coast Guard argues that its regulations interpreting the language of the Jones Act and its determinations pursuant to those regulations should be upheld unless they are found" }, { "docid": "22813597", "title": "", "text": "30, 1990). Individual liability may or may not tip that scale unevenly; that is for Congress to decide. Because neither the plain language, nor the statutory structure, legislative history, and purpose are helpful, we find the statute inscrutable and Congress’s intent cryptic and imprecise. We therefore turn to applicable agency interpretations, as the statute itself is ambiguous. c. Agency Deference under Chevron The Department of Justice (“DOJ”) has interpreted § 12203 as rendering those individuals acting in their individual capacities amenable to private suit. See Nondiscrimination on the Basis of Disability in State and Local Government, 28 C.F.R. Part 35 (2003). When a court reviews an agency’s construction of the statute which it administers, it is confronted with two questions. First, always, is the question whether Congress has directly spoken to the precise question at issue. If the intent of Congress is clear, .that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress. If, however, the court determines Congress has not directly addressed the precise question at issue, the court does not simply impose its own construction on the statute, as would be necessary in the absence of an administrative interpretation. Rather, if the statute is silent or ambiguous with respect to the specific issue, the question for the court is whether the agency’s answer is based on a permissible construction of the statute. Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 842-43, 104 S.Ct. 2778, 2781-82, 81 L.Ed.2d 694 (1984) (footnotes omitted). If the intent of Congress is ambiguous or unclear, as we have said it is here, Chevron requires courts to give an agency’s permissible construction of a statute controlling effect. See 467 U.S. at 843, 844, 104 S.Ct. at 2782; Christensen v. Harris County, 529 U.S. 576, 586-87, 120 S.Ct. 1655, 1662, 146 L.Ed.2d 621 (2000). That construction must first qualify for Chevron deference, however. See United States v. Mead Corp., 533 U.S. 218, 226, 230 n. 11, 121 S.Ct. 2164, 2171, 2172 n. 11, 150 L.Ed.2d 292" }, { "docid": "4408460", "title": "", "text": "interpreted these provisions of the Fair Housing Act to prohibit “[r]efus-ing to provide ... property or hazard insurance for dwellings or providing such ... insurance differently because of race ...” 24 C.F.R. § 100.70(d)(4). Plaintiffs argue that HUD, in promulgating this regulation, has exceeded the authority delegated to it by Congress under the Fair Housing Act, and therefore the Dayton defendants lack the authority to investigate claims of discriminatory insurance underwriting practices. The district court rejected plaintiffs’ argument and adopted the reasoning of the magistrate judge in his report and recommendation, which concluded that HUD had “not exceeded its statutory authority in enacting its regulations because the interpretation of the Fair Housing Act embodied in that regulation is one to which judicial deference is to be accorded under [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) ]. Furthermore, even in the absence of Chevron deference, HUD’s interpretation of the Fair Housing Act is correct.” J.A. 178. We are confronted with two questions when we review an agency’s construction of a statute. In Lansing Dairy, Inc. v. Espy, 39 F.3d 1339 (6th Cir.1994), we stated: First and foremost is the question whether Congress has directly spoken to the matter at hand. Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842 (1984). “If the intent of Congress is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress.” Id. at 842-43. If, however, the court decides that Congress has not directly addressed the precise question at issue, the court may not simply impose its own construction of the statute. Id. at 843. “Rather, if the statute is silent or ambiguous with respect to the specific issue, the question for the court is whether the agency’s answer is based on a permissible construction of the statute.” Id. Lansing Dairy, 39 F.3d at 1349-50 (parallel citations omitted). In Chevron, the Court also stated that in determining whether an agency’s answer is based on" }, { "docid": "3005910", "title": "", "text": "the standard for summary judgment is provided by 5 U.S.C. § 706(2), the Administrative Procedure Act (“APA”). Environment Now! v. Espy, 877 F.Supp. 1397, 1421 (E.D.Cal.1994). “The question is not whether there is a genuine issue of material fact, but rather whether the agency action was arbitrary, capricious, an abuse of discretion, not in accordance with law, or unsupported by substantial evidence on the records taken as a whole.” Id. (citing Good Samaritan Hospital, Corvallis v. Mathews, 609 F.2d 949, 951 (9th Cir.1979)). The precise nature of judicial review of an agency decision is whether the issue is one of fact or law. Id. An agency’s factual findings are entitled to “substantial deference.” Id., (citing 5 U.S.C. §§ 706(2)(A) & (E)). However, since courts are the final authorities regarding statutory interpretation, “legal issues, including questions of statutory construction, are reviewed de novo.” Id. (citing Blackfeet Tribe v. U.S. Department of Labor, 808 F.2d 1355, 1357 (9th Cir.1987)). Nevertheless, in some circumstances, an agency’s interpretation of governing statutes and regulations is entitled to deference. Id. (citing Chevron U.S.A. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 847-48, 104 S.Ct. 2778, 2781, 81 L.Ed.2d 694 (1984)). Under Chevron, a two-step analysis is employed when reviewing an agency’s statutory interpretation: First, always, is the question whether Congress has directly spoken to the precise question at issue. If the intent of Congress is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress. If, however, the court determines Congress has not directly addressed the precise question at issue, the court does not simply impose its own construction on the statute, as would be necessary in the absence of an administrative interpretation. Rather, if the statute is silent or ambiguous with respect to the specific issue, the question for the court is whether the agency’s answer is based upon a permissible construction of the statute. Chevron, 467 U.S. at 842-43, 104 S.Ct. 2778, 2781-82, 81 L.Ed.2d 694. The Endangered Species Act (“ESA”), 16 U.S.C. § 1531, et seq.," }, { "docid": "3127047", "title": "", "text": "an agency is to be given “controlling weight” unless it is “arbitrary, capricious, or manifestly contrary to controlling law.” 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), 467 U.S. at 844, 104 S.Ct. 2778. In Chevron, the Supreme Court set forth the following standard for reviewing an agency’s determination: When a court reviews an agency’s construction of the statute which it administers, it is confronted with two questions. First, always, is the question whether Congress has directly spoken to the precise question at issue. If the intent of Congress is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress. If, however, the court determines Congress has not directly addressed the precise question at issue, the court does not simply impose its own construction on the statute, as would be necessary in the absence of an administrative interpretation. Rather, if the statute is silent or ambiguous with respect to the specific issue, the question for the court is whether the agency’s answer is based on a permissible construction of the statute. Id. at 842-43, 104 S.Ct. 2778. See also French Hosp., 89 F.3d at 1416. The Court’s review of the Secretary’s decision is limited to the documentation provided in the rulemaking record. See French Hosp., 89 F.3d at 1416; Vista Hill Foundation, Inc. v. Heckler, 767 F.2d 556, 559 (9th Cir.1985). V. Analysis A. Has Congress Directly Spoken to the Precise Question at Issue? Plaintiff contends that Congress stated its requirement that the Secretary implement a carry foiward exception to the LCC through its language in the Committee Reports. However, the principles of statutory construction make it clear that the first part of the Chevron test may only be answered by reference to the language of the statute itself. See Chevron, 467 U.S. at 842-43, 104 S.Ct. 2778; Northwest Forest Resource Council v. Glickman, 82 F.3d 825, 834 (9th Cir.1996) (“[0]ur approach to statutory interpretation is to look to legislative history only where" }, { "docid": "22425604", "title": "", "text": "departure from the uniform price in order to account for factors such as differences in location. Such a reading indicates that the term minimum price encompasses both the original uniform price and the adjusted price. Since the term minimum price includes adjusted prices, any regulation changing the adjustments in price must necessarily affect the minimum price. Farmers Union, 1992 WL 71372, at *6 (footnote omitted). IV. When a court reviews an agency’s construction of a statute it is confronted with two questions. First and foremost is the question whether Congress has directly spoken to the matter at hand. Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842, 104 S.Ct. 2778, 2781, 81 L.Ed.2d 694 (1984). “If the intent of Congress is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress.” Id. at 842-43, 104 S.Ct. at 2781. If, however, the court decides that Congress has not directly addressed the precise question at issue, the court may not simply impose its own construction of the statute. Id. at 843, 104 S.Ct. at 2781-82. “Rather, if the statute is silent or ambiguous with respect to the specific issue, the question for the court is whether the agency's answer is based on a permissible construction of the statute.” Id. Moreover, if a court finds the language of §§ 608c(5) and 608e(18) to be ambiguous, the Secretary’s construction may not be disturbed if it reflects a reasonable construction of the statute and does not otherwise conflict with Congress’ expressed intent. Rust v. Sullivan, 500 U.S. 173, 184, 111 S.Ct. 1759, 1767-68, 114 L.Ed.2d 233 (1991). More importantly, in determining whether the Secretary’s construction is permissible, this Court “need not conclude that the agency construction was the only one it permissibly could have adopted ... or even the reading the court would have reached if the question initially had arisen in a judicial proceeding.” Chevron, 467 U.S. at 843 n. 11, 104 S.Ct. at 2782 n. 11. “Rather, substantial deference is accorded to the" }, { "docid": "13699837", "title": "", "text": "the statute. Plaintiffs, therefore, raise an issue of statutory construction. In Chevron, U.S.A, Inc. v. Natural Resources Defense, 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984), the United States Supreme Court established guidelines for courts to follow when reviewing an agency’s construction of a statute. When a court reviews an agency’s construction of the statute which it administers, it is confronted with two questions. First, always, is the question whether Congress has directly spoken to the precise question at issue. If the intent of Congress is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress. If, however, the court determines Congress has not directly addressed the precise question at issue, the court does not simply impose its own construction on the statute, as would be necessary in the absence of an administrative interpretation. Rather, if the statute is silent or ambiguous with respect to the specific issue, the question for the court is whether the agency’s answer is based on a permissible construction of the statute.... If Congress has explicitly left a gap for the agency to fill, there is an express delegation of authority to the agent to elucidate a specific provision of the statute by regulation. Such legislative regulations are given controlling weight unless they are arbitrary, capricious, or manifestly contrary to the statute. Sometimes the legislative delegation to an agency on a particular question is implicit rather than explicit. In such a case, a court may not substitute its own construction of a statutory provision for a reasonable interpretation made by the administrator of an agency. Id. 467 U.S. at 842-44, 104 S.Ct. 2778 (footnotes omitted). In response to the first question posed by the Chevron Court, this Court concludes that Congress has not directly spoken to the precise question at issue. That question is whether a BA is the sole means for identifying whether an endangered or threatened species is likely to be adversely affected by an agency’s action. Plaintiffs point to the use of the compulsory" }, { "docid": "9456406", "title": "", "text": "authorizes the Court to overturn agency action that is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” As the Supreme Court has noted, “the scope of review under the ‘arbitrary and capricious’ standard is narrow and a court is not to substitute its judgment for that of the agency.” Motor Vehicle Manufacturers Ass’n v. State Farm Mutual Automobile Ins. Co., 463 U.S. 29, 43, 103 S.Ct. 2856, 2866, 77 L.Ed.2d 443 (1983). At the same time, the court must assure that the agency “examine[d] the relevant data and articulate[d] a satisfactory explanation for its action including a ‘rational connection between the facts found and the choice made.’ ” Id. (quoting Burlington Truck Lines, Inc. v. United States, 371 U.S. 156, 168, 83 S.Ct. 239, 245, 9 L.Ed.2d 207 (1962)). Before reaching that determination, the Court must address a preliminary question raised by plaintiffs: whether the Coast Guard properly interpreted the second proviso when issuing the S/S MONTEREY “rebuild” rulings. Resolution of this issue is governed by the Supreme Court’s widely-cited passage in Chevron, U.S.A., Inc. v. NRDC, 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984): When a court reviews an agency’s construction of the statute which it administers, it is confronted with two questions. First, always, is the question whether Congress has directly spoken to the precise question at issue. If the intent of Congress is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress. If, however, the court determines Congress has not directly addressed the precise question at issue, the court does not simply impose its own construction on the statute, as would be necessary in the absence of an administrative interpretation. Rather, if the statute is silent or ambiguous with respect to the specific issue, the question for the court is whether the agency’s answer is based on a permissible construction of the statute. 467 U.S. at 842-43, 104 S.Ct. at 2781 (footnotes omitted). To these questions the Court now turns. B. Interpretation of" }, { "docid": "15559432", "title": "", "text": "accompanying regulations. The Seventh Circuit began its analysis by observing that courts generally accord “substantial deference to the EPA’s interpretation of the Clean Air Act Amendments....” WEPCO, 893 F.2d at 906. Such deference does not, however, necessarily mean that the EPA has unbridled discretion in construing the CAA. The Seventh Circuit defined the scope of deference by reference to the Supreme Court’s decision 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). In that case, the Court held: When a court reviews an agency’s construction of the statute which it administers, it is confronted with two questions. First, always, is the question whether Congress has directly spoken to the precise question at issue. If the intent of Congress is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress. If, however, the court determines Congress has not directly addressed the precise question at issue, the court does not simply impose its own construction on the statute, as would be necessary in the absence of an administrative interpretation. Rather, if the statute is silent or ambiguous with respect to the specific issue, the question for the court is whether the agency’s answer is based on a permissible construction of the statute. Chevron, 467 U.S. at 842-43, 104 S.Ct. 2778 (footnotes omitted). The Seventh Circuit observed that “we defer ... to an agency’s construction of its own regulations ... [particularly] where, as is the case here, the subject being regulated is technical and complex.” WEPCO, 893 F.2d at 907 (citations omitted). With this background in mind, the Seventh Circuit proceeded to consider whether the proposed changes at WEPCO constituted a “modification” for purposes of the CAA. The Court had no difficulty in concluding that, “under the plain terms of the [CAA], WEPCO’s replacement program constitutes a ‘physical change’ ” and therefore a “modification.” Id. WEPCO proposed to replace rear steam drums on units 2, 3, 4 and 5. Each of the steam drums measured sixty" }, { "docid": "6877387", "title": "", "text": "§ 700.8 (“A warrantor shall not indicate in any written warranty or service contract either directly or indirectly that the decision of the warrantor, service contractor, or any designated third party is final or binding in any dispute concerning the warranty or service contract.”). Specifically, the FTC regulations provide that “[decisions of the Mechanism shall not be legally binding on any person.” Id. § 703.5(j). In its interpretive regulations, the FTC has defined “mechanism” broadly, to include all non-judicial resolution procedures, including arbitration. See 40 Fed.Reg. 60167, 60210 (1975) (stating that binding arbitration is a “mechanism [ ] whose decisions would be legally binding”); see also 40 Fed.Reg. 60618, 60211 (1975) (stating that a “reference within the written warranty to any binding, non-judicial remedy is prohibited by the Rule and the Act”). In determining whether we should defer to the FTC’s interpretation of the MMWA, we look to the Supreme Court’s decision of Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). When a court reviews an agency’s construction of the statute which it administers, it is confronted with two questions. First, always, is the question whether Congress has directly spoken to the precise question at issue. If the intent of Congress is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress. If, however, the court determines Congress has not directly addressed the precise question at issue, the court does not simply impose its own construction on the statute, as would be necessary in the absence of an administrative interpretation. Rather, if the statute is silent or ambiguous with respect to the specific issue, the question for the court is whether the agency’s answer is based on a permissible construction of the statute. Chevron, 467 U.S. at 843-44, 104 S.Ct. at 2781-82. Under this instruction, we must first determine whether Congress directly addressed binding arbitration under the MMWA. See id. If Congress’ intent is clear, our inquiry ends as we must uphold Congress’" }, { "docid": "9456407", "title": "", "text": "passage in Chevron, U.S.A., Inc. v. NRDC, 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984): When a court reviews an agency’s construction of the statute which it administers, it is confronted with two questions. First, always, is the question whether Congress has directly spoken to the precise question at issue. If the intent of Congress is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress. If, however, the court determines Congress has not directly addressed the precise question at issue, the court does not simply impose its own construction on the statute, as would be necessary in the absence of an administrative interpretation. Rather, if the statute is silent or ambiguous with respect to the specific issue, the question for the court is whether the agency’s answer is based on a permissible construction of the statute. 467 U.S. at 842-43, 104 S.Ct. at 2781 (footnotes omitted). To these questions the Court now turns. B. Interpretation of the Second Proviso The parties adopt widely-divergent views of the second proviso. The federal defendants and MLP assert that the phrase “entire rebuilding” is a term of art, with a lengthy history and a well-defined administrative meaning. This meaning is expressed in the Coast Guard’s regulations, which state that “[a] vessel is rebuilt when any considerable part of its hull or superstructure is built upon or substantially altered.” 46 C.F.R. § 67.27-3(a). This interpretation, they contend, is entitled to deference from the Court because it is longstanding, has been consistently applied by the agency and has been recently ratified by Congress. Plaintiffs and amicus Mat-son disagree. They maintain that the meaning of the second proviso is clear and unambiguous, prohibiting any rebuilt vessel from the coastwise trade unless the “entire rébuilding” was accomplished in the United States. According to AHC, AMOS and Matson, the legislative history of the second proviso shows that Congress has allowed for certain limited exemptions to its rebuild prohibition, but none so sweeping as that permitted by the Coast Guard in" }, { "docid": "23134983", "title": "", "text": "we reaffirmed that Chevron was the applicable standard when reviewing an agency’s interpretation of a statute it was charged to administer, stating: 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), the Supreme Court explained how a court should treat an agency interpretation of statutes within the agency’s ambit. When a court reviews an agency’s construction of the statute which it administers, it is confronted -with two questions. First, always, is the question whether Congress has directly spoken to the precise question at issue. If the intent of Congress is clear, that is. the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress. If, however, the court determines Congress has not directly addressed the precise question at issue, the court does not simply impose its own construction on the statute, as would be necessary in the absence of an administrative interpretation. Rather, if the statute is silent or ambiguous with respect to the specific issue, the question for the court is whether the agency’s answer is based on a permissible construction of the statute. 467 U.S. at 842-43, 104 S.Ct. at 2781-82 (emphasis added). The Court went on to state that in determining whether an agency’s answer is based on a permissible construction of a statute, a reviewing “court need not conclude that the agency construction was the only one it permissibly could have adopted to uphold the construe tion, or even the reading the court would have reached if the question initially had arisen in a judicial proceeding.” 467 U.S. at 843 n. 11, 104 S.Ct. at 2782 n. 11. CenTra, Inc., 953 F.2d at 1055-56. The Chevron Court further stated, however, that “[t]he judiciary is the final authority on issues of statutory construction and must reject administrative constructions which are contrary to clear congressional intent.” Chevron, 467 U.S. at 843 n. 9, 104 S.Ct. at 2782 n. 9. This Court also finds Judge Batchelder’s discussion of Chevron in Brown v. Rock Creek Mining Co.," } ]

[ { "docid": "16040808", "title": "", "text": "of policies governed by Illinois law, and cover liabilities of Raymark worldwide. The issue as to which law applies has not been determined nor do we know if Illinois and Connecticut law differ. In any event, state law supplies the rule of decision on the merits and although the presence of state law issues rarely weighs in favor of the surrender of federal jurisdiction, there is nevertheless nothing to indicate that the Illinois state court is incapable of making the appropriate choice of law determination and applying Connecticut law if the court determines that that law governs. The district court was concerned, as we are, that Lumbermens’ rights will not be adequately protected in the Illinois action, but issues regarding allocation of costs among Raymark’s primary insurers and all issues regarding excess policies have been reserved by the Illinois circuit court judge. The Illinois judge, indeed, has not bound Lumbermens to any interim funding order even though other of Raymark’s second-layer excess insurers have been required to provide interim funding. We note further that the Connecticut federal court action was not dismissed but rather was stayed. Thus, if Lumbermens’ fears of inadequate treatment in Illinois are realized, Lumber-mens can return to the district court, which has retained jurisdiction. For the reasons above stated, we affirm the district court’s granting of the stay. . The Bethlehem Contracting court went on to say: Although there is similarity of parties, Mil-stein is named as an individual defendent only in the federal suit, while eleven of the fourteen defendants in state court are unique to that action. And although the disputes in both the state and federal forums stem from the Bank of America Plaza construction project, Bethlehem's federal suit raises a cause of action in tort against Milstein that has no counterpart in the state litigation. 800 F.2d at 328." } ]

[ { "docid": "570187", "title": "", "text": "¶ 203[4], p. 2141 (2d ed. 1948, 1982 update)). The district court did not abuse its discretion in finding this factor “unhelpful.” E. The Rule of Decision This was another “unhelpful” factor. Madonna argues that “the presence of state law issues supports abstention” where there are also other factors favoring abstention. Its argument does not correctly state the law: although “the presence of federal-law issues must always be a major consideration weighing against surrender,” the “presence of state-law issues may weigh in favor of that surrender” only “in some rare circumstances.” Cone, 460 U.S. at 26, 103 S.Ct. at 942. Since this case involves routine issues of state law— misrepresentation, breach of fiduciary duty, and breach of contract—which the district court is fully capable of deciding, there are no such “rare circumstances” here. F. Inadequacy of the State Court Proceedings to Protect the Federal Litigant’s Rights The district court also found this factor “unhelpful.” Madonna argues that while “the state court is an adequate forum for the resolution of all the issues raised by the parties,” “[tjhe federal forum, on the other hand, is an inadequate forum; due to its limited jurisdiction, it is incapable of providing the parties with an economical and comprehensive resolution of this matter.” In stating that the federal forum is inadequate, Madonna does not correctly apply this factor. This factor involves the state court’s adequacy to protect federal rights, not the federal court’s adequacy to protect state rights. See Cone, 460 U.S. at 26, 103 S.Ct. at 942. In addition, it appears that this Circuit has not applied this factor against the exercise of federal jurisdiction, only in favor of it. The Second Circuit, however, has stated that “the possibility that the state court proceeding might adequately protect the interests of the parties is not enough to justify the district court’s deference to the state action. This factor, like choice of law, is more important when it weighs in favor of federal jurisdiction.” Bethlehem Contracting Co. v. Lehrer/McGovern, Inc., 800 F.2d 325, 328 (2d Cir.1986). Thus, this factor is of little or no weight here;" }, { "docid": "17442246", "title": "", "text": "the parties have exchanged discovery demands. However, according to Defendants, Defendants have served their written discovery requests upon Plaintiff but Plaintiff has not served written discovery, nor has it answered Defendants’ requests to do so. Four days after the filing of the federal action, on August 16, 2011, Bardonia Plaza and seven entities not included in the federal action commenced the state action. On October 6, 2011, Dalzell asserted counterclaims against the state action plaintiffs for breach of contract. On May 17, 2012, the parties requested a stay of discovery until a decision was rendered on the instant motion. However, the Court is unable to confirm whether the parties’ request to stay discovery was granted. Moreover, according to the parties, discovery in the state action has been limited to the exchange of written discovery and depositions have not been conducted. Upon review of the actions, the federal and state proceedings seem to be in a holding pattern pending the resolution of the instant motion and the progress of the two actions is substantially equal. Accordingly, this factor is neutral. See generally Estee Lauder Cos. Inc. v. Batra, 430 F.Supp.2d 158, 168 (S.D.N.Y.2006). v. Law Supplying the Rule of Decision The fifth Colorado River factor requires a review of what law — state, federal, or foreign — provides the rule of decision in the case. See Moses H. Cone, 460 U.S. at 23, 103 S.Ct. 927. “When the applicable substantive law is federal, abstention is disfavored,” and, in fact, even “the absence of federal issues does not strongly advise dismissal, unless the state law issues are novel or particularly complex.” Vill. of Westfield, 170 F.3d at 123-24 (internal quotation marks omitted). Further, “the Supreme Court has explained that although in some rare circumstances the presence of state-law issues may weigh in favor of a federal- court’s surrender of its jurisdiction, the presence of federal-law issues must always be a major consideration weighing against surrender.” Niagara Mohawk Power Corp., 673 F.3d at 103 (quoting Moses H. Cone, 460 U.S. at 26, 103 S.Ct. 927) (internal quotation marks omitted). Here, Plaintiffs claims arise" }, { "docid": "3323606", "title": "", "text": "code recognizes that it is required to charge sewer rates which are “consistent with Environmental Protection Agency rules, regulations and the provisions of any grants made to the village.” The FWPCA and EPA regulations form the basis and background under which the sewer agreement and the grant agreements must be analyzed. Abstention is therefore disfavored. See DeCisneros, 871 F.2d at 308. (6) Whether the state court proceeding will adequately protect the rights of the party seeking to invoke federal jurisdiction In analyzing the sixth factor in the special circumstances test, federal courts are to determine whether the “parallel state-court litigation will be an adequate vehicle for the complete and prompt resolution of the issues between the parties.” Moses H. Cone Mem’l Hosp., 460 U.S. at 28, 103 S.Ct. 927. The Supreme Court has stated that “[i]f there is any substantial doubt as to this, it would be a serious abuse of discretion to grant the stay or dismissal at all.” Id. This factor is “more important when it weighs in favor of federal jurisdiction.” Bethlehem Contracting, 800 F.2d at 328. The district court was well aware of the slow pace of the state court proceeding. Based on the record before it, the district court had no discretion to assume that the state court was an adequate vehicle for the “prompt resolution” of the issues. Moses H. Cone Mem’l Hosp., 460 U.S. at 28, 103 S.Ct. 927. Accordingly, this factor weighs against the stay. As we stated above, our task under Colorado River is not to determine whether there is some substantial reason for the exercise of federal jurisdiction; rather, we must ascertain whether there exist exceptional circumstances that justify the surrender of federal court jurisdiction. See id. at 25-26, 103 S.Ct. 927. As our analysis of the record in the context of the six Colorado River factors shows, such circumstances do not exist in this case. The district court had no discre tion to abdicate federal jurisdiction. We therefore vacate. V. CONCLUSION As we stated recently in Dittmer, a district court’s discretion to abstain must be exercised within the “narrow" }, { "docid": "13410057", "title": "", "text": "one of those “rare circumstances” in which “the presence of state-law issues may weigh in favor” of abstention. Moses Cone Mem’l Hosp., 460 U.S. at 26, 103 S.Ct. 927; see also, Bethlehem Contracting Co. v. Lehrer/McGovern, Inc., 800 F.2d 325, 328 (2nd Cir.1986). Even Ryan, who is the party invoking federal jurisdiction, concedes that the state court proceeding would adequately protect his rights. Nonetheless, the Second Circuit has held that “the possibility that the state court proceeding might adequately protect the interests of the parties is not enough to justify the district court’s deference to the state action. This factor, like choice of law, is more important when it weighs in favor of federal jurisdiction. It is thus of little weight here.” Bethlehem Contracting Co., 800 F.2d at 328. In support of its argument in favor of abstention, Yolpone cites Westwood Inc. v. Cal Togs, Inc., 1982 U.S. Dist. Lexis 15455 (S.D.N.Y.1982), which held that the most important factor in its decision to abstain was that the major issues and the parties in both actions are identical, id. at 5, “a factor clearly present here.” (Memorandum of Law in Support of Defendant’s Cross-Motion to Dismiss and in Opposition to Plaintiffs Motion for Preliminary Injunction, p. 5). I do not consider West-wood persuasive precedent. First of all, in determining whether to abstain, the court in Westwood did not apply the factors as formulated by the Supreme Court in Colorado River and Moses H. Cone Memorial Hospital as required by the Second Circuit Court of Appeals. See Village of Westfield, 170 F.3d at 121-122. Second, the court gave no consideration to the strong preference for exercising federal jurisdiction, which should have been factored into its analysis, especially since the court seemed to conclude that the parties could obtain equivalent relief in both forums. Finally, deeming the identity of issues and parties as the most important factor in its decision is inconsistent with more recent case law. Although the existence of a parallel state action is a necessary prerequisite to this type of abstention, the establishment of such an action alone does not" }, { "docid": "3323605", "title": "", "text": "871 F.2d at 308. We also note that although the presence of federal issues strongly advises exercising federal jurisdiction, the absence of federal issues does not strongly advise dismissal, unless the state law issues are novel or particularly complex. See id. at 308-09; Bethlehem Contracting, 800 F.2d at 328. Welch’s defense to the Village’s claim for the 1995-97 user charges is that the Village’s user charge system is illegal and that the 1995-97 user charges were therefore invalid. Federal law will govern whether the user charges imposed against Welch are valid. As noted above, the user charges pertain to the operation and maintenance costs for the Water Pollution Control Plant, which was built with federal funding provided under the FWPCA. As a condition of receiving the federal funding, the Village was required to comply with the FWPCA user charge provisions contained in 33 U.S.C. § 1284(b)(1)(A). The Village was also required to obtain EPA approval of its user charge system. See 40 C.F.R. §§ 35.900, 35.929, and 35.935-13 (1998). Section 45-6(H) of the Village’s municipal code recognizes that it is required to charge sewer rates which are “consistent with Environmental Protection Agency rules, regulations and the provisions of any grants made to the village.” The FWPCA and EPA regulations form the basis and background under which the sewer agreement and the grant agreements must be analyzed. Abstention is therefore disfavored. See DeCisneros, 871 F.2d at 308. (6) Whether the state court proceeding will adequately protect the rights of the party seeking to invoke federal jurisdiction In analyzing the sixth factor in the special circumstances test, federal courts are to determine whether the “parallel state-court litigation will be an adequate vehicle for the complete and prompt resolution of the issues between the parties.” Moses H. Cone Mem’l Hosp., 460 U.S. at 28, 103 S.Ct. 927. The Supreme Court has stated that “[i]f there is any substantial doubt as to this, it would be a serious abuse of discretion to grant the stay or dismissal at all.” Id. This factor is “more important when it weighs in favor of federal jurisdiction.” Bethlehem" }, { "docid": "23639603", "title": "", "text": "all defendants, received responses thereto, and served notice of Milstein’s deposition. Given the “relative progress” of the federal action, the order in which jurisdiction was obtained is not a ground for dismissal of the action. This case is, therefore, unlike that in Telesco, where the state suit had gone through “substantial costly discovery involving a $122,000 audit of the corporation, and several interlocutory decisions.” 765 F.2d at 363. Further, the fact that federal substantive law does not govern this ease is of little weight. State law provides the rule of decision in all diversity cases, and the source-of-law factor “has more influence when a federal rule of decision is involved; only ‘in some rare circumstances [may] the presence of state law issues ... weigh in favor of ... surrender’ of federal jurisdiction.” Giardina, 733 F.2d at 1053 (quoting Cone, 460 U.S. at 26, 103 S.Ct. at 942). No such rare circumstances are present in this case. This is not a case like Telesco, 765 F.2d at 363, where the presence of a “novel state law theory” was a factor in the finding of exceptional circumstances. In contrast, Bethlehem’s breach of contract and tortious interference claims present no novel or unique issues of law. Finally, the possibility that the state court proceeding might adequately protect the interests of the parties is not enough to justify the district court’s deference to the state action. This factor, like choice of law, is more important when it weighs in favor of federal jurisdiction. It is thus of little weight here. Moreover, the premise of adequate protection in the state courts is somewhat undermined by the fact that Paul Milstein, President of Timko and a general partner of Builtland, is a defendant in the federal action but not m the state suit. We conclude that the district court abused its discretion in dismissing this action. The judgment is reversed and the case is remanded for further proceedings. . Cone rejected any distinction between a stay of federal litigation and an outright dismissal for the purposes of the exceptional circumstances test. 460 U.S. at 27-28, 103" }, { "docid": "23642597", "title": "", "text": "nearly 100 depositions, 300,000 documents); Interstate Material Corp., 847 F.2d at 1289 (by the time federal court heard motion to dismiss, state action had reached appellate court). Both the federal and Commonwealth cases involve only Commonwealth law, but this factor does not necessarily counsel in favor of dismissal. Although the presence of a federal law issue “must always be a major consideration weighing against surrender [of jurisdiction],” Moses H. Cone, 460 U.S. at 26, 103 S.Ct. at 942, the presence of state law issues weighs in favor of surrender only in “rare circumstances,” id. See American Bankers Ins. Co., 891 F.2d at 886; Evanston Ins. Co., 844 F.2d at 1193; Bethlehem Contracting Co., 800 F.2d at 328. Courts generally have agreed that rare circumstances exist only when a ease presents “complex questions of state law that would best be resolved by a state court,” American Bankers Ins. Co., 891 F.2d at 886; Noonan South, Inc. v. Volusia County, 841 F.2d 380, 382 (11th Cir.1988). See also Arkwright-Boston Mfrs. Mutual v. City of New York, 762 F.2d 205, 211 (2d Cir.1985) (case raises “serious questions of state law, which include whether a party may recover in tort for a purely economic loss, absent physical injury ... and the construction of state and municipal building, safety, and fire codes”). Cf. Giardina v. Fontana, 733 F.2d 1047, 1051 (2d Cir.1984) (“garden variety” federal diversity case applying well-settled state law principles). It is possible that “rare circumstances” weighing in favor of dismissal exist here. The law at the foundation of this case is the Puerto Rico Dealer's Act, Law 75, which prevents manufacturers from terminating dealer contracts in the absence of just cause. Although federal courts have interpreted Law 75 on numerous occasions, see, e.g., Luis Rosario, Inc. v. Amana Refrigeration, Inc., 733 F.2d 172 (1st Cir.1984); Sudouest Import Sales Corp. v. Union Carbide Corp., 732 F.2d 14 (1st Cir.1984); Pan American Computer Corp. v. Data General Corp., 652 F.2d 215 (1st Cir.1981); Morales v. Gregg Shirt Makers, 682 F.Supp. 142 (D.P.R.1988), we also have recognized the need to consult with the Commonwealth courts" }, { "docid": "570186", "title": "", "text": "D. The Order in which Jurisdiction Was Obtained The district court also considered this factor “unhelpful.” Both parties agree that it is neutral here because the two actions were filed almost simultaneously—the state court action was filed only three days prior to the federal action. At the time of the district court’s grant of the stay, there had been no substantial progress in either action. Travelers states (and Madonna does not seem to disagree) that an amended complaint in state court had not yet been filed. “[Priority should not be measured exclusively by which complaint was filed first, but rather in terms of how much progress has been made in the two actions.” Cone, 460 U.S. at 21, 103 S.Ct. at 939. “ The mere existence of a case on the state docket in no way causes a substantial waste of judicial resources nor imposes a burden on the defendant’ which would justify abstention.” Herrington v. County of Sonoma, 706 F.2d 938, 940 (9th Cir.1983) (quoting J. Moore, Moore’s Federal Practice, vol. 1A, pt. 2, ¶ 203[4], p. 2141 (2d ed. 1948, 1982 update)). The district court did not abuse its discretion in finding this factor “unhelpful.” E. The Rule of Decision This was another “unhelpful” factor. Madonna argues that “the presence of state law issues supports abstention” where there are also other factors favoring abstention. Its argument does not correctly state the law: although “the presence of federal-law issues must always be a major consideration weighing against surrender,” the “presence of state-law issues may weigh in favor of that surrender” only “in some rare circumstances.” Cone, 460 U.S. at 26, 103 S.Ct. at 942. Since this case involves routine issues of state law— misrepresentation, breach of fiduciary duty, and breach of contract—which the district court is fully capable of deciding, there are no such “rare circumstances” here. F. Inadequacy of the State Court Proceedings to Protect the Federal Litigant’s Rights The district court also found this factor “unhelpful.” Madonna argues that while “the state court is an adequate forum for the resolution of all the issues raised by the" }, { "docid": "17442247", "title": "", "text": "this factor is neutral. See generally Estee Lauder Cos. Inc. v. Batra, 430 F.Supp.2d 158, 168 (S.D.N.Y.2006). v. Law Supplying the Rule of Decision The fifth Colorado River factor requires a review of what law — state, federal, or foreign — provides the rule of decision in the case. See Moses H. Cone, 460 U.S. at 23, 103 S.Ct. 927. “When the applicable substantive law is federal, abstention is disfavored,” and, in fact, even “the absence of federal issues does not strongly advise dismissal, unless the state law issues are novel or particularly complex.” Vill. of Westfield, 170 F.3d at 123-24 (internal quotation marks omitted). Further, “the Supreme Court has explained that although in some rare circumstances the presence of state-law issues may weigh in favor of a federal- court’s surrender of its jurisdiction, the presence of federal-law issues must always be a major consideration weighing against surrender.” Niagara Mohawk Power Corp., 673 F.3d at 103 (quoting Moses H. Cone, 460 U.S. at 26, 103 S.Ct. 927) (internal quotation marks omitted). Here, Plaintiffs claims arise under both federal (the CFAA claim) and state law. Further, Plaintiffs state law claims — trespass to chattel, trespass to land, conversion, destruction and loss of business, wrongful eviction under RPAPL § 853, and failure to provide requisite notice to terminate a license under RPAPL § 713 — are not particularly novel or complex. Accordingly, this factor weighs against abstention. Kshel Realty Corp. v. City of New York, 01 Civ. 9039(LMM), 2003 WL 21146650, at *6 (S.D.N.Y. May 16, 2003) (finding that abstention was not warranted where “federal law will provide the rule of decision for two issues.”). vi. Adequate Protection of Plaintiffs Rights When reviewing the sixth Colorado River factor, a federal court must determine “whether the ‘parallel state-court litigation will be an adequate vehicle for the complete and prompt resolution of the issues between the parties.’ ” Vill. of Westfield, 170 F.3d at 124 (quoting Moses, 460 U.S. at 28, 103 S.Ct. 927). “If there is any substantial doubt as to this, it would be a serious abuse of discretion to grant the" }, { "docid": "23498552", "title": "", "text": "law governs the issue of whether the arbitration clause was fraudulently induced. However, the Supreme Court has made clear that the fact that a case presents state-law issues, by itself, will usually not present the kind of “exceptional circumstances” required for abstention. Id. at 25, 103 S.Ct. 927 (quotation omitted). “Although in some rare circumstances the presence of state-law issues may weigh in favor of ... surrender, the presence of federal-law issues must always be a major consideration weighing against surrender.” Id. at 26, 103 S.Ct. 927 (footnote omitted). In addition, although state law may dictate the standards for generally applicable contract defenses, such as fraudulent inducement, the FAA governs the enforceability of arbitration clauses generally, Doctor’s Assocs., Inc. v. Casarotto, 517 U.S. 681, 687, 116 S.Ct. 1652, 134 L.Ed.2d 902 (1996), and expresses a “liberal federal policy favoring arbitration agreements” that must be taken into account even when state-law issues are presented. Moses H. Cone, 460 U.S. at 24, 103 S.Ct. 927. The instant case therefore presents a mix of federal — and state-law issues. Consequently, the presence of state-law issues does not weigh heavily in favor of abstention. The Simonses’ further attempts to distinguish their case are unavailing. They contend that Great Earth’s rights would be adequately protected by state-court proceedings, because state courts are bound to enforce the FAA. We have previously noted, however, that “[t]he fact that the state court will protect [the defendant’s] rights under the FAA ... does not provide the ‘exceptional’ circumstances necessary to justify” abstention. Cohen, 276 F.3d at 209. The Simonses also contend that abstention is warranted because Great Earth’s strategy of filing petitions in multiple federal courts was “vexatious.” See Moses H. Cone, 460 U.S. at 17 n. 20, 103 S.Ct. 927 (noting that vexatious nature of litigation may be relevant to abstention, but finding it unnecessary to consider the issue). The Simonses have not shown any evidence, however, that the decision to pursue an arbitration order in federal rather than state court was vexatious, rather than merely a strategic decision to protect Great Earth’s rights. Although one may conclude" }, { "docid": "12296411", "title": "", "text": "such exceptional circumstances exist as to warrant a stay or dismissal of a federal action in favor of a concurrent state action: the assumption by either [the federal or the state] court of jurisdiction over any res or property, the inconvenience of the federal forum, the avoidance of piecemeal litigation, ... the order in which jurisdiction was obtained[,] ... whether state or federal law supplies the rule of decision, and whether the state court proceeding will adequately protect the rights of the party seeking to invoke federal jurisdiction. Bethlehem Contracting Co. v. Lehrer/McGovern Inc., 800 F.2d 325, 327 (2d Cir.1986). We have also taken note of the Court’s admonition that the decision whether to exercise jurisdiction in such circumstances “does not rest on a mechanical checklist, but on a careful balancing of the important factors as they apply in a given case, with the balance heavily weighted in favor of the exercise of jurisdiction.” Id. (quoting Cone, 460 U.S. at 16, 103 S.Ct. at 937) (emphasis added). Three of the six factors set forth in Colorado River and Cone obviously offer no support for the decision to stay Zemsky’s Section 1983 claims. First, neither the state court nor the federal court has assumed jurisdiction over any res or property relevant to this litigation. Second, because both the federal court and the state court are located in Brooklyn, the former is no less convenient to the litigants than the latter. Third, federal law rather than state law provides the rule of decision for Zemsky’s Section 1983 claims. The remaining factors identified in Colorado River and Cone are insufficient to overcome “the heavy presumption favoring the exercise of jurisdiction.” Id. First, in this case, as in Bethlehem Contracting, there is not an identity of defendants in the state and federal actions because the individual school officials are not parties to the state action. Accordingly, staying the federal action does not necessarily avoid piecemeal litigation. See id. at 328. Second, with regard to the order in which jurisdiction was obtained, the Supreme Court has emphasized that “priority should not be measured exclusively by" }, { "docid": "5620526", "title": "", "text": "is to coordinate and conform with federal law under Title VII and the ADEA. See Caballero v. Central Power and Light Co., 858 S.W.2d 359, 361 (Tex.1993). “Texas courts ‘may consider how the federal act [the Federal Civil Rights Act] is implemented under clauses similar to those at issue in the Texas act.’ ” Id. (quoting Eckerdt v. Frostex Foods, Inc., 802 S.W.2d 70, 72 (Tex.App.—Austin 1990, no writ)). Therefore, in reviewing an employment discrimination claim under the TCHRA, Texas state courts are guided by both state law and federal precedent. See Schroeder v. Texas Iron Works, 813 S.W.2d 483, 485 (Tex.1991). Federal law may be applied in the absence of state decisional law. See Elstner v. Southwestern Bell Tel. Co., 659 F.Supp. 1328, 1345 (S.D.Tex.1987), aff'd, 863 F.2d 881 (5th Cir.1988); Fogle v. Southwestern Bell Tel. Co., 800 F.Supp. 495, 498 (W.D.Tex.1992). “The presence of a federal law issue ‘must always be a major consideration weighing against surrender [of jurisdiction],’ but the presence of state law issues weighs in favor of surrender only in rare circumstances.” Evanston, 844 F.2d at 1193 (quoting Moses H. Cone, 460 U.S. at 26, 103 S.Ct. 927). Because these cases involve both federal and state rules of decision, this factor weighs against abstention. (6) The Adequacy of State Proceedings In Protecting the Rights of the Party Invoking Federal Jurisdiction The Supreme Court has declared: When a district court decides to dismiss or stay under Colorado River, it presumably concludes that the parallel state-court litigation will be an adequate vehicle for the complete and prompt resolution of the issues between the parties. If there is any substantial doubt as to this, it would be a serious abuse of discretion to grant the stay or dismissal at all. Thus, the decision to invoke Colorado River necessarily contemplates that the federal court will have nothing further to do in resolving any substantive part of the case, whether it stays or dismisses. Moses H. Cone, 460 U.S. at 28, 103 S.Ct. 927 (citations omitted). Murphy argues that although it is likely that no further resort to the federal" }, { "docid": "13410056", "title": "", "text": "3, this factor does not weigh heavily in favor of the exercise of federal jurisdiction. See Moses Cone Mem’l Hosp., 460 U.S. at 25, 103 S.Ct. 927 (source-of~law factor less significant where federal and state courts had concurrent jurisdiction to enforce the Arbitration Act). At the same time and concurrent jurisdiction notwithstanding, “the presence of federal-law issues must always be a major consideration weighing against surrender.” Id. at 26, 103 S.Ct. 927. Defendant also argues that Plaintiffs claims under New York Civil Right’s law are unusual and, therefore, best addressed by the state court. However, Volpone makes no effort to explain what makes such claims unusual nor does it cite any case law attesting to the difficulty courts encounter in adjudicating such claims. Contrary to Defendant’s assertion, I disagree that claims brought under a statute which was enacted nearly a century ago, see Allen, 610 F.Supp. at 620 (“New York legislature passed sections 50 and 51 of the Civil Rights Law in 1903”), present novel or unusual questions of state law, such that this is one of those “rare circumstances” in which “the presence of state-law issues may weigh in favor” of abstention. Moses Cone Mem’l Hosp., 460 U.S. at 26, 103 S.Ct. 927; see also, Bethlehem Contracting Co. v. Lehrer/McGovern, Inc., 800 F.2d 325, 328 (2nd Cir.1986). Even Ryan, who is the party invoking federal jurisdiction, concedes that the state court proceeding would adequately protect his rights. Nonetheless, the Second Circuit has held that “the possibility that the state court proceeding might adequately protect the interests of the parties is not enough to justify the district court’s deference to the state action. This factor, like choice of law, is more important when it weighs in favor of federal jurisdiction. It is thus of little weight here.” Bethlehem Contracting Co., 800 F.2d at 328. In support of its argument in favor of abstention, Yolpone cites Westwood Inc. v. Cal Togs, Inc., 1982 U.S. Dist. Lexis 15455 (S.D.N.Y.1982), which held that the most important factor in its decision to abstain was that the major issues and the parties in both actions" }, { "docid": "12374969", "title": "", "text": "Ins. Co. v. Matthews, 547 F.Supp. 836, 839-42 (S.D.N.Y.1982); American Motor ists Ins. Co. v. Philip Carey Corp., 482 F.Supp. 711 (S.D.N.Y.1980). As to the fourth factor, “[t]he order in which the concurrent tribunals obtained and exercised jurisdiction,” Moses H. Cone, 460 U.S. at 21, 103 S.Ct. at 939, the district court properly “attache[d] no importance to the earlier filing date of th[e New York] action.” As in Lumbermens, the limited discovery makes the claimed “considerable progress” “strictly illusory.” 806 F.2d at 415. The parties agree that the New York action involves purely state law issues. Although the absence of federal issues does not require the surrender of jurisdiction, it does favor abstention where “the bulk of the litigation would necessarily revolve around the state-law ... rights of [numerous] ... parties.” Moses H. Cone, 460 U.S. at 23 n. 29, 103 S.Ct. at 941 n. 29; see id. at 26, 103 S.Ct. at 942; Colorado River, 424 U.S. at 820, 96 S.Ct. at 1247; cf. Lumbermens, 806 F.2d at 415 (“presence of state law issues rarely weighs in favor of the surrender of federal jurisdiction”). The final factor, protecting the rights of the party seeking to invoke federal jurisdiction, also favors abstention. The New Jersey action embraces the notice and cooperation questions at issue in this action, and General Re and North Star are parties to both actions. Compare Bethlehem Contracting Co., 800 F.2d at 328 (state court cannot resolve entire controversy where a claim in federal action was not present in state action and one of the federal defendants was not in the state action). General Re and North Star argue that the New Jersey action is not likely to proceed expeditiously because it is a complex multide-fendant case and because a magistrate has recommended that the case be stayed until September 1988. In addition, they contend that many of the claims raised may not be tried together because New Jersey courts increasingly refuse to entertain claims in insurance-related judgment actions which involve hazardous waste sites outside New Jersey. See, e.g., SCM Corp. v. Lumbermens Mut. Cas. Co., No." }, { "docid": "19195600", "title": "", "text": "counsels in favor of granting the stay. See Guenveur, 551 F.Supp. at 1048. CONCLUSION After a careful balancing of the factors discussed above, I conclude that exceptional circumstances do exist which mandate an exercise of discretion to stay the federal action pending resolution of the State court actions. The Court is mindful that the task, in cases involving Colorado River abstention is “not to find some substantial reason for the exercise of federal jurisdiction ... [but] rather, the task is to ascertain whether there exist ‘exceptional’ circumstances, the ‘clearest of justifications,’ that can suffice under Colorado River to justify the surrender of that juris diction.” Moses H. Cone, 460 U.S. at 25-26, 103 S.Ct. at 942. All of the parties, except for Rohm & Haas, have affirmatively indicated a willingness to proceed in State court or, at the very least, have not opposed Plaintiffs’ motion. It appears undisputed that the issues in both actions are identical except that the Councils seek punitive damages in the State court action. The federal action has not proceeded to such a point that the granting of the stay would work hardship or be substantially unjust. Indeed, any discovery taken in this action can easily be transferred to the State court actions. The State court actions are in Delaware State court and Delaware law supplies the rule of decision. Federal interests in judicial economy and federal-state comity dictate that a stay is appropriate. Equally important, the Councils, as representatives of the condominium owners, are potentially interested parties to the action. They are present in the State court and cannot intervene in this action because of the bar imposed by the requirement of complete diversity. Hence, granting the stay will avoid piecemeal litigation. This action will be stayed pending disposition of the State court actions. . Alcan supplies metal roofing panels for the buildings. These are purchased by Alcan and shipped to Enamel for laminating with the acrylic film Korad which is used to coat the roofs. Enamel purchases Korad from Rohm & Haas and Georgia Pacific. After lamination, Alcan fabricates the sheets into roofing panels" }, { "docid": "23639602", "title": "", "text": "action. And although the disputes in both the state and federal forums stem from the Bank of America Plaza construction project, Bethlehem’s federal suit raises a cause of action in tort against Milstein that has no counterpart in the state litigation. With regard to the chronological order in which the courts obtained jurisdiction, Cone emphasized that “priority should not be measured exclusively by which complaint was filed first, but rather in terms of how much progress has been made in the two actions.” 460 U.S. at 21, 103 S.Ct. at 927. See also Illinois Bell, 740 F.2d at 570 (court should consider “relative progress” of state and federal suits in determining whether to stay federal action). To date, the relevant state court litigation has consisted of little more than the filing of the complaint. No party has answered or otherwise pleaded. There has been no formal discovery. In the present case, in contrast, defendants Gem and Polito filed an answer, a counterclaim, and a crossclaim, and submitted interrogatories to all parties. Bethlehem submitted interrogatories to all defendants, received responses thereto, and served notice of Milstein’s deposition. Given the “relative progress” of the federal action, the order in which jurisdiction was obtained is not a ground for dismissal of the action. This case is, therefore, unlike that in Telesco, where the state suit had gone through “substantial costly discovery involving a $122,000 audit of the corporation, and several interlocutory decisions.” 765 F.2d at 363. Further, the fact that federal substantive law does not govern this ease is of little weight. State law provides the rule of decision in all diversity cases, and the source-of-law factor “has more influence when a federal rule of decision is involved; only ‘in some rare circumstances [may] the presence of state law issues ... weigh in favor of ... surrender’ of federal jurisdiction.” Giardina, 733 F.2d at 1053 (quoting Cone, 460 U.S. at 26, 103 S.Ct. at 942). No such rare circumstances are present in this case. This is not a case like Telesco, 765 F.2d at 363, where the presence of a “novel state law" }, { "docid": "23498551", "title": "", "text": "at 24, 103 S.Ct. 927. In all significant respects, the circumstances presented in the instant case are the same as those considered by the Court in Moses H. Cone, and that decision should therefore control. As in Moses H. Cone, the first two factors are irrelevant, as there is no res and neither party has argued that either the federal or state forum, both in Michigan, is more convenient. Although it appears that Great Earth waited somewhat longer than nineteen days following the filing of the state-court action to initiate its petition in federal court, we are mindful of the Supreme Court’s observation that the relative progress of the proceedings is at least as important as the order of filing. Id. at 21, 103 S.Ct. 927. In the instant case, the district court has completely resolved the issue of arbitrability and ordered arbitration. In contrast, there is no indication that any significant proceedings have taken place in the state court. The Simonses argue that the instant case is distinguishable from Moses H. Cone, because state law governs the issue of whether the arbitration clause was fraudulently induced. However, the Supreme Court has made clear that the fact that a case presents state-law issues, by itself, will usually not present the kind of “exceptional circumstances” required for abstention. Id. at 25, 103 S.Ct. 927 (quotation omitted). “Although in some rare circumstances the presence of state-law issues may weigh in favor of ... surrender, the presence of federal-law issues must always be a major consideration weighing against surrender.” Id. at 26, 103 S.Ct. 927 (footnote omitted). In addition, although state law may dictate the standards for generally applicable contract defenses, such as fraudulent inducement, the FAA governs the enforceability of arbitration clauses generally, Doctor’s Assocs., Inc. v. Casarotto, 517 U.S. 681, 687, 116 S.Ct. 1652, 134 L.Ed.2d 902 (1996), and expresses a “liberal federal policy favoring arbitration agreements” that must be taken into account even when state-law issues are presented. Moses H. Cone, 460 U.S. at 24, 103 S.Ct. 927. The instant case therefore presents a mix of federal — and state-law" }, { "docid": "3323604", "title": "", "text": "extended, would require the joinder of all the parties that could be affected by a decision in favor of Welch. This would be impractical and unnecessary, in part because the Village already represents the interests of the residential and industrial users of the plant. Moreover, as the Village conceded in oral argument, not every party who could be affected by a decision in favor of Welch is in the state court. Finally, as the Village also conceded in oral argument, Mogen David may be heard as an amicus without destroying diversity jurisdiction if its interests need to be represented in the federal action. This factor therefore could not justify the district court’s stay. (5) Whether state or federal law supplies the rule of decision The fifth factor in the exceptional circumstances test is whether state or federal law provides the rule of decision on the mer its. See Moses H. Cone Mem’l Hosp., 460 U.S. at 23, 103 S.Ct. 927. We have stated that “[w]hen the applicable substantive law is federal, abstention is disfavored.” DeCisneros, 871 F.2d at 308. We also note that although the presence of federal issues strongly advises exercising federal jurisdiction, the absence of federal issues does not strongly advise dismissal, unless the state law issues are novel or particularly complex. See id. at 308-09; Bethlehem Contracting, 800 F.2d at 328. Welch’s defense to the Village’s claim for the 1995-97 user charges is that the Village’s user charge system is illegal and that the 1995-97 user charges were therefore invalid. Federal law will govern whether the user charges imposed against Welch are valid. As noted above, the user charges pertain to the operation and maintenance costs for the Water Pollution Control Plant, which was built with federal funding provided under the FWPCA. As a condition of receiving the federal funding, the Village was required to comply with the FWPCA user charge provisions contained in 33 U.S.C. § 1284(b)(1)(A). The Village was also required to obtain EPA approval of its user charge system. See 40 C.F.R. §§ 35.900, 35.929, and 35.935-13 (1998). Section 45-6(H) of the Village’s municipal" }, { "docid": "18587296", "title": "", "text": "the presence of a federal substantive interest weighs heavily in favor of the exercise of federal jurisdiction, the absence of such an interest, without more, is not a strong reason to dismiss pursuant to Colorado River. See Bethlehem Contracting, 800 F.2d at 328; National Union, 713 F.Supp. at 67. Sixth and finally, plaintiffs’ rights would be protected adequately if their claim was prosecuted in state court. However, although any possible inadequacy of the state forum to protect the federal plaintiffs rights would provide a strong reason to exercise federal jurisdiction, the adequacy of the state forum does not weigh heavily in favor of dismissal pursuant to Colorado River. See Zemsky v. City of New York, 821 F.2d 148, 153 (2d Cir.) (Winter, J.), cert. denied, 484 U.S. 965, 108 S.Ct. 456, 98 L.Ed.2d 396 (1987), reh’g denied, 486 U.S. 1019, 108 S.Ct. 1760, 100 L.Ed.2d 221 (1988); Bethlehem Contracting, 800 F.2d at 328. Balancing the foregoing considerations, and giving due “weight to the heavy presumption favoring the exercise of jurisdiction,” id. at 327, the Court finds that a dismissal pursuant to Colorado River is not warranted under the circumstances. No more can be said in favor of dismissal here than that there is underway a parallel state proceeding in which plaintiffs’ state law claims may be adequately adjudicated. However, this Court’s “task in cases such as this is not to find some substantial reason for the exercise of federal jurisdiction ...; rather, the task is to ascertain whether there exist ‘exceptional’ circumstances, the ‘clearest of justifications,’ that can suffice under Colorado River to justify the surrender of that jurisdiction.” Cone 460 U.S. at 25-26, 103 S.Ct. at 941-42. There is nothing “exceptional” about this case. Defendants’ motion for a dismissal pursuant to the Colorado River doctrine is therefore denied. CONCLUSION For the foregoing reasons, this Court hereby denies, on the present record, defendants’ motion to dismiss or stay this action pursuant to Colorado River. All parties are hereby ordered to appear before this Court on June 16, 1995, at 2:00 P.M., for a pre-trial conference in Courtroom 18b, United States" }, { "docid": "8125506", "title": "", "text": "415. Concededly, more discovery has occurred to date in the federal suit. Hence, disposition of this factor is not so clear as in Bethlehem Contracting, where the state defendants had not even answered their complaints, had engaged in no discovery, and where the state action was effectively “dormant.” See 800 F.2d at 326. The record in the instant case reveals that before granting the stay, the district court was closely involved in the discovery process, imposing deadlines and holding conferences to ensure the progress of the litigation. In analyzing this factor, it concluded that “[o]n the whole, then, no appreciably greater progress, except for the summary judgment motion [which it had denied], has been made in the federal action to warrant this factor tipping against abstention.” The district court’s perspective and proximity to the pending litigation is a major reason why the decision to abstain generally is left to that court’s sound discretion. We accept its assessment respecting the progress of discovery, and the fourth factor therefore favors abstention. The substantive law to be applied, the fifth factor, in both the federal and the state actions is exclusively New York law. When the applicable substantive law is federal, abstention is disfavored, though the inverse proposition will not alone support a surrender of federal jurisdiction. See Moses H. Cone, 460 U.S. at 26, 103 S.Ct. at 942; General Reinsurance, 853 F.2d at 82; Lumbermens, 806 F.2d at 415. Yet, if federal law is not implicated, and the governing state law involves “a novel state law theory,” a stronger argument may be made for abstention. See Telesco v. Telesco Fuel and Masons’ Materials, Inc., 765 F.2d 356, 363 (2d Cir.1985). Concededly, no such novel state law theory is present in this negligence case, and federal courts deciding diversity cases routinely apply state law. We have held nonetheless that “[although the absence of federal issues does not require the surrender of jurisdiction, it does favor abstention where ‘the bulk of the litigation would necessarily revolve around the state-law ... rights of [numerous] ... parties.’ ” General Reinsurance, 853 F.2d at 82 (quoting Moses" } ]

[ { "docid": "7846983", "title": "", "text": "the alleged damages by the Company’s “unlawful refusal to recognize and bargain with it.” I. WERE MAXWELL AND HARDY SUPERVISORS? We turn first to the question of whether or not there is substantial evidence in the record to justify the Board’s findings that Maxwell and Hardy were supervisors, since that determination affects both the scope of the § 8(a) (1) violations and also the question of whether or not a bargaining order should have issued. 29 U.S.C. § 152(11) provides as follows: “The term ‘supervisor’ means any individual having authority, in the interest of the employer, to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline other employees, or responsibly to direct them, or to adjust their grievances, or- effectively to recommend such action, if in connection with the foregoing the exercise of such authority is not of a merely routine or clerical nature, but requires the use of independent judgment.” This section of the statute, worded as it is in the disjunctive, has been consistently interpreted to mean that if any one of the enumerated indicia of supervision is present in a form which requires the exercise of independent judgment, there must be a finding that an employee so empowered is a supervisor and therefore excluded from the bargaining unit. N.L.R.B. v. Little Rock Downtowner, Inc., 414 F.2d 1084, 1089 (8th Cir. 1969); Jas. H. Matthews & Co. v. N.L.R.B., 354 F.2d 432, 434 (8th Cir. 1965), cert, denied, 384 U.S. 1002, 86 S.Ct. 1924, 16 L.Ed.2d 1015 (1966). We have carefully examined the testimony of all the witnesses and have determined that there is no evidence that either Maxwell or Hardy could effectively recommend or that they attempted to exercise any independent judgment in management decisions to hire, transfer, suspend, lay off, recall, promote, discharge, reward or discipline other employees or adjust their grievances. Evidence was offered which was calculated to show that Maxwell and Hardy did “assign” and “responsibly direct” other employees, but for reasons hereinafter set forth, we feel that this evidence is neither conclusive nor substantial and is not a sufficient basis" } ]

[ { "docid": "13547760", "title": "", "text": "or discipline employees. . The phrase “whichever last occurs” thus makes each condition, although stated in the disjunctive, a requirement for retirement eligibility. . Under Article I, Section 14B of the Pension Plan: Continuous Service as an Employee under a Collective Bargaining Agreement shall mean accumulated years of employment pri- or to retirement calculated from the employee’s last employment or re-employment date following the last break in service and excluding years of service not covered under a collective bargaining agreement. It is undisputed that Maness’ work following the 1963 agreement between the employer and the union was covered by the collective bargaining agreement. . “Employee,” as defined in the Plan, expressly excludes “a person employed in a supervisory capacity.” . Article I, Section 13 of the Plan provides in part: A Break in Service, within the meaning of the Plan, shall occur if an employee is not in covered employment for a period of five consecutive years between February 1, 1955 and April 1, 1969 or for a period of three consecutive years after April 1, 1969. . The term “supervisor” is defined by statute: The term “supervisor” means any individual having authority, in the interest of the employer, to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline other employees, or responsibly to direct them, or to adjust their grievances, or effectively to recommend such action, if in connection with the foregoing the exercise of such authority is not of a merely routine or clerical nature, but requires the use of independent judgment. 29 U.S.C. § 152(11). . This case is significantly different from the circumstances depicted in Bruñe v. Morse, 475 F.2d 858 (8th Cir. 1973), wherein the pension applicant had worked for many years as a shoe laster, a job not normally covered by Teamster agreements, before becoming a warehouseman in another company — work which was clearly in the Teamster industry. Phillips v. Unity Welfare Association, Inc., 359 F.Supp. 1147 (E.D.Mo.1973), is likewise distinguishable, for the dispute there centered again on work not traditionally in the Teamsters’ craft. Further, we are aware of" }, { "docid": "13547755", "title": "", "text": "union within the allotted 30 days. From December of 1963 to 1969, Maness continued to work at the same Aloe facility. The character of his work was essentially the same as it had been since approximately 1949. During this period (1963 — 1969), the company paid pension contributions on behalf of Maness to the Pension Fund in question for a total of 261 weeks. On January 9, 1969, Maness filed an application for benefits under the Central States, Southeast and Southwest Areas Pension Plan. Following the trustees’ rejection of the application and Maness’ exhaustion of his administrative remedies, he initiated the action from which this appeal arises. II. Under Article III, Section 1 of the Plan, “[a]n employee who has reached the NORMAL RETIREMENT DATE shall be eligible for the retirement benefit provided by this Pension Plan.” Article I, Section 15 of the Plan provides in part: Normal Retirement Date for an employee who became a member of the Plan prior to July 1, 1967 shall mean the date the employee attains his fifty-seventh birthday, or the date the employee completes twenty years of continuous service in the industry, or the date the employee completes three years of continuous service under a collective bargaining agreement, or the date on which eighty weeks contributions have been paid to the Pension Fund on behalf of the employee by the employer, whichever last occurs.[ ] There is no question under the stipulated facts that, at the time Maness filed his application for pension benefits, he was 62 years old, he had completed over five years of continuous service under a collective bargaining agreement and his employer had paid 261 weeks of contributions to the Pension Fund on his behalf. Thus, the only point in dispute is whether Maness had satisfied the provision requiring 20 years of continuous service in the industry. Article I, Section 14 of the Plan defines “continuous service in the industry as an employee” in relevant part as accumulated years of employment pri- or to retirement calculated from the employee’s last employment or re-employment date following the last break in" }, { "docid": "23585196", "title": "", "text": "Plan defines “continuous service in the industry as an employee”: Continuous Service in the Industry as an employee shall mean accumulated years of employment prior to retirement calculated from the employee’s last employment or re-employment date following the last break in service. Pension Plan, article I, section 14. The trustees determined that appellant sustained a break in service from 1955 to 1964, the time when no pension contributions were made on appellant’s behalf while they were being made on behalf of Dorwood’s other employees. Because of the break in service, appellant did not accumulate twenty years of service in the industry by the time of his retirement in 1973. Article I, section 13 of the Plan states that “[a] Break In Service, within the meaning of the Plan, shall occur if an employee is not in covered employment for a period of five consecutive years between February 1, 1955, and April 1, 1969, ...” There are two definitions of “covered employment.” Article I, section 11(A) defines covered employment prior to the “effective date” and section 11(B) defines covered employment after the “effective date.” Under article I, section 2 the “effective date” is the later of February 1,1955, or the date an employer begins contributing to the Fund on behalf of its employees. Dorwood began contributing to the Fund on April 30, 1955, so this is the applicable effective date. Thus, after April 30, 1955, employees of Dorwood were in “covered employment” only if they satisfied section 11(B). Section 11(B) defines covered employment after the effective date as “employment by an employer, as defined herein, who has satisfied the requirements for participation as established by the Trustees and who has agreed to be bound by the Trust Agreement.” One further provision of the Plan is critical in this analysis. Article I, section 12, defines “year of employment.” After the effective date a “year of employment” is a “calendar year ... in which contributions for a period of at least thirty-five weeks have been paid to the Pension Fund by the employer on behalf of the employee.” Article I, section 12(b). Under" }, { "docid": "23070594", "title": "", "text": "reward, or discipline other employees, or responsibility to direct them, or to adjust their grievances, or effectively to recommend such action, if in connection with the foregoing the exercise of such authority is not of a merely routine or clerical nature, but requires the use of independent judgment. 29 U.S.C. § 152(11). Phillips wore work clothes to work and performed manual labor on the trucks as part of his duties. The company president made the decision with respect to hiring and firing for Phillips to implement. Lead-men, or straw bosses, are not necessarily supervisors even if they give minor orders and supervise the work of others. N.L.R.B. v. Doctors Hospital of Modesto, Inc., 489 F.2d 772, 776 (9th Cir. 1973); N.L.R.B. v. Sayers Printing Co., 453 F.2d 810, 813-815 (8th Cir. 1971); Amalgamated Clothing Workers of America, AFL—CIO v. N.L.R.B., 137 U.S.App.D.C. 93, 420 F.2d 1296, 1300 (1969). We affirm. . See Brune v. Morse, 475 F.2d 858, 860 (8th Cir. 1973). . Article I, Section 13 of Central States, Southeast and Southwest Areas Pension Plan provides that: A Break in Service, * * * shall occur if an employee is not in covered employment for a period of five consecutive years between February 1, 1955 and April 1, 1969 or for a period of three consecutive years after April 1, 1969. . Article I, Section 14 of the Plan provides that: Continuous Service in the Industry as an employee shall mean accumulated years of employment prior to retirement calculated from the employee’s last employment or reemployment date following the last break in service. * * * Continuous Service as an Employee under a Collective Bargaining Agreement shall mean accumulated years of employment prior to retirement calculated from the employee’s last employment or re-employment date following the last break in service and excluding years of service not covered under a collective bargaining agreement. . The trial court alternatively held that no break in service existed by reading the continuous service requirements to mean only that an employee remain in the teamster industry, but not necessarily under a collective bargaining agreement." }, { "docid": "13547759", "title": "", "text": "1949 to 1963, we must conclude, as did the District Court, that Maness did not perform supervisory work and that his work was “in the teamsters’ industry” during both periods. These are findings of fact, see N.L.R.B. v. Griggs Equipment, Inc., 307 F.2d 275, 279 (5th Cir. 1962), which we accept as not clearly erroneous. Fed.R. Civ.P. 52(a). Requiring that such continuous service in the industry also be within a specific bargaining unit, as the trustees contend, would result in an unwarranted and arbitrary construction of the Plan. Accordingly, we uphold Judge Meredith’s determination that the trustees acted arbitrarily and capriciously and we affirm his order that the benefits, plus interest, be paid. . James H. Meredith, Chief United States District Judge for the Eastern District of Missouri. The jurisdiction of the District Court was based on 29 U.S.C. § 185. . Thus, he was no longer required to purchase work permits. . Maness did not receive overtime compensation for extra hours worked in this new capacity, nor did he have authority to hire, fire or discipline employees. . The phrase “whichever last occurs” thus makes each condition, although stated in the disjunctive, a requirement for retirement eligibility. . Under Article I, Section 14B of the Pension Plan: Continuous Service as an Employee under a Collective Bargaining Agreement shall mean accumulated years of employment pri- or to retirement calculated from the employee’s last employment or re-employment date following the last break in service and excluding years of service not covered under a collective bargaining agreement. It is undisputed that Maness’ work following the 1963 agreement between the employer and the union was covered by the collective bargaining agreement. . “Employee,” as defined in the Plan, expressly excludes “a person employed in a supervisory capacity.” . Article I, Section 13 of the Plan provides in part: A Break in Service, within the meaning of the Plan, shall occur if an employee is not in covered employment for a period of five consecutive years between February 1, 1955 and April 1, 1969 or for a period of three consecutive years after April" }, { "docid": "2609702", "title": "", "text": "two of them: leadmen Frank Colangelo and Timothy Balmes. Messrs. Colangelo and Balmes appear to have been somewhat more involved than the others in employee evaluation and discipline, and Highland insists that they had authority “effectively to recommend action” with regard to such matters. The company further maintains that leadmen Colangelo and Balmes exercised “independent judgment” in directing the activities of their team members, and that the exercise of such authority was “not of a merely routine or clerical nature.” The quoted language is important, under the governing statute. II Section § 2(11) of the National Labor Relations Act, 29 U.S.C. § 152(11), defines a supervisor as “any individual having authority, in the interest of the employer, to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline other employees, or responsibly to direct them, or to adjust their grievances, or effectively to recommend such action, if in connection with the foregoing the exercise of such authority is not of a merely routine or clerical nature, but requires the use of independent judgment.” Supervisors are not bargaining unit employees, 29 U.S.C. § 152(3), and no employer can be compelled to negotiate with representatives of a bargaining unit that includes supervisors. 29 U.S.C. § 164(a). As Judge Posner has noted, the first of the two clauses of § 2(11) gives the definition of “supervisor” an initial appearance that turns out to be deceptively broad. If it stood alone, the first clause would make “supervisors” of, among others, anyone responsible for “[supervision in the elementary sense of directing another’s work....” NLRB v. Res-Care, 705 F.2d 1461, 1465 (7th Cir.1983). The first clause does not stand alone, however, and the second clause—the portion following the “if” — imposes a significant qualification. It limits the definition of “supervisor” to people whose direction of the work of others, etc., is not “merely routine.” In adding this limitation, Congress intended to withhold § 2(11) supervisory status from “ ‘straw bosses,’ ‘leadmen,’ and other low-level employees having modest supervisory authority.” Res-Care, 705 F.2d at 1466 (quoting S.Rep. No. 105, 80th Cong., 1st Sess. 4 (1947))." }, { "docid": "23585195", "title": "", "text": "1955 to 1964 is neither arbitrary nor capricious. There is no claim that the trustees acted in bad faith. A somewhat detailed analysis is necessary to review the trustees’ interpretation of the terms of the Plan to deny benefits to appellee because he was not in the bargaining unit. In order to be eligible to receive benefits under the Plan appellant had to satisfy the following conditions: (1) he had to be at least 57 years of age; (2) at least 80 weeks of payments into the Fund must have been made on his behalf; (3) he had to have at least three years of service under a collective bargaining agreement; and (4) he had to have 20 years of continuous service in the industry as an employee. Pension Plan, article I, section 15. In the present case there is no disagreement that appellant fulfilled the first three of these requirements. The only point in dispute is whether appellant satisfied the provision requiring twenty years of continuous service in the industry as an employee. The Plan defines “continuous service in the industry as an employee”: Continuous Service in the Industry as an employee shall mean accumulated years of employment prior to retirement calculated from the employee’s last employment or re-employment date following the last break in service. Pension Plan, article I, section 14. The trustees determined that appellant sustained a break in service from 1955 to 1964, the time when no pension contributions were made on appellant’s behalf while they were being made on behalf of Dorwood’s other employees. Because of the break in service, appellant did not accumulate twenty years of service in the industry by the time of his retirement in 1973. Article I, section 13 of the Plan states that “[a] Break In Service, within the meaning of the Plan, shall occur if an employee is not in covered employment for a period of five consecutive years between February 1, 1955, and April 1, 1969, ...” There are two definitions of “covered employment.” Article I, section 11(A) defines covered employment prior to the “effective date” and section" }, { "docid": "23070593", "title": "", "text": "and capricious. The only evidence tending to support the view that Phillips was a supervisor was the union representative’s description of him as a superintendent. That general description, unsupported in the record, was largely negated by the local union’s treatment of Phillips for ten years as a nonsupervisory employee. The District Court permitted the parties to present additional evidence. We find nothing in the supplemented record which would support a decision on our part that the decision of the District Court, in the light of this new evidence, was clearly erroneous. Whether an employee is a supervisor is to be determined in light of the employee’s actual authority, responsibility and relationship to management and “[o]f course, the specific job title of the employees involved is not in itself controlling.” NLRB v. Bell Aerospace Co., 416 U.S. 267, 290 n.19, 94 S.Ct. 1757, 1769, 40 L.Ed.2d 134 (1974). Supervisor, as defined by the TaftHartley Act: means any individual having authority, in the interest of the employer, to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline other employees, or responsibility to direct them, or to adjust their grievances, or effectively to recommend such action, if in connection with the foregoing the exercise of such authority is not of a merely routine or clerical nature, but requires the use of independent judgment. 29 U.S.C. § 152(11). Phillips wore work clothes to work and performed manual labor on the trucks as part of his duties. The company president made the decision with respect to hiring and firing for Phillips to implement. Lead-men, or straw bosses, are not necessarily supervisors even if they give minor orders and supervise the work of others. N.L.R.B. v. Doctors Hospital of Modesto, Inc., 489 F.2d 772, 776 (9th Cir. 1973); N.L.R.B. v. Sayers Printing Co., 453 F.2d 810, 813-815 (8th Cir. 1971); Amalgamated Clothing Workers of America, AFL—CIO v. N.L.R.B., 137 U.S.App.D.C. 93, 420 F.2d 1296, 1300 (1969). We affirm. . See Brune v. Morse, 475 F.2d 858, 860 (8th Cir. 1973). . Article I, Section 13 of Central States, Southeast and Southwest Areas Pension" }, { "docid": "22576570", "title": "", "text": "Social Security Administration’s records showed no withholding taxes paid on behalf of Reiherzer by Cartage. . Reiherzer testified at trial that in 1968 he went to the local union’s office to inquire as to his eligibility for a disability pension and that someone at the office informed him that he had to be 54 years old to apply for a pension. The district court made no finding as to whether this incident did in fact take place. But, even if the incident did occur, it is clear that at that time, in 1968, an application for pension benefits was not submitted by Reiherzer to the Plan. . Of course, permanent disability was required for eligibility. Plan Article III, Section 4B(b). In this case there is no dispute concerning plaintiffs disability. . “Covered employment” under the Plan was defined as: (1) For any employee who became a member of the Plan prior to May 1, 1971 (a) Employment within a classification of work and in an industry which was at the time of such employment normally covered by Teamster contracts in the local metropolitan area; and/or (b) Employment in the same classification of work in which employed after the Effective Date under a Teamster contract and on which pension contributions have been made on behalf of the employee; and/or (c) Employment requiring the usual Teamster skills in traditional Teamster industries at the time of such employment . . . . . “Break in Service” meant if an employee is not in covered employment for a period of five consecutive years between February 1, 1955 and April 1, 1969 Plan, Article I, Section 13. . Article I, Section 14 defined “Continuous Service in the Industry” as accumulated years of employment prior to retirement calculated from the employee’s last employment or reemployment date following the last break in service. Any service in the industry as an employer as a member of a partnership or self-employed shall not be included as credible service for purposes of this Plan. (Emphasis in original). . Since defendants removed the case to federal court it would be anomalous" }, { "docid": "1511002", "title": "", "text": "Director, testified that the nurses had the discretion to determine whether to replace an absent CNA during a shift. . See ante n. 8. JONES, District Judge, dissenting: As the majority notes, section 2(3) of the National Labor Relations Act exempts supervisors from the definition of “employees” eligible to bargain collectively. 29 U.S.C.A. § 152(3) (West 1973). Section 2(11) defines a supervisor as: [a]ny individual having authority, in the interest of the, employer, to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline other employees, or responsibly to direct them, or to adjust their grievances, or effectively to recommend such action, if in connection ivith the foregoing the exercise of such authority is not of a merely routine or clerical nature, but requires the use of independent judgment. 29 U.S.C.A. § 152(11) (West 1973) (emphasis added). Accordingly, to qualify as a “supervisor,” an employee must satisfy three criterion: (1) the employee must actually have the authority to engage in at least one of the twelve delineated activities; (2) the authority must be exercised in the interest of the employer; and (3) exercise of the authority must involve independent judgment and not be merely routine or clerical. Here, the focus of our inquiry is whether the exercise of authority by the licensed practical nurses employed by the appellant satisfies the third criterion. Because I believe it does not, I respectfully dissent. Section 2(11) was drafted with the specific intent of differentiating between actual management and “straw bosses, lead men, and set-men, and other minor supervisory employees.” NLRB v. Bell Aerospace Co., 416 U.S. 267, 280-81, 94 S.Ct. 1757, 40 L.Ed.2d 134 (1974) (quoting Sen. Rep. No. 105, 89th Cong., 1st Sess. 4 (1947)). The Act also addresses the existence of “professional employees,” that is, employees who “engage[ ]in work ... involving the consistent exercise of discretion and judgment in its performance.” 29 U.S.C.A. § 152(12) (West 1973). Specifically, the Act recognizes that despite the fact that such employees consistently exercise discretion and judgment in performing their work, they are nevertheless to be regarded as employees, hot supervisors. Providence" }, { "docid": "22293311", "title": "", "text": "of breaks in service and the total number of years as breaks in service. Under either analysis, McKnight is entitled to credit for his years of employment prior to March, 1971. We agree with the district court’s interpretation. Whether Southern Life’s pension plan complies with ERISA is not at issue; rather, the dispute involves an interpretation and application of the plan and summary. Southern Life argues that according to Sharron v. Amalgamated Foods, 704 F.2d 562, 564 (11th Cir.1983), the plan administrator’s decision must be sustained as a matter of law unless his decision was arbitrary or capricious. Southern Life contends that because the pension fund trustee’s denial of McKnight’s benefits was sound and consistent with the plan, this decision must be sustained. The Sharron court upheld the plan administrator’s decision to deny a truck driver’s pension after twenty-five years of employment because of his subsequent break in service prior to retirement. Sharron unsuccessfully challenged the plan’s reasonableness, as opposed to the arbitrariness of the administrator’s decision. In Sharron, the plan required, among other provisions, that the employee complete fifteen years of continuous service before being entitled to receive benefits. “Continuous service” was defined as the accumulated years of employment calculated from the employee’s reemployment date following a break in service. Sharron, 704 F.2d at 565. Furthermore, the plan stated that a break in service occurred if, prior to retirement, an employee was not in covered employment for a period of three consecutive years after April 1, 1969. Because Sharron had terminated his employment with the company in 1973 for more than three years before he applied for retirement benefits, the court accepted the administrator’s determination that Sharron did not meet the pension requirements because of the duration of his break in service. Similarly, Southern Life suggests that the administrator’s decision should be upheld as reasonable and sound. We do not agree. Like the administrator in Sharron, the district court applied a literal interpretation of the relevant provisions of Southern Life’s pension plan, Article III, section (l)(d), and found that McKnight was entitled to employment credit. A subsequent analysis of" }, { "docid": "6028776", "title": "", "text": "of independent judgment. See St. Francis, 601 F.2d at 421 (coordinating rest periods and meals off was more clerical than supervisory)- Charge nurses also coordinate patient care within their units. Providence argues the Board erred in finding that this coordination does not constitute responsible direction in the exercise of the charge nurses’ independent judgment. To decide whether the charge nurses’ coordination activities rise to the level of responsible direction requiring the exercise of independent judgment, we consider whether the charge nurses are “above the grade of ‘straw bosses, lead men, set-up men, and other minor supervisory employees,’ ” such that “[tjheir essential managerial duties are best defined by the words ‘direct responsibility’.” 93 Cong. Rec. 4678 (May 7, 1947) (testimony of Senator Flanders). “The lead-man or straw boss may give minor orders or directives ... but he is not necessarily ... a ‘supervisor’ within the [NLRA].” NLRB v. Doctor’s Hosp. of Modesto, 489 F.2d 772, 776 (9th Cir.1973). The test to determine if an employee responsibly directs others is applied “with respect to the fundamental twin principles that a supervisor represents the interests of his employer vis-a-vis other employees and is not ‘one of the gang who merely gives routine instructions.’ ” Meredith Corp. v. NLRB, 679 F.2d 1332, 1337 (10th Cir.1982) (quoting and citing Goldies, Inc. v. NLRB, 628 F.2d 706, 709 (1st Cir.1980)). An employee responsibly directs others when the employee is “answerable” to the employer for other employees’ “discharge of a duty or obligation.” Arizona Public Service Co. v. NLRB, 453 F.2d 228, 231 (9th Cir.1971) (quoting NLRB v. Fullerton Publishing Co., 283 F.2d 545, 549 (9th Cir.1960)); see also Meredith, 679 F.2d at 1337 (“in directing other employees, a person is a supervisor only if he directs qua employer or qua representative of the employer, such as a foreman might do.”); cf. Beverly California Corp. v. NLRB, 970 F.2d 1548, 1550 (6th Cir.1992) (RN supervisor found to be a supervisor under the NLRA because she “was ultimately responsible for nursing care in [her] units, and the evidence showed that she was expected to oversee the work" }, { "docid": "22342762", "title": "", "text": "employees who became members of the Plan prior to July 1, 1967, such as Wardle if his contentions are accepted, as the date on which all of four specified requirements are met. The only requirement that Central States has contended Wardle has not met is that of “twenty years of continuous service in the industry.” . A break in service occurred when an employee was not in “covered employment” for five consecutive years between February 1, 1955 and April 1, 1969 or for three consecutive years after April 1, 1969. Pension Plan, Art. I, Sec. 13. Although extremely complex, the definition of covered employment may for present purposes be summarized as “[e]mployment requiring the usual Teamster skills in traditional Teamster industries at the time of such employment.” Art. I, Sec. 11-A(1)(C). . The letter indicated that the relevant definition was to be found in Article I, Section 11-A of the pension agreement. . The letter also informed Wardle of his right to appeal the decision to the Pension Payment Appeals Committee. . The Eighth and Ninth Circuits have applied this standard of review in similar cases based on § 301 of the Labor-Management Relations Act. Maness v. Williams, 513 F.2d 1264, 1265 & n.1 (8th Cir. 1975); Rehmar v. Smith, 555 F.2d 1362, 1366-67, 1369-71 (9th Cir. 1976). . Some cases, tried on stipulated or undisputed facts before the district court, have not expressly faced this issue. See, e. g., Bayles v. Central States Pension Fund, 602 F.2d 97, 98 (5th Cir. 1979); Reiherzer v. Shannon, 581 F.2d 1266, 1268 (7th Cir. 1978); Maness v. Williams, 513 F.2d 1264, 1265 (8th Cir. 1975). Both parties before us appear to agree that we should review Central States’ decision only in light of facts before its Committee at the time. Yet additional evidence was presented to the district court on the issue of Wardle’s status with Purcell and Lovelace, and both parties argue that this evidence supports their respective contentions on the question of eligibility. . See Carter v. Central States Pension Fund, No. 77-2078 (D.Kan. Nov. 1, 1978); Mendise v. Central" }, { "docid": "22576564", "title": "", "text": "least 1951 on, he was not a member of the collective bargaining agreement and he suffered a “break in service” under Article I, Section 13 of the Plan. We cannot agree that this new contention put forth by defendants, not relied on by the trustees in ruling on Reiherzer’s application, bars plaintiff’s eligibility for a disability pension, as stated previously, the Plan requires 15 years continuous service in the teamster industry by an individual in order to achieve eligibility for a disability pension. However, there is nothing in the Plan that requires that these 15 years be under the terms of a collective bargaining agreement. Rather, there is a separate requirement that an individual to be eligible for a pension must have 3 years of continuous service “under a collective bargaining agreement”. Maness v. Williams, 513 F.2d 1264, 1267 (8th Cir. 1975) (interpreting the same plan in issue in this case). A “break in service” only occurs when an individual is out of “covered employment” for five consecutive years between 1955 and 1969, and “covered employment” includes, “Employment requiring the usual Teamster skills in traditional Teamster industries . .” Plan, Article I, Section llA(l)(c). While it is true that Reiherzer was a supervisor, there is no dispute that at all relevant times he was a union member doing work in an industry (driving truck) requiring “the usual Teamster skills.” Moreover, although in 1964 the trustees modified the Plan to exclude service while “self-employed” from being counted as “continuous service in the industry,” no such explicit exclusion was made for time spent by an employee in a supervisory capacity. Nevertheless, although we find that the Plan does not exclude Reiherzer’s time employed as a supervisor from being counted in calculating his 15 years “continuous service in the industry,” defendants still contend that under the Labor-Management Relations Act § 302(c)(5) it would be illegal for them to pay pension benefits to a supervisor. This agreement is premised on the definition of “employee” found in the Act which states, The term “employee” shall include any employee . . . but shall not include" }, { "docid": "22576571", "title": "", "text": "covered by Teamster contracts in the local metropolitan area; and/or (b) Employment in the same classification of work in which employed after the Effective Date under a Teamster contract and on which pension contributions have been made on behalf of the employee; and/or (c) Employment requiring the usual Teamster skills in traditional Teamster industries at the time of such employment . . . . . “Break in Service” meant if an employee is not in covered employment for a period of five consecutive years between February 1, 1955 and April 1, 1969 Plan, Article I, Section 13. . Article I, Section 14 defined “Continuous Service in the Industry” as accumulated years of employment prior to retirement calculated from the employee’s last employment or reemployment date following the last break in service. Any service in the industry as an employer as a member of a partnership or self-employed shall not be included as credible service for purposes of this Plan. (Emphasis in original). . Since defendants removed the case to federal court it would be anomalous for them to challenge this court’s jurisdiction. Moreover, since plaintiff has prevailed in the trial court, one would not expect him to raise jurisdictional problems. . This court cannot agree with the district court in Finn v. Chicago Newspaper Publishers’ Assoc.-Drivers Union Pension Plan, 432 F.Supp. 1178 (N.D.I11.1977), that because Johnson held section 302(e) did not confer jurisdiction on the federal courts on claims challenging mere denials of pension benefits, section 301 likewise cannot confer such jurisdiction. Id. at 1179. While it may be true that section 301 is not such a jurisdictional grant, such a conclusion need not follow from the rejection of section 302 as a jurisdictional authorization. . In so holding, the Court rejected Justice Frankfurter’s position in Association of Westinghouse Salaried Employees v. Westinghouse Electric Corp., 348 U.S. 437, 75 S.Ct. 489, 99 L.Ed. 510 (1955), that section 301 did not create a “federal common law” applicable to violations of collective bargaining agreements. Moreover, in rejecting Justice Frankfurter’s position, the Court avoided the constitutional problem he raised concerning Congress’ power to" }, { "docid": "13547761", "title": "", "text": "1, 1969. . The term “supervisor” is defined by statute: The term “supervisor” means any individual having authority, in the interest of the employer, to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline other employees, or responsibly to direct them, or to adjust their grievances, or effectively to recommend such action, if in connection with the foregoing the exercise of such authority is not of a merely routine or clerical nature, but requires the use of independent judgment. 29 U.S.C. § 152(11). . This case is significantly different from the circumstances depicted in Bruñe v. Morse, 475 F.2d 858 (8th Cir. 1973), wherein the pension applicant had worked for many years as a shoe laster, a job not normally covered by Teamster agreements, before becoming a warehouseman in another company — work which was clearly in the Teamster industry. Phillips v. Unity Welfare Association, Inc., 359 F.Supp. 1147 (E.D.Mo.1973), is likewise distinguishable, for the dispute there centered again on work not traditionally in the Teamsters’ craft. Further, we are aware of no long-standing interpretation of the Plan and related documents to the effect that Maness’ work lay outside the traditional Teamster crafts. Cf. Miracle v. United Mine Workers of America, Welfare and Retirement Fund of 1950, 373 F.Supp. 603 (D.D.C.1974)." }, { "docid": "6028775", "title": "", "text": "of law when it concluded that charge nurses who ask other employees to work overtime do not exercise independent judgment. We disagree. We have found no Ninth Circuit or Supreme Court precedent supporting this argument. This is not surprising. In asking an RN to work overtime, a charge nurse does nothing more than attempt to find someone to fill a slot for necessary overtime work. Performing that job function does not involve independent judgment. Charge nurses also decide whether to approve or disapprove employees’ breaks. We agree with the Board that the charge nurses’ break approval responsibility is merely routine in nature. A charge nurse’s decision to authorize breaks involves, at least partially, the routine task of ensuring that all of the RNs in a unit do not take their breaks at the same time. The record indicates, moreover, that charge nurses often rely on the discretion of staff RNs to ask for breaks only at appropriate times. We conclude the charge nurses’ ability to approve or disapprove RN breaks does not require the exercise of independent judgment. See St. Francis, 601 F.2d at 421 (coordinating rest periods and meals off was more clerical than supervisory)- Charge nurses also coordinate patient care within their units. Providence argues the Board erred in finding that this coordination does not constitute responsible direction in the exercise of the charge nurses’ independent judgment. To decide whether the charge nurses’ coordination activities rise to the level of responsible direction requiring the exercise of independent judgment, we consider whether the charge nurses are “above the grade of ‘straw bosses, lead men, set-up men, and other minor supervisory employees,’ ” such that “[tjheir essential managerial duties are best defined by the words ‘direct responsibility’.” 93 Cong. Rec. 4678 (May 7, 1947) (testimony of Senator Flanders). “The lead-man or straw boss may give minor orders or directives ... but he is not necessarily ... a ‘supervisor’ within the [NLRA].” NLRB v. Doctor’s Hosp. of Modesto, 489 F.2d 772, 776 (9th Cir.1973). The test to determine if an employee responsibly directs others is applied “with respect to the fundamental" }, { "docid": "22342761", "title": "", "text": "judges. In addition to indicating the traditional nature of Wardle’s cause of action, the limited scope of review bespeaks a legislative scheme granting initial discretionary decisionmaking to bodies other than the federal courts, with which federal jury trials have proved incompatible. See Curtis v. Loether, 415 U.S. 189, 194-95, 94 S.Ct. 1005, 1008-09, 39 L.Ed.2d 260 (1974). This incompatibility is further evidence of the unlikelihood of any implied congressional intent to grant a jury right in these cases. We therefore conclude that ERISA does not grant Wardle a right to a jury trial. For all the foregoing reasons, the decision of the district court is affirmed. . Wardle continued to drive for Lovelace Truck Service and its successor, Commercial Lovelace Motor Freight, Inc., until 1978. . Article III, Section 1 of the Plan, which concerned the payment of benefits, provided that “An employee who has reached the NORMAL RETIREMENT DATE shall be eligible for the retirement benefit provided for by this Pension Plan.” (Capitalization in original.) Article I, Section 15 defined Normal Retirement Date for employees who became members of the Plan prior to July 1, 1967, such as Wardle if his contentions are accepted, as the date on which all of four specified requirements are met. The only requirement that Central States has contended Wardle has not met is that of “twenty years of continuous service in the industry.” . A break in service occurred when an employee was not in “covered employment” for five consecutive years between February 1, 1955 and April 1, 1969 or for three consecutive years after April 1, 1969. Pension Plan, Art. I, Sec. 13. Although extremely complex, the definition of covered employment may for present purposes be summarized as “[e]mployment requiring the usual Teamster skills in traditional Teamster industries at the time of such employment.” Art. I, Sec. 11-A(1)(C). . The letter indicated that the relevant definition was to be found in Article I, Section 11-A of the pension agreement. . The letter also informed Wardle of his right to appeal the decision to the Pension Payment Appeals Committee. . The Eighth and" }, { "docid": "7807308", "title": "", "text": "bears the burden of proving supervisory status. Hearnsberger v. Gillespie, 435 F.2d 926, 929 (8th Cir.1970). In determining supervisory status under the Act, the statutory definition rather than the ordinary, common-sense definition of the word controls. Section 2(11) of the Act provides: The term “supervisor” means any individual having authority, in the interest of the employer, to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline other employees, or responsibly to direct them, or to adjust their grievances, or effectively to recommend such action, if in connection with the foregoing the exercise of such authority is not of a merely routine or clerical nature, but requires the use of independent judgment. 29 U.S.C. § 152(11) (1988). This statutory definition has two components. First, the individual must have the authority to accomplish one of the enumerated functions. This requirement is read in the disjunctive. Therefore, an individual’s ability to exercise any one of the listed powers justifies the finding of supervisory status. NLRB v. Chem Fab Corp., 691 F.2d 1252, 1256 (8th Cir.1982). Second, the exercise of the individual’s authority must require the use of independent judgment and be of more than a routine or clerical nature. Therefore, so-called “straw bosses” are not necessarily supervisors even if they give minor orders or supervise the work of others. Phillips v. Kennedy, 542 F.2d 52, 56 (8th Cir.1976). The Board concluded Jennings was not a supervisor because he exercised independent judgment only sporadically. The Board found that the store manager retained all significant authority and gave Jennings no authority beyond that of a routine nature. For instance, the Board concluded that Jennings did not participate in managerial meetings, that his supervision mainly consisted of implementing the orders of daytime managers, and that he spent thirty to forty percent of his time on manual duties. Finally, the Board found that the company treated Jennings as a non-supervisor in all other respects under the bargaining agreement, and that although he was called a “manager,” several employees had that title but were not considered supervisors. Whether an employee is a supervisor is a" }, { "docid": "23070595", "title": "", "text": "Plan provides that: A Break in Service, * * * shall occur if an employee is not in covered employment for a period of five consecutive years between February 1, 1955 and April 1, 1969 or for a period of three consecutive years after April 1, 1969. . Article I, Section 14 of the Plan provides that: Continuous Service in the Industry as an employee shall mean accumulated years of employment prior to retirement calculated from the employee’s last employment or reemployment date following the last break in service. * * * Continuous Service as an Employee under a Collective Bargaining Agreement shall mean accumulated years of employment prior to retirement calculated from the employee’s last employment or re-employment date following the last break in service and excluding years of service not covered under a collective bargaining agreement. . The trial court alternatively held that no break in service existed by reading the continuous service requirements to mean only that an employee remain in the teamster industry, but not necessarily under a collective bargaining agreement. We find it unnecessary to reach this issue and specifically disclaim any ruling upon it. . The District Court felt it was improper to base its decision upon arguments as to Phillips’ alleged supervisory status because it was never cited by the trustees as a reason for denial of benefits. We disagree. In our judgment, the denial was based upon a determination that Phillips was a supervisory employee even if the trustees did not explicitly so state. There is no other possible basis under the Plan for the denial. . See n.2, infra. . Even if a break in service occurred after this date, the requirements with respect to the duration and rate of employer contributions would also be satisfied. By February, 1966, contributions had been made on behalf of Phillips by his employer at the rate of $7.00 per week for two years with contributions at $8.00 per week thereafter. . We are urged to decide this case on the basis of an estoppel allegedly created by the acceptance of payments made to the" } ]

[ { "docid": "22828636", "title": "", "text": "of particular issues. This inquiry involves both constitutional limitations on federal-court jurisdiction and prudential limitations on its exercise.” Worth v. Seldin, 422 U.S. 490, 498, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975). The plaintiff bears the burden of establishing such standing. See, e.g., Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992) (constitutional standing); Premium Mortgage Corp. v. Equifax, Inc., 583 F.3d 103, 108 (2d Cir.2009) (prudential standing). We review de novo a decision as to a plaintiffs standing to sue based on the allegations of the complaint and the undisputed facts evidenced in the record. See, e.g., Rent Stabilization Ass’n v. Dinkins, 5 F.3d at 594. “[I]f the court also resolved disputed facts” in ruling on standing, “we will accept the court’s findings unless they are ‘clearly erroneous.’ ” Id. For the reasons that follow, we conclude that plaintiffs established neither constitutional nor prudential standing to pursue the claims they asserted. A. Constitutional Standing The “irreducible constitutional minimum of standing” under Article III of the Constitution includes the requirement that “the plaintiff must have suffered an injury in fact ... which is (a) concrete and particularized, ... and (b) actual or imminent, not conjectural or hypothetical.” Lujan v. Defenders of Wildlife, 504 U.S. at 560, 112 S.Ct. 2130 (internal quotation marks omitted). The record in this case reveals that plaintiffs’ Third Amended Complaint alleged only injuries that were hypothetical. The chronology of the events alleged helps to make this clear. Plaintiffs alleged that their loan and mortgage transactions with First Franklin took place in 2005 or 2006 (see Third Amended Complaint ¶¶ 2-8); that “Defendants claim[ed] and assert[ed] that payments [wejre due to them monthly” (id. ¶ 119); and that, for the loans taken out by plaintiffs and the members of the class they seek to represent, “Defendant Trusts have received or collected payments since January 1, 2004” (id. ¶ 81). Plaintiffs asserted that they “[wejre suffering damages with each and every payment to Defendants,” on the theory that defendants “[wejre not proper parties to receive and collect such payments.” (Id. ¶" } ]

[ { "docid": "20591626", "title": "", "text": "J.A. Vol. I at 36:2-13. . Sinochem Int’l Co. v. Malay. Int’l Shipping Corp., 549 U.S. 422, 430-31, 127 S.Ct. 1184, 167 L.Ed.2d 15 (2007). . Steele v. Blackman, 236 F.3d 130, 134 n. 4 (3d Cir.2001). . Pub. Interest Research Grp. of N.J., Inc. v. Magnesium Elektron, Inc., 123 F.3d 111, 117 (3d Cir.1997). . Neale v. Volvo Cars of N. Am., LLC, 794 F.3d 353, 358-59 (3d Cir.2015) (internal quotation marks omitted and punctuatiop modified) (quoting Susan B. Anthony List v. Driehaus, - U.S. -, 134 S.Ct. 2334, 2341, 189 L.Ed.2d 246 (2014)). . Blunt v. Lower Merion Sch. Dist., 767 F.3d 247, 278 (3d Cir.2014) (citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992)), cert. denied, — U.S. -, 135 S.Ct. 1738, 191 L.Ed.2d 702 (2015). . N.J. Physicians, Inc. v. President of the United States, 653 F.3d 234, 238 (3d Cir.2011) (quoting City of Los Angeles v. Lyons, 461 U.S. 95, 102, 103 S.Ct. 1660, 75 L.Ed.2d 675 (1983), and Whitmore v. Arkansas, 495 U.S. 149, 155, 110 S.Ct. 1717, 109 L.Ed.2d 135 (1990)). . Defenders of Wildlife, 504 U.S. at 560 n. 1, 112 S.Ct. 2130. . Constitution Party of Pa. v. Aichele, 757 F.3d 347, 364 (3d Cir.2014) (quoting Clapper v. Amnesty Int’l USA, - U.S. -, 133 S.Ct. 1138, 1148, 185 L.Ed.2d 264 (2013)). . Toll Bros., Inc. v. Twp. of Readington, 555 F.3d 131, 137-38 (3d Cir.2009) (quoting Defenders of Wildlife, 504 U.S. at 560, 112 S.Ct. 2130). . Edmonson v. Lincoln Nat’l Life Ins. Co., 725 F.3d 406, 418 (3d Cir.2013) (citing The Pitt News v. Fisher, 215 F.3d 354, 360-61 (3d Cir.2000)). . Toll Bros., 555 F.3d at 142 (quoting Vt. Agency of Natural Res. v. United States ex rel. Stevens, 529 U.S. 765, 771, 120 S.Ct. 1858, 146 L.Ed.2d 836 (2000)). . Defenders of Wildlife, 504 U.S. at 561, 112 S.Ct. 2130 (internal quotation marks omitted). . Berg v. Obama, 586 F.3d 234, 238 (3d Cir.2009). . Defenders of Wildlife, 504 U.S. at 561, 112 S.Ct. 2130. . In re Schering" }, { "docid": "20507672", "title": "", "text": "FDA, 664 F.3d 940, 943 (D.C.Cir.2012) (internal quotation marks omitted). The “irreducible constitutional minimum of [Article III] standing,” Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992), requires that a plaintiff “show (1) it has suffered an ‘injury in fact’ that is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical; (2) the injury is fairly traceable to the challenged action of the defendant; and (3) it is likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision.” Friends of the Earth, Inc. v. Laidlaw Envtl. Servs., Inc., 528 U.S. 167, 180-81, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000) (citing Lujan, 504 U.S. at 560-61, 112 S.Ct. 2130). Although plaintiffs must prove separate standing as to each agency action challenged, see Am. Trucking Ass’ns v. Fed. Motor Carrier Safety Admin., 724 F.3d 243, 248 (D.C.Cir.2013), “only one plaintiff must have standing” for each claim to survive. In re Navy Chaplaincy, 697 F.3d 1171, 1178 (D.C.Cir.2012); accord Grocery Mfrs. Ass’n v. EPA, 693 F.3d 169, 175 (D.C.Cir.2012). Because plaintiffs are trade associations and do not assert standing “on their own behalf,” Havens Realty Corp. v. Coleman, 455 U.S. 363, 378-79 & n. 19, 102 S.Ct. 1114, 71 L.Ed.2d 214 (1982), they must satisfy the standard for associational standing established in Hunt v. Washington State Apple Advertising Commission, 432 U.S. 333, 97 S.Ct. 2434, 53 L.Ed.2d 383 (1977). Under Hunt, an association has Article III standing “ ‘only if (1) at feast one of its members would have standing to sue in his own right; (2) the interest it seeks to protect is germane to its purpose; and (3) neither the claim asserted nor the relief requested requires the member to participate in the lawsuit.’ ” Am. Trucking Ass’ns, 724 F.3d at 247 (quoting Rainbow/PUSH Coalition v. FCC, 330 F.3d 539, 542 (D.C.Cir.2003)); accord Nat’l Ass’n of Home Builders v. EPA, 667 F.3d 6, 12 (D.C.Cir.2011). Plaintiffs bear the burden of specifically identifying at least one “member [who] had or would suffer harm” from each" }, { "docid": "21519720", "title": "", "text": "Consumers Legal Remedies Act. See id. . See In re Google Inc. Cookie Placement Consumer Privacy Litig., 988 F.Supp.2d 434 (D. Del. 2013). . Google, 806 F.3d at 153. . Finkelman, 810 F.3d at 193 (quoting Neale v. Volvo Cars of N. Am., LLC, 794 F.3d 353, 358-59 (3d Cir. 2015) (internal quotation marks omitted and punctuation modified)). . Id. (quoting Blunt v. Lower Merion Sch. Dist., 767 F.3d 247, 278 (3d Cir. 2014)). . Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 n. 1, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). . Spokeo, Inc. v. Robins, -U.S. -, 136 S.Ct. 1540, 1548, 194 L.Ed.2d 635 (2016). . Google, 806 F.3d at 134. . Id. (quoting Havens Realty Corp. v. Coleman, 455 U.S. 363, 373, 102 S.Ct. 1114, 71 L.Ed.2d 214 (1982)). . See, e.g., Sterk v. Redbox Automated Retail, LLC, 770 F.3d 618, 623 (7th Cir. 2014) (\"By alleging that Redbox disclosed their personal information in violation of the [Video Privacy Protection Act], [plaintiffs] have met their burden of demonstrating that they suffered an injury in fact that success in this suit would redress.\"). . -U.S.-, 136 S.Ct. 1540, 194 L.Ed.2d 635. . See Robins v. Spokeo, Inc., 742 F.3d 409, 413 (9th Cir. 2014). . Supreme Court, No. 13-1339, Question Presented, http ://www.supremecourt.gov/qp/ 13-01339qp.pdf (last visited June 14, 2016). . Spokeo, 136 S.Ct. at 1550 (\"Because the Ninth Circuit failed to fully appreciate the distinction between concreteness and particularization, its standing analysis was incomplete.”). . Id. at 1549. . Id. (alteration in original) (quoting Lujan, 504 U.S. at 578, 112 S.Ct. 2130). . Id. at 1549-50 (citing Fed. Election Comm’n v. Akins, 524 U.S. 11, 118 S.Ct. 1777, 141 L.Ed.2d 10 (1998), and Pub. Citizen v. Dep’t of Justice, 491 U.S. 440, 109 S.Ct. 2558, 105 L.Ed.2d 377 (1989)). . Id. at 1550. . Id. . Id. at 1549. . See Google, 806 F.3d at 134 & n. 19 (citing Doe v. Chao, 540 U.S. 614, 641, 124 S.Ct. 1204, 157 L.Ed.2d 1122 (2004) (Ginsburg, J., dissenting) (discussing standing under the Privacy Act of 1974)). . Id." }, { "docid": "19625040", "title": "", "text": "to pursue its claims.\" Cibolo Waste, Inc. v. City of San Antonio , 718 F.3d 469, 473 (5th Cir. 2013). Standing doctrine is rooted in the Constitution's grant of judicial power to adjudicate cases or controversies. \"The doctrine developed in our case law to ensure that federal courts do not exceed their authority as it has been traditionally understood.\" Spokeo, Inc. v. Robins , --- U.S. ----, 136 S.Ct. 1540, 1547, 194 L.Ed.2d 635 (2016). \"The doctrine of standing asks 'whether the litigant is entitled to have the court decide the merits of the dispute or of particular issues.' \" Cibolo Waste , 718 F.3d at 473 (quoting Elk Grove Unified Sch. Dist. v. Newdow , 542 U.S. 1, 11, 124 S.Ct. 2301, 159 L.Ed.2d 98 (2004) ). Standing has both constitutional and prudential components. See id. (quoting Elk Grove , 542 U.S. at 11, 124 S.Ct. 2301 ) (stating standing \"contain[s] two strands: Article III standing ... and prudential standing\"). The \"irreducible constitutional minimum\" of Article III standing consists of three elements. Spokeo , 136 S.Ct. at 1547 ; Lujan v. Defenders of Wildlife , 504 U.S. 555, 560, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). The plaintiff must have (1) suffered an injury in fact (2) that is fairly traceable to the challenged conduct of the defendant and (3) that is likely to be redressed by a favorable decision. Lujan , 504 U.S. at 560-61, 112 S.Ct. 2130. It is not necessary for all plaintiffs to demonstrate Article III standing. Rather, \"one party with standing is sufficient to satisfy Article III's case-or-controversy requirement.\" Texas v. United States , 809 F.3d 134, 151 (5th Cir. 2015) (quoting Rumsfeld v. Forum for Academic & Institutional Rights, Inc. , 547 U.S. 47, 52 n.2, 126 S.Ct. 1297, 164 L.Ed.2d 156 (2006) ). \"Prudential standing requirements exist in addition to 'the immutable requirements of Article III,' ... as an integral part of 'judicial self-government.' \" ACORN v. Fowler , 178 F.3d 350, 362 (5th Cir. 1999) (quoting Lujan , 504 U.S. at 560, 112 S.Ct. 2130 ). \"The goal of this self-governance" }, { "docid": "4926623", "title": "", "text": "all factual allegations as true, construe the complaint in the light most favorable to [Appellants], and determine whether, under any reasonable reading of the complaint, [Appellants] may be entitled to relief.” Byers v. Intuit, Inc., 600 F.3d 286, 291 (3d Cir.2010) (quoting Grammer v. John J. Kane Reg’l Ctrs.-Glen Hazel, 570 F.3d 520, 523 (3d Cir.2009)). Nonetheless, “a complaint must ... ‘state a claim ... that is plausible on its face.’ ” Ashcroft v. Iqbal, — U.S. -, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). The District Court concluded that Appellants lacked Article III standing. See Kerchner v. Obama, 669 F.Supp.2d 477, 479 (D.N.J.2009). We agree. It is axiomatic that standing to sue is a prerequisite to Article III jurisdiction. Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 180-81, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000). This constitutional mandate requires that Appellants show, inter alia, an “injury in fact.” Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). “An ‘injury in fact’ is ‘an invasion of a legally protected interest which is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical.’ ” Berg v. Obama, 586 F.3d 234, 239 (3d Cir.2009) (quoting Lujan, 504 U.S. at 560, 112 S.Ct. 2130). The appeal in Berg presented us with a claim similar to the one here, in which the plaintiff challenged President-elect Obama’s eligibility to run for and serve as President. The district court in that case dismissed the suit on standing grounds because “the alleged harm to voters like [the Plaintiff] stemming from [Obama’s] failure to satisfy the eligibility requirements of the Natural Bom Citizen Clause is not concrete or particularized enough to satisfy Article III standing____” Id. at 238 (quotation, citation and original internal brackets and ellipses omitted). This court affirmed the order dismissing the suit, agreeing that “a candidate’s ineligibility under the Natural Born Citizen Clause does not result in an injury in fact" }, { "docid": "18063433", "title": "", "text": "not cited, and the city attorney assured her that she would not be charged with flag abuse. As for Mr. Winsness, “the charges against him were dismissed well before the actual trial took place.” Order Granting Defendants’ Motion to Dismiss 8, App. 175. The court based its decision on the principle that “ ‘assurances from prosecutors that they do not intend to bring charges are sufficient to defeat standing, even when the .individual plaintiff had actually been charged or directly threatened with prosecution for the same conduct in the past.’ ” Id. (quoting D.L.S. v. Utah, 374 F.3d 971, 975 (10th Cir.2004)). II. ANALYSIS As the Supreme Court has recently noted, “[i]n every federal case, the party bringing the suit must establish standing to prosecute the action.” Elk Grove Unified Sch. Dist. v. Newdow, 542 U.S. 1, 11, 124 S.Ct. 2301, 159 L.Ed.2d 98 (2004). The case or controversy requirement of Article III limits federal jurisdiction to cases in which the plaintiff can demonstrate that “(1) he or she has suffered an injury in fact; (2) there is a causal connection between the injury and the conduct complained of; and (3) it is likely that the injury will be redressed by a favorable decision.” Phelps v. Hamilton, 122 F.3d 1309, 1326 (10th Cir.1997) (citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992)). The plaintiffs injury, moreover, must be “actual or imminent, not conjectural or hypothetical.” Lujan, 504 U.S. at 560, 112 S.Ct. 2130 (internal quotation marks omitted). The mere presence on the statute books of an unconstitutional statute, in the absence of enforcement or credible threat of enforcement, does not entitle anyone to sue, even if they allege an inhibiting effect on constitutionally protected conduct prohibited by the statute. D.L.S., 374 F.3d at 975. This does not necessarily mean that a statute must be enforced against the plaintiff before he can sue. Ward v. Utah, 321 F.3d 1263, 1267 (10th Cir.2003). When he can show that he faces a “credible threat of prosecution,” a plaintiff can sue for prospective relief against enforcement." }, { "docid": "20591627", "title": "", "text": "495 U.S. 149, 155, 110 S.Ct. 1717, 109 L.Ed.2d 135 (1990)). . Defenders of Wildlife, 504 U.S. at 560 n. 1, 112 S.Ct. 2130. . Constitution Party of Pa. v. Aichele, 757 F.3d 347, 364 (3d Cir.2014) (quoting Clapper v. Amnesty Int’l USA, - U.S. -, 133 S.Ct. 1138, 1148, 185 L.Ed.2d 264 (2013)). . Toll Bros., Inc. v. Twp. of Readington, 555 F.3d 131, 137-38 (3d Cir.2009) (quoting Defenders of Wildlife, 504 U.S. at 560, 112 S.Ct. 2130). . Edmonson v. Lincoln Nat’l Life Ins. Co., 725 F.3d 406, 418 (3d Cir.2013) (citing The Pitt News v. Fisher, 215 F.3d 354, 360-61 (3d Cir.2000)). . Toll Bros., 555 F.3d at 142 (quoting Vt. Agency of Natural Res. v. United States ex rel. Stevens, 529 U.S. 765, 771, 120 S.Ct. 1858, 146 L.Ed.2d 836 (2000)). . Defenders of Wildlife, 504 U.S. at 561, 112 S.Ct. 2130 (internal quotation marks omitted). . Berg v. Obama, 586 F.3d 234, 238 (3d Cir.2009). . Defenders of Wildlife, 504 U.S. at 561, 112 S.Ct. 2130. . In re Schering Plough Corp. Intron/Temodar Consumer Class Action, 678 F.3d 235, 243 (3d Cir.2012). . Id. (quoting Santiago v. Warminster Twp., 629 F.3d 121, 130 (3d Cir.2010)). . Id. . Id. . Ashcroft v. Iqbal, 556 U.S. 662, 678-79, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (discussing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). . Amidax Trading Grp. v. S.W.I.F.T. SCRL, 671 F.3d 140, 145 (2d Cir.2011). . Schering Plough, 678 F.3d at 248 (rejecting the sufficiency of an allegation that rested on “pure conjecture”). Some of our sister circuits have questioned how well the \"plausibility” standard of Iqbal and Twombly maps onto standing doctrine. See, e.g., Maya v. Centex Corp., 658 F.3d 1060, 1068 (9th Cir.2011) (“We simply note that Twombly and Iqbal deal with a fundamentally different issue, and that the court's focus should be on the jurisprudence that deals with constitutional standing.”); Ross v. Bank of Am., N.A. (USA), 524 F.3d 217, 225 (2d Cir.2008) (\"However, plausibility is not at issue at this point, as we" }, { "docid": "22241642", "title": "", "text": "X. . Printz v. United States, 521 U.S. 898, 935, 117 S.Ct. 2365, 138 L.Ed.2d 914 (1997). . 42 U.S.C. § 16925(a). . See South Dakota v. Dole, 483 U.S. 203, 210-11, 107 S.Ct. 2793, 97 L.Ed.2d 171 (1987) (holding that Congress constitutionally exercised its spending power in conditioning federal highway funding on a minimum state drinking age). . Petition for Writ of Certiorari at i, Reynolds v. United States, No. 10-6549, 2010 WL 5624498 (U.S. filed. Sept. 14, 2010), appeal from 380 Fed.Appx. 125 (3d Cir.2010), cert, granted 79 U.S.L.W. 3248 (2011). . See, e.g., United States v. Lopez-Velasquez, 526 F.3d 804, 808 n. 1 (5th Cir.2008). . See Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992) (describing the \"irreducible constitutional minimum of standing” as consisting of injury in fact, causation, and redressability). . Id. at 573 n. 7, 112 S.Ct. 2130. . Id. . Save Our Heritage, Inc. v. Fed. Aviation Admin., 269 F.3d 49, 56 (1st Cir.2001) (\"A reasonable claim of minimal impact is enough for standing even though it may not trigger agency obligations.”); see Richard J. Pierce, Jr., Making Sense of Procedural Injury, Admin. L.Rev., Winter 2010, at 1, 11 (noting that \"courts invariably hold that a party has standing attributable to a procedural injury when it alleges that it was unlawfully deprived of the notice-and-comment rulemaking procedure” but those same courts also \"routinely apply the harmless error rule” to agency APA failures). . Lujan, 504 Ü.S. at 560, 112 S.Ct. 2130. . See United States v. Hacker, 565 F.3d 522, 528 (8th Cir.2009) (finding that appellant challenging SORNA did not have standing to challenge the registration rules on APA grounds because he was not personally affected by the rules). . United States v. Valverde, 628 F.3d 1159, 1161 (9th Cir.2010); United States v. Hatcher, 560 F.3d 222, 226-29 (4th Cir.2009); United States v. Cain, 583 F.3d 408, 414-19 (6th Cir.2009); United States v. Dixon, 551 F.3d 578, 582 (7th Cir.2008), rev'd on other grounds, - U.S. -, 130 S.Ct. 2229, 176 L.Ed.2d 1152 (2010); United States" }, { "docid": "9902744", "title": "", "text": "district court and REMAND with instructions to dismiss the complaint. . 41 U.S.C. § 351(a)(1). . 29 C.F.R. § 4.1a(c). .22 C.F.R. § 22.1006. . See Emery Worldwide Airlines, Inc. v. United States, 264 F.3d 1071, 1074 (Fed.Cir.2001)(discussing the FedEx contract). . See Diamond v. Charles, 476 U.S. 54, 68, 106 S.Ct. 1697, 90 L.Ed.2d 48 (1986). . Sierra Club v. Babbitt, 995 F.2d 571, 574 (5th Cir. 1993). . Id. at 575. . See 31 NMB 103; 31 NMB No. 25; 2004 WL 40365; 2004 NMB Ltr. LEXIS 1. . See, e.g., United States v. Herrera-Ochoa, 245 F.3d 495, 501 (5th Cir.2001)(quoting Fed. R.Evid. § 201(b))(Internal quotation marks omitted)(''Judicial notice may be taken of any fact not subject to reasonable dispute in that it is either (1) generally known within the territorial jurisdiction of the trial court or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned.”) . See, e.g., Supreme Beef Processors, Inc. v. USDA, 275 F.3d 432, 437 n. 14 (5th Cir.2001) (quoting Central and South West Services, Inc. v. EPA, 220 F.3d 683, 698 (5th Cir.2000))(\"An association has standing to bring a suit on behalf of its members when: (1) its members would otherwise have standing to sue in their own right; (2) the interests it seeks to protect are germane to the organization's purpose; and (3) neither the claim asserted nor the relief requested requires the participation of individual members.”) . Ruiz v. Estelle, 161 F.3d 814, 832 (5th Cir.1998)(holding that where a valid Article III case or controversy exists, the court’s jurisdiction vests and the presence of additional parties who could not, individually, satisfy Article III does not destroy jurisdiction). . Public Citizen, Inc. v. Bomer, 274 F.3d 212, 217 (5th Cir.2001)(quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992)). . Lujan, 504 U.S. at 560, 112 S.Ct. 2130. . Bauer v. Texas, 341 F.3d 352, 357-58 (5th Cir.2003). . Id. at 571-72 n. 5, 112 S.Ct. 2130. . The record indicates that Kitty Hawk’s largest contract, WNET-99-01," }, { "docid": "9902745", "title": "", "text": "and South West Services, Inc. v. EPA, 220 F.3d 683, 698 (5th Cir.2000))(\"An association has standing to bring a suit on behalf of its members when: (1) its members would otherwise have standing to sue in their own right; (2) the interests it seeks to protect are germane to the organization's purpose; and (3) neither the claim asserted nor the relief requested requires the participation of individual members.”) . Ruiz v. Estelle, 161 F.3d 814, 832 (5th Cir.1998)(holding that where a valid Article III case or controversy exists, the court’s jurisdiction vests and the presence of additional parties who could not, individually, satisfy Article III does not destroy jurisdiction). . Public Citizen, Inc. v. Bomer, 274 F.3d 212, 217 (5th Cir.2001)(quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992)). . Lujan, 504 U.S. at 560, 112 S.Ct. 2130. . Bauer v. Texas, 341 F.3d 352, 357-58 (5th Cir.2003). . Id. at 571-72 n. 5, 112 S.Ct. 2130. . The record indicates that Kitty Hawk’s largest contract, WNET-99-01, was terminated on August 21, 2001 and that its other contracts were either completed or terminated by that date. . See 22 C.F.R. § 22.1006. . In its 1996 letter ruling, the WHD concluded that the methodology used to calculate the prevailing wage rate for WNET and ANET contracts, which included the consideration of the wages paid to pilots by major airlines, was inappropriate for \"smaller short term contracts.” Thus, the WHD issued a separate — much lower — prevailing wage for \"other small limited service contracts, including the Postal Service’s CNET ... contracts.” Point-to-point and ASYS contracts are smaller limited service contracts and, therefore, are likely subject to the lower prevailing wage determination. The disputed wage determination itself, as opposed to the letter ruling, however, excludes only CNET contracts. Thus, it is unclear from the record which prevailing wage determination is applicable to point-to-point and ASYS contracts. . Lujan, 504 U.S. at 561, 112 S.Ct. 2130 (emphasis added). . Carr v. Alta Verde Indus., Inc., 931 F.2d 1055, 1061 (5th Cir. 1991); See also" }, { "docid": "8447335", "title": "", "text": ". VIP of Berlin, LLC v. Town of Berlin, 593 F.3d 179, 186 (2d Cir.2010) (quoting Hill v. Colorado, 530 U.S. 703, 732, 120 S.Ct. 2480, 147 L.Ed.2d 597 (2000)). . Id. at 191 (internal quotation marks and alteration omitted). . Id. at 187; see Keepers, 944 F.Supp.2d at 151. . Keepers, 944 F.Supp.2d at 158. . See VIP of Berlin, 593 F.3d at 192. . Keepers, 944 F.Supp.2d at 158-59. . Id. at 158. . See VIP of Berlin, 593 F.3d at 191. . Courts may consider prudential standing, constitutional standing, and mootness in any order. See Arizonans for Official English v. Arizona, 520 U.S. 43, 66, 117 S.Ct. 1055, 137 L.Ed.2d 170 (1997); Hillside Metro Assocs., LLC v. JPMorgan Chase Bank, Nat'l Ass’n, 747 F.3d 44, 48 (2d Cir.2014), cert, denied, - U.S. -, 135 S.Ct. 1399, 191 L.Ed.2d 360 (2015). . U.S. Const, art. Ill, § 2 (\"The judicial Power [of the United States] shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority; — to all Cases affecting Ambassadors, other public Ministers and Consuls; — to all Cases of admiralty and maritime Jurisdiction; — to Controversies to which the United States shall be a Party; — to Controversies between two or more States;— between a State and Citizens of another State,. — between Citizens of different States, — ■ between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.”); see Clapper v. Amnesty Int’l USA, - U.S. -, 133 S.Ct. 1138, 1146, 185 L.Ed.2d 264 (2013). .Clapper, 133 S.Ct. at 1146 (internal quotation marks omitted). . Hedges v. Obama, 724 F.3d 170, 188 (2d Cir.2013) (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992)). . Selevan v. N.Y. Thruway Auth., 584 F.3d 82, 91 (2d Cir.2009) (quoting Elk Grove Unified Sch. Dist. v. Newdow, 542 U.S. 1, 11, 124 S.Ct. 2301," }, { "docid": "21519719", "title": "", "text": "Video Privacy claim against Viacom. Id. . In re Nickelodeon Consumer Privacy Litig., No. 12-cv-7829 (SRC), 2015 WL 248334, at *7 (D.N.J. Jan. 20, 2015) (\"Nickelodeon II’’). . This is a diversity suit brought by plaintiffs under the Class Action Fairness Act and various provisions of federal law. See 28 U.S.C. §§ 1332(d)(2), 1331. The District Court exercised supplemental jurisdiction over plaintiffs' state-law claims under 28 U.S.C. § 1367. The District Court entered an order dismissing the case on January 20, 2015, and the plaintiffs filed a timely notice of appeal. (App. Vol. I at 1, 58.) This Court has appellate jurisdiction over the final order of the District Court under 28 U.S.C. § 1291. . Finkelman v. Nat’l Football League, 810 F.3d 187, 192 (3d Cir. 2016). . Google, 806 F.3d at 133. . Id. at 132. . Id. at 133. . The Google plaintiffs brought other statutory claims not relevant to this case, including claims for alleged violations of California's Unfair Competition Law, its Comprehensive Computer Data Access and Fraud Act, and its Consumers Legal Remedies Act. See id. . See In re Google Inc. Cookie Placement Consumer Privacy Litig., 988 F.Supp.2d 434 (D. Del. 2013). . Google, 806 F.3d at 153. . Finkelman, 810 F.3d at 193 (quoting Neale v. Volvo Cars of N. Am., LLC, 794 F.3d 353, 358-59 (3d Cir. 2015) (internal quotation marks omitted and punctuation modified)). . Id. (quoting Blunt v. Lower Merion Sch. Dist., 767 F.3d 247, 278 (3d Cir. 2014)). . Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 n. 1, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). . Spokeo, Inc. v. Robins, -U.S. -, 136 S.Ct. 1540, 1548, 194 L.Ed.2d 635 (2016). . Google, 806 F.3d at 134. . Id. (quoting Havens Realty Corp. v. Coleman, 455 U.S. 363, 373, 102 S.Ct. 1114, 71 L.Ed.2d 214 (1982)). . See, e.g., Sterk v. Redbox Automated Retail, LLC, 770 F.3d 618, 623 (7th Cir. 2014) (\"By alleging that Redbox disclosed their personal information in violation of the [Video Privacy Protection Act], [plaintiffs] have met their burden of demonstrating that they suffered" }, { "docid": "22527359", "title": "", "text": "to sue, see Lujan v. Defs. of Wildlife , 504 U.S. 555, 560, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). Because it is a plaintiff's burden to demonstrate that the court has subject-matter jurisdiction over her claims, \"[e]very plaintiff in federal court bears the burden of establishing the three elements that make up the 'irreducible constitutional minimum' of Article III standing: injury-in-fact, causation, and redressability.\" Dominguez v. UAL Corp. , 666 F.3d 1359, 1362 (D.C. Cir. 2012) (quoting Defs. of Wildlife , 504 U.S. at 560-61, 112 S.Ct. 2130 ); see also Dist. No. 1, Pac. Coast Dist., Marine Eng'rs' Beneficial Ass'n, AFL-CIO v. Liberty Mar. Corp. , 70 F.Supp.3d 327, 340 (D.D.C. 2014) (\"[T]he plaintiff bears the burden of establishing the existence of jurisdiction by a preponderance of the evidence.\"). Courts consider motions to dismiss a complaint for lack of standing pursuant to Federal Rule of Civil Procedure 12(b)(1). See, e.g., Am. Freedom Law Ctr. v. Obama , 821 F.3d 44, 48 (D.C. Cir. 2016). When evaluating whether or not a plaintiff has established the three elements of standing, courts must be mindful of the stage of the litigation, because \"each element must be supported in the same way as any other matter on which the plaintiff bears the burden of proof, i.e. , with the manner and degree of evidence required at the successive stages of the litigation.\" Defs. of Wildlife , 504 U.S. at 561, 112 S.Ct. 2130 (citation omitted); accord Food & Water Watch, Inc. v. Vilsack , 808 F.3d 905, 912-13 (D.C. Cir. 2015). Thus, at the pleading stage, \"a complaint must state a plausible claim\" that the elements of standing are satisfied, Humane Soc'y of U.S. v. Vilsack , 797 F.3d 4, 8 (D.C. Cir. 2015) (citations omitted), and when deciding whether or not a plaintiff's assertion of standing is plausible, \"the court must accept as true all of the factual allegations in the complaint and draw all reasonable inferences in favor of the plaintiff,\" Cal. Clinical Lab. Ass'n v. Sec'y of Health & Human Servs. , 104 F.Supp.3d 66, 74 (D.D.C. 2015). However," }, { "docid": "20591625", "title": "", "text": "38:23-39:3. . Mat 39:19-22. . Id. at 39:22-25. . Id. at 36:9-13. . Id. at 40:15-18. On appeal, Finkelman asserts that this scenario is impossible because the NFL requires lottery winners to pick up their tickets in person. (Appellants’ Br. at 17 & n.8.) . J.A. Vol. I at 35:21-23. . Id. at 41:8-11. . Id. at 41:12-16. . 28 U.S.C. § 1332(d)(2)(A). . Of course, notwithstanding the presence of statutory appellate jurisdiction, our conclusion that the named plaintiffs lack Article III standing means that we do not have subject matter jurisdiction to reach the merits of plaintiffs’ claims. See, e.g., Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 101-02, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998) (“For a court to pronounce upon the meaning or the constitutionality of a state or federal law when it has no jurisdiction to do so is, by very definition, for a court to act ultra vires.”). . J.A. Vol. I at 1-2. . Brown v. Card Serv. Ctr., 464 F.3d 450, 452 (3d Cir.2006). . J.A. Vol. I at 36:2-13. . Sinochem Int’l Co. v. Malay. Int’l Shipping Corp., 549 U.S. 422, 430-31, 127 S.Ct. 1184, 167 L.Ed.2d 15 (2007). . Steele v. Blackman, 236 F.3d 130, 134 n. 4 (3d Cir.2001). . Pub. Interest Research Grp. of N.J., Inc. v. Magnesium Elektron, Inc., 123 F.3d 111, 117 (3d Cir.1997). . Neale v. Volvo Cars of N. Am., LLC, 794 F.3d 353, 358-59 (3d Cir.2015) (internal quotation marks omitted and punctuatiop modified) (quoting Susan B. Anthony List v. Driehaus, - U.S. -, 134 S.Ct. 2334, 2341, 189 L.Ed.2d 246 (2014)). . Blunt v. Lower Merion Sch. Dist., 767 F.3d 247, 278 (3d Cir.2014) (citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992)), cert. denied, — U.S. -, 135 S.Ct. 1738, 191 L.Ed.2d 702 (2015). . N.J. Physicians, Inc. v. President of the United States, 653 F.3d 234, 238 (3d Cir.2011) (quoting City of Los Angeles v. Lyons, 461 U.S. 95, 102, 103 S.Ct. 1660, 75 L.Ed.2d 675 (1983), and Whitmore v. Arkansas," }, { "docid": "20522580", "title": "", "text": "(USCIS): • With respect to individuals who meet the above criteria, ICE and CBP should immediately exercise their discretion, on an individual basis, in order to prevent low priority individuals from being placed into removal proceedings or removed from the United States. . Id. at 3. . Choice Inc. v. Greenstein, 691 F.3d 710, 714 (5th Cir.2012). . Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 102, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998). . Choice Inc., 691 F.3d at 714. . Ramming v. United States, 281 F.3d 158, 161 (5th Cir.2001) (citing Williamson v. Tucker, 645 F.2d 404, 413 (5th Cir.1981)). . Wolcott v. Sebelius, 635 F.3d 757, 762 (5th Cir.2011) (citing Ramming, 281 F.3d at 161) (citations omitted). . Choice Inc., 691 F.3d at 714 (quoting Williamson, 645 F.2d at 413). . U.S. Const., art. III, § 2. . Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). . Clapper v. Amnesty Int’l USA, - U.S. -, 133 S.Ct. 1138, 1146, 185 L.Ed.2d 264 (2013). . Id. at 1147 (alteration in original). . Susan B. Anthony List v. Driehaus, - U.S. -, 134 S.Ct. 2334, 2341, 189 L.Ed.2d 246 (2014) (quoting Lujan, 504 U.S. at 560-61, 112 S.Ct. 2130 (internal quotation marks omitted)) (alteration in original). . Susan B. Anthony List, 134 S.Ct. at 2341 (quoting Lujan, 504 U.S. at 560, 112 S.Ct. 2130). . Clapper, 133 S.Ct. at 1147 (citing Lujan, 504 U.S. at 565, n. 2, 112 S.Ct. 2130 (internal quotation marks omitted)). . Id. (quoting Whitmore v. Arkansas, 495 U.S. 149, 158, 110 S.Ct. 1717, 109 L.Ed.2d 135 (1990) (internal quotation marks omitted)) (emphasis in original). See also Lujan, 504 U.S. at 565 n. 2, 112 S.Ct. 2130. . Mississippi has referred to additional evidence it apparently developed while the case was on appeal that it did not present to the district court. We may not consider this evidence. . Cf., Wyoming v. United States DOI, 674 F.3d 1220, 1232 (10th Cir.2012) (\"Petitioners provide no evidence of the general fund actually decreasing, nor have they" }, { "docid": "8447336", "title": "", "text": "States, and Treaties made, or which shall be made, under their Authority; — to all Cases affecting Ambassadors, other public Ministers and Consuls; — to all Cases of admiralty and maritime Jurisdiction; — to Controversies to which the United States shall be a Party; — to Controversies between two or more States;— between a State and Citizens of another State,. — between Citizens of different States, — ■ between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.”); see Clapper v. Amnesty Int’l USA, - U.S. -, 133 S.Ct. 1138, 1146, 185 L.Ed.2d 264 (2013). .Clapper, 133 S.Ct. at 1146 (internal quotation marks omitted). . Hedges v. Obama, 724 F.3d 170, 188 (2d Cir.2013) (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992)). . Selevan v. N.Y. Thruway Auth., 584 F.3d 82, 91 (2d Cir.2009) (quoting Elk Grove Unified Sch. Dist. v. Newdow, 542 U.S. 1, 11, 124 S.Ct. 2301, 159 L.Ed.2d 98 (2004), abrogated on other grounds by Lexmark Int’l, Inc. v. Static Control Components, Inc., - U.S. -, 134 S.Ct. 1377, 188 L.Ed.2d 392 (2014)). . Elk Grove, 542 U.S. at 12, 124 S.Ct. 2301 (internal quotation marks omitted). . See Lujan, 504 U.S. at 561, 112 S.Ct. 2130; Rajamin v. Deutsche Bank Nat’l Tr. Co., 757 F.3d 79, 84 (2d Cir.2014). . Cent. States Se. & Sw. Areas Health & Welfare Fund v. Merck-Medco Managed Care, L.L.C., 433 F.3d 181, 198 (2d Cir.2005). . Lerner v. Fleet Bank, N.A., 318 F.3d 113, 126 (2d Cir.2003). . Keepers, 944 F.Supp.2d at 172 (emphasis supplied). . Id. at 151 (emphasis supplied) (internal quotation marks omitted). . See Citizens United v. Fed. Election Comm'n, 558 U.S. 310, 366-67, 130 S.Ct. 876, 175 L.Ed.2d 753 (2010) (describing a corporation’s challenge to a disclosure requirement). . Keepers Br. Summ. J., Doc. 51, at 61 (emphasis supplied). . Keepers Reply Br. 8 (emphasis supplied) . Id. . Id. at 10. . Id. at 11 (emphasis supplied); cf. Keepers," }, { "docid": "9931254", "title": "", "text": "id. at 563, 127 S.Ct. 1955. A plaintiff must allege “enough facts to state a claim to relief that is plausible on its face.” Id. at 570, 127 S.Ct. 1955. If a plaintiff “ha[s] not nudged [his] claims across the line from conceivable to plausible, [his] complaint must be dismissed.” Id.; see also Ashcroft v. Iqbal, — U.S. —, 129 S.Ct. 1937, 1950, 173 L.Ed.2d 868 (2009) (“Determining whether a complaint states a plausible claim for relief will ... be a context-specific task that requires the reviewing court to draw on its judicial experience and common sense. But where the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged— but it has not ‘show[n]’ — ‘that the pleader is entitled to relief.’ ” (internal citation omitted) (quoting Fed.R.Civ.P. 8(a)(2)) (alteration in original)). B. Standing To satisfy Article Ill’s standing requirements, Plaintiffs must show that (1) they have “suffered an injury in fact that is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical; (2) the injury is fairly traceable to the challenged action of the defendant; and (3) it is likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision.” Pac. Capital Bank, N.A. v. Connecticut, 542 F.3d 341, 350 (2d Cir.2008) (quoting Friends of the Earth, Inc. v. Laidlaw Envtl. Servs., Inc., 528 U.S. 167, 180-81, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000)); see also Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992); W.R. Huff Asset Mgmt. Co. v. Deloitte & Touche LLP, 549 F.3d 100, 106-07 (2d Cir.2008), cert. denied, — U.S. —, 129 S.Ct. 2011, 173 L.Ed.2d 1088 (2009). It is the burden of the party invoking federal jurisdiction to establish these three elements. See Lujan, 504 U.S. at 561, 112 S.Ct. 2130. However, “at the pleading stage, standing allegations need not be crafted with precise detail.” Baur v. Veneman, 352 F.3d 625, 631 (2d Cir.2003) (citing Lujan, 504 U.S. at 561, 112 S.Ct. 2130). 1. Injury in" }, { "docid": "1876190", "title": "", "text": "2140, 40 L.Ed.2d 732 (1974) (holding that class certification cannot involve inquiry into the merits). . See Lujan v. Defenders of Wildlife, 504 U.S. 555, 559-61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). . Christoff v. Bergeron Indus., Inc., 748 F.2d 297, 298 (5th Cir.1984) (duty to determine subject matter jurisdiction); see also Warth v. Seldin, 422 U.S. 490, 502, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975) (\"Unless [the class representatives] can thus demonstrate the requisite case or controversy between themselves personally and respondents, 'none may seek relief on behalf of himself or any other member of the class.’ ”). . Brown v. Sibley, 650 F.2d 760, 771 (5th Cir. Unit A 1981). . The Eleventh Circuit has recently reached this same conclusion. See Carter v. West Publishing Co., 225 F.3d 1258, 1262 (11th Cir.2000). This circuit recently considered standing in an interlocutory appeal from a class certification, although under a different procedural posture. See Washington v. CSC Credit Servs. Inc., 199 F.3d 263, 265-68 (5th Cir.2000), cert. denied, 530 U.S. 1261, 120 S.Ct. 2718, 147 L.Ed.2d 983 (2000). The appeal in Washington was brought under 28 U.S.C. § 1292(b), not Rule 23(f), so it was not limited to issues of class certification. Id. at 265; see also Washington v. CSC Credit Servs., Inc., 180 F.R.D. 309 (E.D.La.1998) (certifying for appeal \"all issues fairly presented” in the court’s order). . 504 U.S. 555, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). . Id. at 560-61, 112 S.Ct. 2130. . Causation and redressability are easily met by the plaintiffs’ allegations and evidence that the defendants’ actions caused their loss of seniority, and that the relief sought would remedy the harm. Also, this case does not implicate any of the prudential limitations on standing. See Allen v. Wright, 468 U.S. 737, 751, 104 S.Ct. 3315, 82 L.Ed.2d 556 (1984) (describing prudential limits on standing). . See Defenders of Wildlife, 504 U.S. at 562-63, 112 S.Ct. 2130. . See id. at 563, 112 S.Ct. 2130. . In addition, of course, to the possibility that plaintiffs' bidding for routes would be affected. . See Rogers" }, { "docid": "9931255", "title": "", "text": "conjectural or hypothetical; (2) the injury is fairly traceable to the challenged action of the defendant; and (3) it is likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision.” Pac. Capital Bank, N.A. v. Connecticut, 542 F.3d 341, 350 (2d Cir.2008) (quoting Friends of the Earth, Inc. v. Laidlaw Envtl. Servs., Inc., 528 U.S. 167, 180-81, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000)); see also Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992); W.R. Huff Asset Mgmt. Co. v. Deloitte & Touche LLP, 549 F.3d 100, 106-07 (2d Cir.2008), cert. denied, — U.S. —, 129 S.Ct. 2011, 173 L.Ed.2d 1088 (2009). It is the burden of the party invoking federal jurisdiction to establish these three elements. See Lujan, 504 U.S. at 561, 112 S.Ct. 2130. However, “at the pleading stage, standing allegations need not be crafted with precise detail.” Baur v. Veneman, 352 F.3d 625, 631 (2d Cir.2003) (citing Lujan, 504 U.S. at 561, 112 S.Ct. 2130). 1. Injury in Fact To demonstrate an injury in fact, Plaintiffs must allege an “invasion of a legally protected interest which is (a) concrete and particularized and (b) actual or imminent.” Lujan, 504 U.S. at 560, 112 S.Ct. 2130 (internal quotation marks and citations omitted); see also Pac. Capital Bank, 542 F.3d at 350. To show that an injury is “concrete and particularized,” Plaintiffs must allege “that [they] personally ha[ve] suffered some actual or threatened injury as a result of the putatively illegal conduct of’ Defendants. Valley Forge Christian Coll. v. Ams. United for Separation of Church & State, Inc., 454 U.S. 464, 472, 102 S.Ct. 752, 70 L.Ed.2d 700 (1982) (internal quotation marks omitted); see also Lujan, 504 U.S. at 560 n. 1, 112 S.Ct. 2130 (“[T]he injury must affect the plaintiff in a personal and individual way.”). For an injury to be “actual or imminent,” Plaintiffs must show “that [they] ha[ve] sustained or [are] immediately in danger of sustaining some direct injury,” City of Los Angeles v. Lyons, 461 U.S. 95, 102, 103 S.Ct. 1660, 75" }, { "docid": "19625041", "title": "", "text": "136 S.Ct. at 1547 ; Lujan v. Defenders of Wildlife , 504 U.S. 555, 560, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). The plaintiff must have (1) suffered an injury in fact (2) that is fairly traceable to the challenged conduct of the defendant and (3) that is likely to be redressed by a favorable decision. Lujan , 504 U.S. at 560-61, 112 S.Ct. 2130. It is not necessary for all plaintiffs to demonstrate Article III standing. Rather, \"one party with standing is sufficient to satisfy Article III's case-or-controversy requirement.\" Texas v. United States , 809 F.3d 134, 151 (5th Cir. 2015) (quoting Rumsfeld v. Forum for Academic & Institutional Rights, Inc. , 547 U.S. 47, 52 n.2, 126 S.Ct. 1297, 164 L.Ed.2d 156 (2006) ). \"Prudential standing requirements exist in addition to 'the immutable requirements of Article III,' ... as an integral part of 'judicial self-government.' \" ACORN v. Fowler , 178 F.3d 350, 362 (5th Cir. 1999) (quoting Lujan , 504 U.S. at 560, 112 S.Ct. 2130 ). \"The goal of this self-governance is to determine whether the plaintiff 'is a proper party to invoke judicial resolution of the dispute and the exercise of the court's remedial power.' \" Id. (quoting Bender v. Williamsport Area Sch. Dist. , 475 U.S. 534, 546 n.8, 106 S.Ct. 1326, 89 L.Ed.2d 501 (1986) ). The Supreme Court has observed that prudential standing encompasses \"at least three broad principles,\" including \"the general prohibition on a litigant's raising another person's legal rights ....\" Lexmark Int'l, Inc. v. Static Control Components, Inc. , 572 U.S. 118, 134 S.Ct. 1377, 1386, 188 L.Ed.2d 392 (2014) ; Cibolo Waste , 718 F.3d at 474 (quoting Elk Grove , 542 U.S. at 12, 124 S.Ct. 2301 ). As the parties invoking jurisdiction, the Plaintiffs must show the requirements of standing are satisfied. See Ramming v. United States , 281 F.3d 158, 161 (5th Cir. 2001). B. Summary Judgment Summary judgment is proper when the pleadings and evidence show \"that there is no genuine dispute as to any material fact and the movant is entitled to judgment as" } ]

[ { "docid": "22166615", "title": "", "text": "its decision rested entirely on the perceived procedural shortcomings in the post-suspension process. f — H I — I Í-H It is undisputed that appellee’s interest in the right to continue to serve as president of the bank and to participate in the conduct of its affairs is a property right protected by the Fifth Amendment Due Process Clause. The District Court and the parties correctly recognized that the FDIC cannot arbitrarily interfere with appellee’s continuing employment relationship with the bank, nor with his interest as a substantial stockholder in the bank’s holding company. See Feinberg v. FDIC, 173 U. S. App. D. C. 120, 125, 522 F. 2d 1335, 1340 (1975); cf. Cleveland Bd. of Education v. Loudermill, 470 U. S. 532, 538-541 (1985). It is also undisputed that the FDIC’s order of suspension affected a deprivation of this property interest. Accordingly, appellee is entitled to the protection of due process of law. “Once it is determined that due process applies, the question remains what process is due.” Morrissey v. Brewer, 408 U. S. 471, 481 (1972). Here again, we at least start with substantial agreement. Appellee does not contend that he was entitled to an opportunity to be heard prior to the order of suspension. An important government interest, accompanied by a substantial assurance that the deprivation is not baseless or unwarranted, may in limited cases demanding prompt action justify postponing the opportunity to be heard until after the initial deprivation. See Barry v. Barchi, 443 U. S. 55, 64-66 (1979); Dixon v. Love, 431 U. S. 105, 112-115 (1977); North American Cold Storage Co. v. Chicago, 211 U. S. 306, 314-321 (1908). In this case, the postponement of the hearing is supported by such an interest. The legislation under scrutiny is premised on the congressional finding that prompt suspension of indicted bank officers may be necessary to protect the interests of depositors and to maintain public confidence in our banking institutions. See S. Rep., at 4-5; 112 Cong. Rec. 20080 (1966) (remarks of Sen. Proxmire). This interest is certainly as significant as the State’s interest in preserving" } ]

[ { "docid": "7195004", "title": "", "text": "470 U.S. 532, 538, 105 S.Ct. 1487, 84 L.Ed.2d 494 (1985); Figueroa-Serrano v. Ramos-Alverio, 221 F.3d 1, 5-6 (1st Cir.2000). Plaintiffs supervisory duties alone do not qualify as such a protected interest — even if we assume, despite indications to the contrary in her own sworn statement, that they were eliminated permanently. It was uncontested that the supervisory duties were conferred on a discretionary basis to those of the rank of Agent III “who held the trust of the Director of the SIB.” Torres Rosado, 204 F.Supp.2d at 254. Plaintiff was assigned these duties without any civil service competition. Id. Thus, she cannot demonstrate that Puerto Rico’s public employment law created any “reasonable expectation, arising out of a statute, policy, rule, or contract,” that she would continue to perform supervisory duties. Wojcik v. Mass. State Lottery Comm’n, 300 F.3d 92, 101 (1st Cir.2002). Torres-Rivera wrote in his memo to plaintiff that he had decided to “withdraw you from my trust as a supervisor.” He did not violate procedural due process by doing so. See Figueroa-Serrano, 221 F.3d at 7 (“Without career status, the plaintiffs do not have a constitutionally protected property interest in continued employment....”). Due process requirements do not attach to the paid suspension either, at least on the facts of record in this case. The Supreme Court explained in Louder-mill that a government employer who wishes to remove a worker immediately may suspend that worker with pay until the procedures associated with termination can be completed. 470 U.S. at 544-45, 105 S.Ct. 1487. That is exactly what happened here. More recently, a unanimous Supreme Court rejected a categorical rule imposing constitutional due process requirements on suspensions without pay. See Gilbert v. Homar, 520 U.S. 924, 929-30, 117 S.Ct. 1807, 138 L.Ed.2d 120 (1997) (“Due process is flexible and calls for such procedural protections as the particular situation demands.”) (quoting Morrissey v. Brewer, 408 U.S. 471, 481, 92 S.Ct. 2593, 38 L.Ed.2d 484 (1972)). The Gilbert Court also called the deprivation in such cases “relatively insubstantial.” Id. at 932, 117 S.Ct. 1807. Plaintiffs paid suspension in this case, which" }, { "docid": "17987546", "title": "", "text": "position with the ECFD such that the loss of this aspect of his pay could be deemed to be a loss of his position. We therefore conclude that Mr. Luellen’s loss of on-call pay was not a cognizable property right for purposes of the Due Process Clause. 2. Procedural Safeguards Even if Mr. Luellen had a property interest in his on-call pay, we believe the requirements of due process were met under the circumstances. The Supreme Court has explained that due process “ ‘unlike some legal rules, is not a technical conception with a fixed content unrelated to time, place and circumstances.’ ” Gilbert, 520 U.S. at 930, 117 S.Ct. 1807 (quoting Cafeteria & Rest Workers v. McElroy, 367 U.S. 886, 895, 81 S.Ct. 1743, 6 L.Ed.2d 1230 (1961)). Instead, it “ ‘is flexible and calls for such procedural protections as the particular situation demands.’ ” Id. (quoting Morrissey v. Brewer, 408 U.S. 471, 481, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972)). Traditionally, the Court has looked to three factors to determine what process is “due” under the circumstances: “‘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.’ ” Id. at 931-32, 117 S.Ct. 1807 (quoting Mathews v. Eldridge, 424 U.S. 319, 335, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976)). In Loudermill, the Court applied these factors to determine whether due process required a governmental body to provide a pre-termination hearing to a public employee who could be terminated only for cause. The Court concluded that, weighing these factors, due process requires “ ‘some kind of hearing’ prior to the discharge of an employee who has a constitutionally protected property interest in his employment.” Loudermill, 470 U.S. at 542, 105 S.Ct. 1487 (quoting Bd. of Regents v. Roth, 408 U.S. 564, 569-70, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972)). It specifically noted that “[t]he governmental interest in immediate termination does not out weigh” the individual’s interest" }, { "docid": "11869605", "title": "", "text": "or Gilbert v. Homar, 520 U.S. 924, 117 S.Ct. 1807, 138 L.Ed.2d 120 (1997), both of which were relied upon by the District Court, support Reilly’s position. Although Sarteschi asserts the uncontroversial proposition that a procedural due process right arises to protect one’s expectation of proper procedures before discharge, that decision says nothing about a plaintiffs obligations to follow post-deprivation procedures before filing suit for an alleged violation of his/her right to pre-deprivation procedures. 508 F.2d at 115 n. 7. Thus, Sarteschi does not conflict with Alvin. The constitutional right to process does not permit one to forego post-deprivation procedures that may remedy any defect in the initial procedures without demonstrating that the post-deprivation procedures are inadequate. Gilbert is equally unavailing. In that decision, the Supreme Court explained that pre-deprivation process is not invariably required. 520 U.S. at 930, 117 S.Ct. 1807 (“This Court has recognized, on many occasions, that where a State must act quickly, or where it would be impractical to provide pre-deprivation process, post-deprivation process satisfies the requirements of the Due Process Clause.”). Therefore, defendant, a university police officer who had been charged with a felony, was not entitled to a hearing before being suspended, id. at 933, 117 S.Ct. 1807, because “in the case of a suspension there will be ample opportunity to invoke [the decision-maker’s] discretion later,” id. at 934-35, 117 S.Ct. 1807. The Court then addressed the distinct question whether defendant “was provided an adequately prompt posi-suspension hearing....” Id. at 935, 117 S.Ct. 1807. Rather than supporting the proposition that a pre-deprivation procedure may be challenged without consideration of any available post-deprivation procedures, Gilbert makes clear that the availability and validity of any pre-deprivation process must be analyzed with reference to the context of the alleged violation and the adequacy of available post-deprivation procedures. Reilly did not attempt to invoke any of the post-deprivation procedures available to him, nor does he contest their adequacy. Therefore, he cannot state a valid procedural due process claim as a matter of law. In summary, we will reverse the District Court’s order that Appellants are not entitled to" }, { "docid": "19270947", "title": "", "text": "520 U.S. 924, 929, 117 S.Ct. 1807, 138 L.Ed.2d 120 (1997) (noting “we have not had occasion to decide whether the protections of the Due Process Clause extend to discipline of tenured public employees short of termination”). The question presented, then, is what process Kirkland was due. See Brown, 399 F.3d at 1255. While “state law determines whether a person has a property right,” “it is purely a matter of federal constitutional law whether the procedure afforded was adequate.” Hulen, 322 F.3d at 1247. Kirkland asserts that the District should have afforded him both pre-and post-suspension due process. 1. Whether Kirkland was entitled to procedural due process before the District suspended him without pay. “[T]he root requirement of the Due Process Clause [is] that an individual be given an opportunity for a hearing before he is deprived of any significant property interest.” Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 542, 105 S.Ct. 1487, 84 L.Ed.2d 494 (1985) (quotation omitted). Nonetheless, “[t]here are ... some situations in which a postdeprivation hearing will satisfy due process requirements.” Id. at 542 n. 7, 105 S.Ct. 1487. “It is by now well established that due process, unlike some legal rules, is not a technical conception with a fixed content unrelated to time, place and circumstances.” Gilbert, 520 U.S. at 930, 117 S.Ct. 1807 (quotation omitted). Rather, it “is flexible and calls for such procedural protections as the particular situation demands.” Id. (quotation omitted). In addressing what process is due, the Court in Gilbert applied a three-part balancing test: To determine what process is constitutionally due, we have generally balanced three distinct 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.” Gilbert, 520 U.S. at 931-32, 117 S.Ct. 1807 (quoting Mathews v. Eldridge, 424 U.S. 319, 335, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976)). a. Kirkland’s private interest In Gilbert, the Court considered a state university’s decision to" }, { "docid": "17987545", "title": "", "text": "the claim that we rejected in Tcnmsend. In Townsend, a teacher was suspended and temporarily reassigned to an administrative position, with pay, pending an investigation into a death of a student. The teacher argued that, although he received his teaching salary, he had lost the opportunity to earn additional income from coaching positions, and this constituted a deprivation of property under the Due Process Clause. We rejected this argument: In our view, the temporary loss of this possibility for additional income does not warrant the characterization [of a property interest] given by the district court. We have recognized that removal or suspension from a tenured position might produce indirect economic effects that trigger the protection of the Due Process Clause. Nevertheless, we do not believe that the temporary loss of this possibility for additional income is the sort of deprivation that triggers the protection of federal due process. Id. Like the coaching position in Townsend, Mr. Luellen’s on-call pay was not protected by statute. Furthermore, it does not appear to be so integral to his position with the ECFD such that the loss of this aspect of his pay could be deemed to be a loss of his position. We therefore conclude that Mr. Luellen’s loss of on-call pay was not a cognizable property right for purposes of the Due Process Clause. 2. Procedural Safeguards Even if Mr. Luellen had a property interest in his on-call pay, we believe the requirements of due process were met under the circumstances. The Supreme Court has explained that due process “ ‘unlike some legal rules, is not a technical conception with a fixed content unrelated to time, place and circumstances.’ ” Gilbert, 520 U.S. at 930, 117 S.Ct. 1807 (quoting Cafeteria & Rest Workers v. McElroy, 367 U.S. 886, 895, 81 S.Ct. 1743, 6 L.Ed.2d 1230 (1961)). Instead, it “ ‘is flexible and calls for such procedural protections as the particular situation demands.’ ” Id. (quoting Morrissey v. Brewer, 408 U.S. 471, 481, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972)). Traditionally, the Court has looked to three factors to determine what process is" }, { "docid": "8188902", "title": "", "text": "on procedural defects under New Mexico law; and (3) an equal protection claim based on the state’s decision to treat Guttman differently than other licensed professionals. a. Procedural Due Process: Lack of a Deprivation Hearing Guttman’s first Fourteenth Amendment claim is that the Board violated his due process rights by not providing him a hearing before suspending his medical license. “To assess whether an individual was denied procedural due process, courts must engage in a two-step inquiry: (1) did the individual possess a protected interest such that the due process protections were applicable; and, if so, then (2) was the individual afforded an appropriate level of process.” Hatfield v. Bd. of Cnty. Comm’rs, 52 F.3d 858, 862 (10th Cir.1995) (quotations omitted). In light of Stidham v. Peace Officer Standards & Training, 265 F.3d 1144, 1150 (10th Cir.2007), New Mexico does not contest the district court’s finding that Guttman had a protected property interest in his medical license. The parties disagree, however, whether Guttman received an appropriate level of process. Ordinarily, “one who has a protected property interest is entitled to some sort of hearing before the government acts to impair that interest, although the hearing need not necessarily provide all, or even most, of the protections afforded by a trial.” Camuglia v. City of Albuquerque, 448 F.3d 1214, 1220 (10th Cir. 2006) (citing Mathews v. Eldridge, 424 U.S. 319, 335, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976)). “[D]ue 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, 33 L.Ed.2d 484 (1972). The Supreme Court has repeatedly held, “where a State must act quickly, or where it would be impractical to provide predeprivation process, postdeprivation process satisfies the requirements of the Due Process Clause.” Gilbert v. Homar, 520 U.S. 924, 930, 117 S.Ct. 1807, 138 L.Ed.2d 120 (1997). Furthermore, “[a]n important government interest, accompanied by a substantial assurance that the deprivation is not baseless or unwarranted, may in limited cases demanding prompt action justify postponing the opportunity to be heard until after the initial deprivation.” Id." }, { "docid": "22922644", "title": "", "text": "on the result we would reach where the offense was significantly less serious, or where the daily fees or total debt were significantly higher. Cf. Ilkanic, 705 So.2d at 1372-73 (rejecting due process and equal protection challenges to statute that provided for assessment of $50.00 per day for “damages and losses for incarceration costs and other correctional costs”). Under the circumstances presently before us, however, we conclude as a matter of law that the amounts were not “excessive” under the Eighth Amendment. B. Fourteenth Amendment 1. Due Process Under procedural due process, the plaintiffs interest must fall within the scope of “life, liberty, or property.” Hewitt v. Helms, 459 U.S. 460, 466, 103 S.Ct. 864, 74 L.Ed.2d 675 (1983). The defendants properly concede that the plaintiff has a property interest in his prison account, Reynolds, 128 F.3d at 179, but insist that he was provided with adequate procedural due process. We agree. In considering, a due process claim, we look to the private interest, the governmental interest, and the value of the available procedure in safeguarding against an erroneous deprivation. Id.; see also Mathews v. Eldridge, 424 U.S. 319, 335, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976). Due process “ ‘is flexible and calls for such procedural protections as the particular situation demands’ ” in order to “minimize] the risk of error.” Greenholtz v. Inmates of the Nebraska Penal and Corr. Complex, 442 U.S. 1, 12-13, 99 S.Ct. 2100, 60 L.Ed.2d 668 (1979) (quoting Morrissey v. Brewer, 408 U.S. 471, 481, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972)). “The amount of notice due depends on the context.” Reynolds, 128 F.3d at 179 (citing Gilbert v. Homar, 520 U.S. 924, 117 S.Ct. 1807, 1812, 138 L.Ed.2d 120 (1997)). In some cases, takings of property by the State require predeprivation notice and a hearing. Parratt v. Taylor, 451 U.S. 527, 538, 101 S.Ct. 1908, 68 L.Ed.2d 420 (1981), overruled on other gds., Daniels v. Williams, 474 U.S. 327, 106 S.Ct. 662, 88 L.Ed.2d 662 (1986). But where the State must take quick action, or where it is impractical to provide meaningful predeprivation" }, { "docid": "19270946", "title": "", "text": "the November 13 resignation agreement. Therefore, he cannot allege a constitutional deprivation of property without due process. The individual Defendants are entitled to qualified immunity on this claim. B. Whether the individual Defendants are entitled to qualified immunity on Kirkland’s claim that the Defendants deprived him of a property interest without due process when the Board suspended him without pay. Kirkland alleges that the individual Defendants deprived him of procedural due process when, on November 16, 2002, they suspended him without pay. Defendants concede that Kirkland possessed a property interest in his one-year employment contract, running from July 1, 2002 through June 30, 2003. For purposes of this appeal, we assume, without deciding, that a government employee’s suspension without pay amounts to a deprivation triggering some degree of due process protections. Similarly, in Gilbert v. Homar, the Supreme Court assumed, without deciding, that a government entity’s suspension, without pay, of a public employee, who has a protected property interest in his continued employment, amounts to a property deprivation sufficient to implicate due process protections. See 520 U.S. 924, 929, 117 S.Ct. 1807, 138 L.Ed.2d 120 (1997) (noting “we have not had occasion to decide whether the protections of the Due Process Clause extend to discipline of tenured public employees short of termination”). The question presented, then, is what process Kirkland was due. See Brown, 399 F.3d at 1255. While “state law determines whether a person has a property right,” “it is purely a matter of federal constitutional law whether the procedure afforded was adequate.” Hulen, 322 F.3d at 1247. Kirkland asserts that the District should have afforded him both pre-and post-suspension due process. 1. Whether Kirkland was entitled to procedural due process before the District suspended him without pay. “[T]he root requirement of the Due Process Clause [is] that an individual be given an opportunity for a hearing before he is deprived of any significant property interest.” Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 542, 105 S.Ct. 1487, 84 L.Ed.2d 494 (1985) (quotation omitted). Nonetheless, “[t]here are ... some situations in which a postdeprivation hearing will satisfy due" }, { "docid": "8188903", "title": "", "text": "property interest is entitled to some sort of hearing before the government acts to impair that interest, although the hearing need not necessarily provide all, or even most, of the protections afforded by a trial.” Camuglia v. City of Albuquerque, 448 F.3d 1214, 1220 (10th Cir. 2006) (citing Mathews v. Eldridge, 424 U.S. 319, 335, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976)). “[D]ue 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, 33 L.Ed.2d 484 (1972). The Supreme Court has repeatedly held, “where a State must act quickly, or where it would be impractical to provide predeprivation process, postdeprivation process satisfies the requirements of the Due Process Clause.” Gilbert v. Homar, 520 U.S. 924, 930, 117 S.Ct. 1807, 138 L.Ed.2d 120 (1997). Furthermore, “[a]n important government interest, accompanied by a substantial assurance that the deprivation is not baseless or unwarranted, may in limited cases demanding prompt action justify postponing the opportunity to be heard until after the initial deprivation.” Id. at 930-31, 117 S.Ct. 1807. “In matters of public health and safety, the Supreme Court has long recognized that the government must act quickly. Quick action may turn out to be wrongful action, but due process requires only a postdeprivation opportunity to establish the error.” Camuglia, 448 F.3d at 1220 (citing North American Cold Storage Co. v. City of Chicago, 211 U.S. 306, 315, 29 S.Ct. 101, 53 L.Ed. 195 (1908)). The discovery that a physician constitutes an imminent danger to public safety is precisely the kind of circumstance where the government must act quickly. Here, the Board suspended Guttman’s license after finding “clear and convincing evidence that [his] continuation in practice would constitute an imminent danger to public safety.” R. at 303. A few months later, the Board conducted a three-day administrative hearing, in which Guttman participated via counsel. Because (1) the deprivation was supported by the important government interest of protecting the public, (2) clear and convincing evidence provided substantial assurance that the deprivation was not unwarranted, and (3) Guttman was provided with" }, { "docid": "22463843", "title": "", "text": "subject to due process protection); Ward v. Downtown Dev. Auth., 786 F.2d 1526, 1530, 1531 (11th Cir.1986) (holding that under Florida law, continued occupancy, even pursuant to a tenancy at will, is a protected property interest within the meaning of the Takings Clause and the Due Process Clause of the Fifth Amendment). And none of the parties question the fact that Rhodes’ conduct, as the chief of the City’s Code Enforcement Bureau, constitutes “state action” for the purposes of § 1983 liability. Because the plaintiffs have alleged that they were deprived of a constitutionally-protected property interest as a result of state action, due process is implicated and the question becomes what process is due. Morrissey v. Brewer, 408 U.S. 471, 481, 92 S.Ct. 2593, 2600, 33 L.Ed.2d 484 (1972). The Supreme Court has often noted that due process is a flexible concept that varies with the particular circumstances of each case, and to determine the requirements of due process in a particular situation, we must apply the balancing test articulated in Mathews v. Eldridge, 424 U.S. 319, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976). See, e.g., Gilbert v. Homar, 520 U.S. 924, 931-32, 117 S.Ct. 1807, 1812, 138 L.Ed.2d 120 (1997) (applying the Mathews test to determine what process is constitutionally due); Zinermon v. Burch, 494 U.S. 113, 127, 110 S.Ct. 975, 984, 108 L.Ed.2d 100 (1990) (same); United States v. Wattleton, 296 F.3d 1184, 1198 (11th Cir.2002) (same). Under the Mathews test, identification of the specific dictates of due process generally requires consideration of three distinct 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, 424 U.S. at 335, 96 S.Ct. at 903. We examine each of the Mathews factors to determine what process was due in this case. 1. The Mathews Factors The" }, { "docid": "8007003", "title": "", "text": "the present case. In Gilbert v. Homar, 520 U.S. 924, 117 S.Ct. 1807, 138 L.Ed.2d 120 (1997), a police officer employed by a public university was arrested in a drug raid conducted by state police and charged with a felony. Effective immediately, he was suspended without pay. Id. at 927, 117 S.Ct. 1807. Although all criminal charges were dismissed five days later, the suspension remained in effect while the university police department conducted its own investigation. Id. Approximately three weeks later, the officer met with his police chief to convey his side of the story. The officer was then informed that the state police had provided his employer with information that was “very serious in nature.” Id. What he was not told, however, was that this information included a report of his alleged confession on the day of his arrest. Id. As the Court noted, “he was consequently unable to respond to damaging statements attributed to him in the police report.” Id. A week later, after the officer had read the state police report, he was informed that he would be demoted to the position of groundskeeper and given backpay at the lower rate of pay assigned to the lower position. The following day, the officer was given the opportunity before the university president to respond fully to the charges. The president, in turn, sustained the charges. The Court ultimately ruled that failure by the university to provide the officer with a pre-deprivation (i.e., pre-suspension) hearing did not violate procedural due process. Id. at 933, 117 S.Ct. 1807. In reaching this conclusion, the Court noted the well-established axiom that “ ‘due process is flexible and calls for such procedural protections as the particular situation demands.’ ” Id. at 930, 117 S.Ct. 1807 (quoting Morrissey v. Brewer, 408 U.S. 471, 481, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972)). The Court then “balanced three distinct 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" }, { "docid": "7195005", "title": "", "text": "221 F.3d at 7 (“Without career status, the plaintiffs do not have a constitutionally protected property interest in continued employment....”). Due process requirements do not attach to the paid suspension either, at least on the facts of record in this case. The Supreme Court explained in Louder-mill that a government employer who wishes to remove a worker immediately may suspend that worker with pay until the procedures associated with termination can be completed. 470 U.S. at 544-45, 105 S.Ct. 1487. That is exactly what happened here. More recently, a unanimous Supreme Court rejected a categorical rule imposing constitutional due process requirements on suspensions without pay. See Gilbert v. Homar, 520 U.S. 924, 929-30, 117 S.Ct. 1807, 138 L.Ed.2d 120 (1997) (“Due process is flexible and calls for such procedural protections as the particular situation demands.”) (quoting Morrissey v. Brewer, 408 U.S. 471, 481, 92 S.Ct. 2593, 38 L.Ed.2d 484 (1972)). The Gilbert Court also called the deprivation in such cases “relatively insubstantial.” Id. at 932, 117 S.Ct. 1807. Plaintiffs paid suspension in this case, which caused only a very temporary deprivation of job functions and no financial loss, did not give rise to any constitutional entitlement to due process. The termination of her employment, however, did require due process. It is well-established under Puerto Rico law and First Circuit precedents that career employees in positions such as plaintiffs—and who are not in political or poli-cymaking positions, cf. Flynn v. City of Boston, 140 F.3d 42, 45 (1st Cir.1998)—are entitled to due process in association with their termination. See Acosta-Orozco v. Rodriguez-De-Rivera, 132 F.3d 97, 104 (1st Cir.1997). The crucial question becomes: what process was due? This is an issue of federal law. See Loudermill, 470 U.S. at 541, 105 S.Ct. 1487; Vitek v. Jones, 445 U.S. 480, 491, 100 S.Ct. 1254, 63 L.Ed.2d 552 (1980). Plaintiff received far more than the minimum elements of procedural due process: “some kind of a hearing” and an opportunity to respond to the allegations against her. Loudermill, 470 U.S. at 542, 105 S.Ct. 1487; see O’Neill v. Baker, 210 F.3d 41, 47-48 (1st Cir.2000)." }, { "docid": "12302848", "title": "", "text": "to a one-semester suspension. Plaintiff argues that the proceedings against him were fundamentally unfair and that he was denied procedural due process in violation of the fourteenth amendment. Defendant argues that the procedural protections afforded plaintiff satisfied the requirements of the due process clause. I find that plaintiff was treated fairly, and that the University’s procedures satisfied the fourteenth amendment. II. DISCUSSION The fourteenth amendment to the United States Constitution provides that no state shall “deprive any person of life, liberty, or property, without due process of law.” U.S.Const. amend. XIV, § 1. While it is not always clear when a constitutional claim has been raised, plaintiff’s suspension from the University involves a sufficient “liberty” interest to entitle him to the guarantees of the fourteenth amendment. Goss v. Lopez, 419 U.S. 565, 575, 95 S.Ct. 729, 736, 42 L.Ed.2d 725 (1975) (“Liberty” interests implicated where high school student was suspended for 10 days since suspensions “could seriously damage the students’ standing with their fellow pupils and their teachers as well as interfere with later opportunities for higher education and employment.”); Wisconsin v. Constantineau, 400 U.S. 433, 437, 91 S.Ct. 507, 510, 27 L.Ed.2d 515 (1971) (“Where a person’s good name, reputation, honor, or integrity is at stake because of what the government is doing to him, notice and an opportunity to be heard are essential.”). See also Board of Regents v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972). Plaintiff may also have a “property” interest in continuing his education at the University of Michigan. Goss, 419 U.S. at 574, 95 S.Ct. at 736. Whether plaintiffs interest is a “liberty” interest, “property” interest, or both, it is clear that he is entitled to the protection of the due process clause. “Once it is determined that due process applies, the question remains what process is due.” Morrissey v. Brewer, 408 U.S. 471, 481, 92 S.Ct. 2593, 2600, 33 L.Ed.2d 484 (1972). While due process is a flexible concept and will vary with the facts of each case, the Supreme Court has articulated criteria for determining What process is" }, { "docid": "2560176", "title": "", "text": "and depriving her of her paycheck, defendants deprived her of property. She further contends that by taking her guns from her when she was placed on medical leave, she suffered an injury to her reputation and, thus, a deprivation of her liberty interest. The Constitution protects, but does not create, property interests. See Donato v. Plainview-Old Bethpage Cent. Sch. Dist., 96 F.3d 623, 628 (2d Cir.1996). It is well recognized that public employees who are subject to dismissal only for cause, as is Dimino, have a property interest in their employment and may not be discharged without due process. See Board, of Regents of State Colleges v. Roth, 408 U.S. 564, 578, 92 S.Ct. 2701, 2709-10, 33 L.Ed.2d 548 (1972). Moreover, the Supreme Court recently extended the protections of due process, in a more limited form, to suspensions of such employees as well. See Gilbert v. Homar, 520 U.S. 924, 117 S.Ct. 1807, 138 L.Ed.2d 120 (1997). In doing so, however, the Court recognized that “due process is flexible and calls for such procedural protections as the particular situation demands.” Id. at 930, 117 S.Ct. at 1812 (quoting Morrissey v. Brewer, 408 U.S. 471, 481, 92 S.Ct. 2593, 2600, 33 L.Ed.2d 484 (1972)). The three factors identified by the Court as determinative are: (1) the private interest affected; (2) the risk of erroneous deprivation of the interest through use of procedures in place and the value of additional safeguards; and (3) the government’s interest. See id. at 931-32, 117 S.Ct. at 1812. In placing Dimino on medical leave, defendants did not discharge Dimino, nor even suspend her. However, defendants did deprive her of her job (temporarily) and of her paycheck (again temporarily). In her complaint, Dimino alleges that her benefits may have been affected, see Compl. ¶ 117, but she has not provided evidence that this has occurred. Thus, while Dimino did suffer a loss of property, that loss seems to have been relatively minor and correctable at a later point. Furthermore, the procedural safeguards that were in place, and the government’s overwhelming interest more than satisfy the limited due" }, { "docid": "20777006", "title": "", "text": "a technical conception with a fixed content unrelated to time, place and circumstances.’ ” Gilbert v. Homar, 520 U.S. 924, 930, 117 S.Ct. 1807, 138 L.Ed.2d 120 (1997) (quoting Cafeteria and Restaurant Workers v. McElroy, 367 U.S. 886, 895, 81 S.Ct. 1743, 6 L.Ed.2d 1230 (1961)). Otherwise put, “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, 33 L.Ed.2d 484 (1972). Citing Homar, and Morrissey, inter alia, the United States contends that since due process consists only of that process which is due under the circumstances, even given our holding that petitioners are protected by the due process clause, they are not due any procedural protection that they have not already received. When analyzing the petitioners’ claims, and the government’s defenses, we are mindful that two distinct questions remain for us to determine. We have dispensed with the issue as to whether petitioners are entitled to due process; the questions remaining for us are what due process, and when. That is, to what procedural devices must the petitioners have access in order to protect their interests against the deprivations worked by the statute, and must that access be afforded before the Secretary’s declaration, or is it sufficient under the circumstances that such access be available post-deprivation? The government rightly reminds us that the Supreme Court established in Mathews v. Eldndge and indeed even before that decision, that identification of the specific dictates of due process generally requires consideration of three distinct factors: first, the private interests that will be affected by the official action; second, the risk of an erroneous deprivation of such interest of the procedure 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 requirements would entail. 424 U.S. at 335, 96 S.Ct. 893 (citing Goldberg v. Kelly, 397 U.S. 254, 263-71, 90 S.Ct. 1011, 25 L.Ed.2d 287 (1970)). Unlike the advocates before us, we do not" }, { "docid": "13079553", "title": "", "text": "could be suspended only “for cause,” he had more than a unilateral expectation in his continued employment with the Gary Fire Department. Jones had a protected property interest in his employment with the City of Gary Fire Department of which he could be deprived only with due process of law. Fittshur, 31 F.3d at 1405. C. “Once it is determined that due process applies, the question remains what process is due.” Morrissey v. Brewer, 408 U.S. 471, 481, 92 S.Ct. 2593, 2600, 33 L.Ed.2d 484 (1972). “Identification of the precise dictates of-due process requires consideration of both the governmental function involved and the private interests affected by official action.” Fusari v. Steinberg, 419 U.S. 379, 389, 95 S.Ct. 533, 539, 42 L.Ed.2d 521 (1974). Due process is a flexible concept that varies from ease to case. Zinermon v. Burch, 494 U.S. 113, 127, 110 S.Ct. 975, 984, 108 L.Ed.2d 100 (1990). Therefore; although we generally require that any deprivation of a protected property interest “be preceded by notice and opportunity for hearing appropriate to the nature of the case,” Loudermill, 470 U.S. at 542, 105 S.Ct. at 1493 (quotation omitted), there are exceptional cases in which post-deprivation hearings provide sufficient due process of law. Federal Deposit Ins. Corp. v. Mallen, 486 U.S. 230, 240, 108 S.Ct. 1780, 1787-88, 100 L.Ed.2d 265 (1988). “An important government interest, accompanied by a substantial assurance that the deprivation is not baseless or unwarranted, may in limited cases demanding prompt action justify postponing the opportunity to be heard until after the initial deprivation.” Id. (citations omitted). To facilitate the analysis of whether a post-deprivation hearing provides sufficient due process of law, the Supreme Court has enumerated three considerations: First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interests through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government’s interests, including the function involved and the fiscal and the administrative burdens that the additional or substitute procedural requirement would entail. Zinermon, 494 U.S. at" }, { "docid": "16219830", "title": "", "text": "local law. See Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 538-39, 105 S.Ct. 1487, 1491, 84 L.Ed.2d 494 (1985) (property interest in government employment is created and defined by state law); Utah Orderly School Termination Procedures Act, Utah Code Ann. §§ 53A-8-101 to -107; see also Professional Agreement, II R. doc. 34, ex. I at 42-46. Therefore, due process procedures were required to protect plaintiff’s property interest. See, e.g., Bailey v. Kirk, Til F.2d 567, 575 (10th Cir.1985). “Once it is determined that due process applies, the question remains what process is due.” FDIC v. Mallen, 486 U.S. 230, 240, 108 S.Ct. 1780, 1787, 100 L.Ed.2d 265 (1988) (quoting Morrissey v. Brewer, 408 U.S. 471, 481, 92 S.Ct. 2593, 2600, 33 L.Ed.2d 484 (1972)). A The Court has stated that due process “requires ‘some kind of a hearing’ prior to the discharge of an employee who has a constitutionally protected property interest in his employment.” Loudermill, 470 U.S. at 542, 105 S.Ct. at 1493. The pretermination hearing “should be an initial check against mistaken decisions — essentially, a determination of whether there are reasonable grounds to believe that the charges against the employee are true and support the proposed action.” Id. at 545-46, 105 S.Ct. at 1495. In Mallen, however, the Court stated that “[a]n important government interest, accompanied by a substantial assurance that the deprivation is not baseless or unwarranted, may in limited cases demanding prompt action justify postponing the opportunity to be heard until after the initial deprivation.” 486 U.S. at 240, 108 S.Ct. at 1787. In the instant case, the Board presented uncontroverted evidence that, before suspending plaintiff, assistant superintendent Burton verified that plaintiff had been arrested on drug charges. An arrest and filing of charges by the government requires probable cause and thus provides a sufficient basis for temporary deprivation of a property interest without a prior hearing. Cf. id. at 241, 108 S.Ct. at 1787 (grand jury indictment provides sufficient basis, in combination with Congress’ mandate that prompt suspension is needed to maintain integrity of banking system, for suspension without hearing). In the" }, { "docid": "23495606", "title": "", "text": "of state law is neither a necessary nor a sufficient condition for a finding of a due process violation.” Stern v. Tarrant County Hosp. Dist., 778 F.2d 1052, 1059 (5th Cir.1985) (en banc). “The fundamental issue in due process law is not whether state officials violated state law, but whether they provided the plaintiff with the [federal] constitutional minima.” Gerhart v. Hayes, 201 F.3d 646, 650 (5th Cir.2000). Therefore, the issue is whether McIntosh received sufficient process to meet the requirements of the federal Due Process Clause before his suspension with pay. To determine what process is constitutionally due, the Supreme Court has advised us to balance three 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 .... ” Mathews v. Eldridge, 424 U.S. 319, 96 S.Ct. 893, 903, 47 L.Ed.2d 18 (1976). In a case dealing with the suspension of a tenured employee, the Supreme Court held that “[a]n important government interest, accompanied by a substantial assurance that the deprivation is not baseless or unwarranted, may in limited cases demanding prompt action justify postponing the opportunity to be heard until after the initial deprivation.” FDIC v. Mallen, 486 U.S. 230, 108 S.Ct. 1780, 1787-88, 100 L.Ed.2d 265 (1988); see, e.g., Gilbert v. Homar, 520 U.S. 924, 117 S.Ct. 1807, 1813-14, 138 L.Ed.2d 120 (1997) (holding that a state’s interest in preserving the integrity of its police force warranted suspending a recently indicted officer without pay before he was given a hearing); Barry v. Barchi, 443 U.S. 55, 99 S.Ct. 2642, 2649-50, 61 L.Ed.2d 365 (1979) (holding that a state’s interest in preserving the integrity of the sport of horse racing was sufficiently important to justify a brief period of suspension prior to affording a suspended trainer a hearing). In this case, McIntosh’s interest was in maintaining his job, and Texas’s interest was in protecting the dental health of RSS’s mentally and physically disabled residents." }, { "docid": "17561848", "title": "", "text": "“rare”), with e.g., Barry v. Barchi, 443 U.S. 55, 99 S.Ct. 2642, 61 L.Ed.2d 365 (1979) (holding that state’s interest in preserving integrity of sport of horse racing justifies lack of pre-deprivation hearing), and Mallen, 486 U.S. 230, 108 S.Ct. 1780 (holding that state’s interest in maintaining public confidence in bank management justifies post-deprivation hearing for removal of bank manager). Where extraordinary circumstances justify dispensing with a pre-deprivation hearing, however, a prompt post-deprivation hearing must be provided. See Mallen, 486 U.S. at 242, 108 S.Ct. 1780. In determining whether a post-deprivation hearing procedure is reasonably prompt, a court should “examine the importance of the private interest and the harm to this interest occasioned by delay; the justification offered by the Government for delay and its relation to the underlying governmental interest; and the likelihood that the interim decision may have been mistaken.” Id. Here, we have no doubt that the state’s interest in ensuring the payment of prevailing wages is sufficiently “important,” see Mallen, 486 U.S. at 240, 108 S.Ct. 1780, to justify the withholding of funds pending the outcome of whatever kind of hearing may be afforded. Whether a hearing is before or after the giving of notice or the actual withholding is a matter for the state to determine on the basis of the practical considerations involved. See, e.g., Gilbert v. Homar, 520 U.S. 924, 117 S.Ct. 1807, 1812, 138 L.Ed.2d 120 (1997) (citing Morrissey v. Brewer, 408 U.S. 471, 481, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972)). In this case, however, subcontractors like G & G are afforded neither a prenor post-deprivation hearing when payments are withheld. Once the state determines that a violation of the prevailing wage law has occurred, it may withhold and disburse money directly to the workers and may impose fines both without providing any hearing at which the subcontractor might challenge the validity of the state’s finding. Accordingly, subcontractors have no opportunity to be heard at a meaningful time in a meaningful manner. See Fuentes, 407 U.S. at 80, 92 S.Ct. 1983. This scheme violates the Due Process Clause of the Fourteenth" }, { "docid": "20777005", "title": "", "text": "sufficient to entitle petitioners to the due process of law. b. When process is due As petitioners argue, the fundamental norm of 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. Mathews v. Eldridge, 424 U.S. 319, 334-35, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976). Therefore, petitioners argue that the Secretary was obligated to give them notice of her intent to make the declarations of terrorist status and previous nature, and afford them the opportunity to respond to the evidence upon which she proposed to make those declarations and to be heard on the proper resolution of the questions. Indeed, “[the Supreme] Court consistently has held that some form of hearing is required before an individual is finally deprived of a property interest.” Id. at 333, 96 S.Ct. 893. At the same time, the Supreme Court has made clear that “[i]t is by now well established that ‘ “due process” unlike some legal rules, is not a technical conception with a fixed content unrelated to time, place and circumstances.’ ” Gilbert v. Homar, 520 U.S. 924, 930, 117 S.Ct. 1807, 138 L.Ed.2d 120 (1997) (quoting Cafeteria and Restaurant Workers v. McElroy, 367 U.S. 886, 895, 81 S.Ct. 1743, 6 L.Ed.2d 1230 (1961)). Otherwise put, “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, 33 L.Ed.2d 484 (1972). Citing Homar, and Morrissey, inter alia, the United States contends that since due process consists only of that process which is due under the circumstances, even given our holding that petitioners are protected by the due process clause, they are not due any procedural protection that they have not already received. When analyzing the petitioners’ claims, and the government’s defenses, we are mindful that two distinct questions remain for us to determine. We have dispensed with the issue as to whether petitioners are entitled to due process; the questions remaining for us are what due process, and when." } ]

[ { "docid": "21033539", "title": "", "text": "v. Center for Humanities, Inc., — U.S. -, ---, 116 S.Ct. 2211, 2224-25, 135 L.Ed.2d 659 (1996), Consorti v. Armstrong World Indus., Inc., 103 F.3d 2, 4 (2d Cir.1996); Bunt v. Altec Indus., Inc., 962 F.Supp. 313, 320 (N.D.N.Y.1997) (Hurd, M.J.); Kukla v. Syfus Leasing Corp., 928 F.Supp. 1328, 1336 (S.D.N.Y.1996). The relevant law is set forth in C.P.L.R. § 5501(c) (McKinney 1995). That section provides in part as follows: In reviewing a money judgment ... in which it is contended that the award is excessive or inadequate and that a new trial should have been granted unless a stipulation is entered to a different award, the appellate division shall determine that an award is excessive or inadequate if it deviates materially from what would be reasonable compensation. id. In determining whether a jury award is excessive under this standard, New York courts look to verdicts in similar cases. Gasperini, — U.S. at -, 116 S.Ct. at 2218 (citing Leon v. J & M Peppe Realty Corp., 190 A.D.2d 400, 596 N.Y.S.2d 380, 389 (1st Dep’t 1993); Johnston v. Joyce, 192 A.D.2d 1124, 596 N.Y.S.2d 625, 626 (4th Dep’t 1993)). In opposing defendant’s motion, plaintiff relies extensively on testimony regarding the extent of defendant’s discriminatory acts and wrongs. (See PI. Mem. in Opp. at 18-19). Such testimony, while probative of discrimination itself, does not itself prove emotional damages. See, e.g., McIntosh v. Irving Trust Co., 887 F.Supp. 662, 665 (S.D.N.Y.1995) (“it does not follow that simply because there was retaliation, there must be an award of compensatory damages; rather, the compensatory damages must be proven and not presumed.”); Northern Orchard Co., Inc. v. State Division of Human Rights, 161 A.D.2d 846, 555 N.Y.S.2d 892, 893 (3d Dep’t) (“Although an award for mental anguish may be based solely on the complainant’s testimony, damage may not be presumed because of the nature of the discrimination itself.”), appeal denied, 76 N.Y.2d 713, 563 N.Y.S.2d 769, 565 N.E.2d 518 (1990). Rather than evidence of discrimination, plaintiff must provide proof that he “in fact suffered mental anguish or humiliation[.]” Cullen v. Nassau County Civil Serv." } ]

[ { "docid": "12180276", "title": "", "text": "of the supreme court ... In reviewing a money judgment in an action in which an itemized verdict is required by rule forty-one hundred eleven of this chapter in which it is contended that the award is excessive or inadequate and that a new trial should have been granted unless a stipulation is entered to a different award, the appellate division shall determine that an award is excessive or inadequate if it deviates materially from what would be reasonable compensation. N.Y. Civ. PRAo. Law and Rules § 5501(c). Section 5501(c) was enacted to “promote greater stability in the tort sys tem and greater fairness for similarly situated defendants” throughout New York. Memorandum on Approving L. 1986, ch. 682, 1986 N.Y. Laws, at 3184 (cited in Gasperini v. Ctr. for Humanities, Inc., 518 U.S. 415, 423, 116 S.Ct. 2211, 135 L.Ed.2d 659 (1996), and Donlon v. City of New York, 284 A.D.2d 13, 14, 727 N.Y.S.2d 94, 96 (1st Dep’t 2001)). “The ‘deviates materially’ standard ... influences outcomes by tightening the range of tolerable awards.” Gasperini, 518 U.S. at 425, 116 S.Ct. 2211. It is not surprising, then, that the determination of whether an award “deviates materially from what would be reasonable compensation” requires a court to compare verdicts sustained by New York courts in similar cases. See id. (citing, e.g., Leon v. J. & M. Peppe Realty Corp., 190 A.D.2d 400, 416, 596 N.Y.S.2d 380, 389 (1st Dep’t 1993)); see also Marcoux, 290 F.Supp.2d at 474-75. Evaluating the reasonableness of a jury award under § 5501(c) by comparing similar cases “is not optional but a legislative mandate.” Donlon, 284 A.D.2d at 16, 727 N.Y.S.2d 94. “[T]he issue of material deviation ... is a mixed question of law and fact which has been legislatively committed to judicial oversight.” Id. Under § 5501(c), a reviewing court cannot refrain from tackling the material deviation inquiry by “attempting] to use the rationale of deference to a jury verdict,” because the reviewing court is “supposed to compare analogous verdicts.” Id. “Although phrased as a direction to New York’s intermediate appellate courts, § 5501(c)’s ‘deviates materially’" }, { "docid": "16067072", "title": "", "text": "v. County of York, 768 F.2d 503, 507 (3d Cir.1985) (\"plausible nexus”). . In reaching this conclusion, the Court has implicitly determined that there is no warrant for a new trial on the municipal constitutional liability issue. . It is unclear what standard a district court should apply in determining excessiveness where, as in this case, the jury’s award encompasses damages for a state and federal claim. The Supreme Court in Gasperini, held that in diversity cases federal courts should apply the state standard, but the Court did not address whether federal courts should apply the state standard when determining whether a damages award pertaining to a pendent state law claim is excessive. 518 U.S. at 425-31, 116 S.Ct. 2211. District courts in this Circuit are split as to whether Gasperini requires application of the state standard to state pendent claims. Compare Carter v. Rosenberg & Estis, P.C., No. 95-CV-10439, 1998 WL 150491, at *18 n. 12 (S.D.N.Y. Mar.31, 1998) (applying federal standard to state pendent claim); Kim v. Dial Serv. Int'l, Inc., No. 96-CV-3327, 1997 WL 458783, *5 n. 2 (S.D.N.Y. Aug. 11, 1997) (same) with Bick v. City of New York, No. 95-CIV-8781, 1998 WL 190283, at *20 (S.D.N.Y. Apr.21, 1998) (applying state standard to state pendent claims); Shea v. Icelandair, 925 F.Supp. 1014, 1020 (S.D.N.Y. 1996) (same). . The Court allowed the jury to be told that Arnold was a convicted felon, see FRCP 609, but ruled that knowledge that the conviction was for rape would be prejudicial under FRCP 403. . The New York statute of limitations for intentional torts is one year. See CPLR § 215. The statute of limitations in New York for the federal Violence Against Women Act (''VAWA”), 42 U.S.C. § 13981(c), which provides a civil cause of action in favor of the victims of gender-motivated violent crimes, is three years. See Ericson v. Syracuse Univ., 35 F.Supp.2d 326, 329-30 (S.D.N.Y.1999). .In respect to counsel fees, plaintiff should be mindful of the time constraints under FRCP 54(d)(2)(B). See Weyant v. Okst, 198 F.3d 311, 313-16 (2d Cir.1999)." }, { "docid": "16882062", "title": "", "text": "verdict and a new trial.” Shu-Tao Lin v. McDonnell Douglas Corp., 742 F.2d 45, 49 (2d Cir.1984). In considering motions for a new trial and/or remittitur, “[t]he role of the district court is to determine whether the jury’s verdict is within the confines set by state law, and to determine, by reference to federal standards developed under Rule 59, whether a new trial or remittitur should be ordered.” Gasperini v. Ctr. for Humanities, Inc., 518 U.S. 415, 435, 116 S.Ct. 2211, 135 L.Ed.2d 659 (1996) (quoting Browning-Ferris Indus. of Vt., Inc. v. Kelco Disposal, Inc., 492 U.S. 257, 279, 109 S.Ct. 2909, 106 L.Ed.2d 219 (1989)). Under New York law, a court “shall determine that an award is excessive or inadequate if it deviates materially from what would be reasonable compensation.” N.Y. C.P.L.R. § 5501(c); Okraynets v. Metro. Transp. Auth., 555 F.Supp.2d 420, 439 (S.D.N.Y.2008) (“[T]he standard under § 5501(c) is not whether an award deviates at all from past awards — it is whether an award deviates materially from reasonable compensation.”). To determine whether a jury award is excessive within the meaning of § 5501(c), New York courts compare it with awards in similar cases. Gasperini, 518 U.S. at 425, 116 S.Ct. 2211 (citing Leon v. J & M Peppe Realty Corp., 190 A.D.2d 400, 596 N.Y.S.2d 380, 389 (1st Dep’t 1993)); Johnston v. Joyce, 192 A.D.2d 1124, 596 N.Y.S.2d 625, 626 (4th Dep’t 1993). Applying the federal standard of review, we review a district court’s denial of remittitur for abuse of' discretion. Cross v. N.Y.C. Transit Auth., 417 F.3d 241, 258 (2d Cir.2005); see Gasperini 518 U.S. at 438, 116 S.Ct. 2211. When reviewing a trial court’s decision for abuse of discretion, the degree of deference we give to the trial court depends on the type of case being reviewed. Payne v. Jones, 711 F.3d 85, 100 (2d Cir.2013) (citing Henry J. Friendly, Indiscretion About Discretion, 31 Emory L.J. 747, 764 (1982)) (“Some cases call for application of the abuse of discretion standard in a ‘broad’ sense and others in a ‘narrow’ one.”). In Dagnello v. Long Island" }, { "docid": "12180280", "title": "", "text": "a specific or definitive measure of damages for pain and suffering is “ ‘impossible.’ ” Braun v. Ahmed, 127 A.D.2d 418, 424, 515 N.Y.S.2d 473 (2d Dep’t 1987) (quoting Botta v. Brunner, 26 N. J. 82, 138 A.2d 713, 718 (1958)). The Braun Court said: “ ‘There is and there can be no fixed basis, table, standard or mathematical rule which will serve as an accurate index and guide to the establishment of damage awards for personal injuries. And it is equally plain that there is no measure by which the amount of pain and suffering endured by a particular human can be calculated.... [T]he impossibility of recognizing or of isolating fixed levels or plateaus of suffering must be conceded.’ ” Id. (quoting Botta, 138 A.2d at 718-19). It is for this reason that “the determination of what amount would [“deviate materially” under § 5501(c) ] is one of the most difficult decisions required to be made by a court.... [Similar injuries to two different plaintiffs may result in significantly different levels of pain and suffering, which makes the task of comparing the injuries in one case to those in another most formidable.”] Asbestos Litig., 9 F.Supp.2d at 311 (citation and quotation omitted); see also Geressy v. Digital Equip. Corp., 980 F.Supp. 640, 656 (E.D.N.Y.1997). “To determine whether a particular award ‘deviates materially from what would be reasonable compensation,’ New York state courts look to awards approved in similar cases.” Gasperini, 518 U.S. at 425, 116 S.Ct. 2211. Prior awards are regarded as instructive, but not binding, by courts performing § 5501(c) review. See Asbestos Litig., 9 F.Supp.2d at 311 (citing Shea v. Icelandair, 925 F.Supp. 1014, 1021 (S.D.N.Y.1996), and Senko v. Fonda, 53 A.D.2d 638, 639, 384 N.Y.S.2d 849, 851 (2d Dep’t 1976)). “Trial judges have the unique opportunity to consider the evidence in the living courtroom context. ...” Gasperini, 518 U.S. at 438, 116 S.Ct. 2211 (quotation omitted). But because the amount of damages to be awarded is primarily a question of fact for the jury, a court should exercise its discretionary remittitur power sparingly. See Duncan v." }, { "docid": "23176966", "title": "", "text": "money judgment ... in which it is contended that the award is excessive or inadequate ... shall determine that an award is excessive or inadequate if it deviates materially from what would be reasonable compensation.” N.Y. C.P.L.R. § 5501(c). This standard requires a more exacting review than the “shocks the conscience” standard generally applied by federal courts. See Gasperini, 518 U.S. at 424, 116 S.Ct. 2211. However, “ ‘[t]he proper role of the trial and appellate courts in the federal system in reviewing the size of jury verdicts is ... a matter of federal law.’ ” Id. at 437, 116 S.Ct. 2211 (quoting Donovan v. Penn Shipping Co., 429 U.S. 648, 649, 97 S.Ct. 835, 51 L.Ed.2d 112 (1977) (per curiam)). Under federal law, “primary responsibility for application of § 5501(c)’s ‘deviates materially’ check” is “lodge[d] in the district court, not the court of appeals.” Gasperini, 518 U.S. at 438, 116 S.Ct. 2211. In deciding a motion for remittitur, “the role of the district court is to determine whether the jury’s verdict is within the confínes set by state law.” Browning-Ferris Indus. of Vt., Inc. v. Kelco Disposal, Inc., 492 U.S. 257, 279, 109 S.Ct. 2909, 106 L.Ed.2d 219 (1989) (cited in Gasperini, 518 U.S. at 437, 116 S.Ct. 2211). This Court’s function upon review of the district court’s decision is limited to determining whether the district court abused its discretion. Id.; see also Gasperini, 518 U.S. at 438, 116 S.Ct. 2211; Cross, 417 F.3d at 258. Balsamico’s primary argument is that Patterson’s injuries only amount to “garden-variety” emotional distress because the evidence of the harms suffered was limited to Patterson’s testimony alone, and there was no evidence that any medical treatment was required. The New York courts, Balsámico argues, have limited compensatory damages in such cases to amounts below $30,000. This Court, however, has recently sustained an award of $125,000 for “subjective distress” not accompanied by medical treatment. Meacham v. Knolls Atomic Power Lab., 381 F.3d 56, 77-78 (2d Cir.2004), vacated on other grounds sub nom. KAPL, Inc. v. Meacham, 544 U.S. 957, 125 S.Ct. 1731, 161 L.Ed.2d 596" }, { "docid": "10536503", "title": "", "text": "I did, however, instruct the jury that the basic difference between the two statutory schemes related to who may be held liable. See id.; Bush v. Raymond Corp., Inc. 954 F.Supp. 490, 496 (N.D.N.Y.1997). Specifically, the jury was instructed that Aaron could not be held liable under Title VII. While defendants now appear to suggest that the jury should have been required to apportion damages between the two defendants and between the Title VII and HRL claims, this concern does not appear to have been raised at trial. Bick v. City of New York, 1998 WL 190283, *21 (S.D.N.Y. Apr.21, 1998) (“The jury was not directed to identify whether its award was under federal or state law since the standards are the same, and neither party requested such an inquiry.”) (internal citations omitted); Luciano v. Olsten Corp., 912 F.Supp. 663, 675 (E.D.N.Y.1996) (“[Defendants did not request the Court to direct the jury to identify the particular law under which the damages were being awarded.]”), aff'd, 110 F.3d 210 (2d Cir.1997); see also Anderson v. YARP Restaurant, Inc., 1997 WL 27043, *6-*7 (S.D.N.Y. Jan.23, 1997) (“Because the standard of proof for sexual harassment claims and for damages is the same under Title VII as that under the HRL, the jury was not asked to demarcate which portion of the damage award was based upon Title VII and which portion was based upon the HRL.”). In any .case, the jury plainly found Aaron liable under plaintiffs’ HRL and IIED claims, and F & K Supply liable under plaintiffs’ Title VII and HRL claims. As compensatory damages, the jury awarded as follows: $885,000 to Funk, representing $850,000 for emotional pain and anguish and $35,000 for lost wages and benefits; and $465,000 to Michetti, representing $450,000 for emotional pain and anguish and $15,000 for lost wages and benefits. Additionally, the jury concluded that both Funk and Michetti were entitled to punitive damages against defendants Aaron and F & K Supply.- The jury awarded each plaintiff punitive damages of $50,000 and $1 against Aaron and F & K Supply, respectively. The issue that frequently arises" }, { "docid": "12180282", "title": "", "text": "Hillebrandt, 239 A.D.2d 811, 813-14, 657 N.Y.S.2d 538, 540 (3d Dep’t 1997) (citations omitted). The “material deviation” standard of § 5501(c) “has been understood by both courts and commentators as providing courts with greater latitude than the former ‘shocks the conscience’ standard for reviewing and altering jury awards.” Asbestos Litig., 9 F.Supp.2d at 310 (citing Gasperini, 518 U.S. at 424-25, 116 S.Ct. 2211). A district court must examine the evidence underlying the award and compare the verdict to awards in similar cases. See, e.g., Bachir v. Transoceanic Cable Ship Co., 2002 WL 413918, at *11 (S.D.N.Y. Mar. 15, 2002). Nevertheless, great deference is given to the interpretation of evidence by a jury. See, e.g., Abar v. Freightliner Corp., 208 A.D.2d 999, 1001, 1002, 617 N.Y.S.2d 209 (3rd Dep’t 1994); see also Bachir, 2002 WL 413918 at *11 (refusing to grant a new trial and deferring to the jury because its award was not against the weight of the evidence, even though it was “on the higher end of the range”); Katt v. City of New York, 151 F.Supp.2d 313, 368 (S.D.N.Y.2001). Because awarding damages is the province of the jury, it is important for a court performing a § 5501(c) review of a pain and suffering damages award to identify the “upper limit” for such an award. See Asbestos Litig., 9 F.Supp.2d at 312. By so doing, a court can order remittitur only to the extent necessary to comply with the “deviates materially” standard, while still giving effect to as much of the jury’s award as possible. See Miraglia v. H & L Holding Corp., 36 A.D.3d 456, 456-57, 828 N.Y.S.2d 329 (1st Dep’t 2007) (awarding maximum amount supported by evidence); see also Singleton v. City of New York, 496 F.Supp.2d 390, 394 (S.D.N.Y.2007) (noting that a court should be as least intrusive as possible in reducing the amount of a jury award); In re New York Asbestos Litig., 847 F.Supp. 1086, 1096 (S.D.N.Y.1994) (stating that award should be maximum amount that would not be excessive). “Although possessing the power to set aside an excessive jury verdict, a trial court" }, { "docid": "12918118", "title": "", "text": "v. Vivek Purmasir & Assocs, Inc., 99 Civ. 2428(RJD), 2000 WL 1523286, at *7 (E.D.N.Y. Feb. 8, 2000) (\"Under the NYHRL, plaintiff is entitled to seek compensatory damages, including damages for mental anguish and humiliation”) Though the plaintiff requested a specific instruction that the plaintiff was not seeking back pay, it failed to provide the Court with particular language, or a particular suggestion as to where such an instruction should have been inserted into this charge. (Tr 846-47.) As the Court stated at the charging conference, \"I was paying attention to this issue, and I don't think I put anything that specifically suggests anything like that, that is, that the plaintiff would be entitled to back pay. I talk about expenses that she may have borne, emotional pain and suffering, mental anguish, humiliation and discomfort.” (Id. 846) Upon reviewing the transcript and charge in light of the defendants’ post-trial motion, the Court finds no basis for a different conclusion here . New York law applies a stricter standard than the \"reasonable range” test, instructing reviewing courts to determine whether the challenged award \"materially deviates from what would be reasonable compensation.” N.Y. Civ. Prac. Law & Rules § 5501(c). See also Armstrong World Indus. 72 F.3d at 1011 (New York standard is \"less deferential to the jury’s verdict than the federal standard”) While a court should apply federal law in determining the excessiveness of a damages award on a federal cause of action, it should apply New York law to test damages awards on claims governed by New York law. See, e.g., Gasperini v. Center for Humanities, Inc., 518 U.S. 415, 430-31, 116 S.Ct. 2211, 135 L.Ed.2d 659 (1996). Here, where the plaintiff may be compensated for emotional distress damages under both federal and state causes of action, the Court will apply the more deferential federal standard in evaluating the jury’s award. See, e.g.,Kim v. Dial Svc. Int’l, Inc., No 96 CIV 3327(DLC), 1997 WL 458783, at *5 n. 2 (S.D.N.Y. Aug. 11, 1997) (using federal standards where not compelled to apply pendent state law). Strictly speaking, perhaps the Court should" }, { "docid": "10536508", "title": "", "text": "1064 (2d Cir.1992), cert. denied, 507 U.S. 972, 113 S.Ct. 1415, 122 L.Ed.2d 785 (1993)). Simply put, remittitur is “the process by which a court compels a plaintiff to choose between reduction of an excessive verdict and a new trial.” Earl v. Bouchard Transp. Co., 917 F.2d 1320,1328 (2d Cir.1990) (quoting Shu-Tao Lin v. McDonnell Douglas Corp., 742 F.2d 45, 49 (2d Cir.1984)). Because plaintiffs’ compensatory awards were made pursuant to the HRL, I look to New York State law in determining whether the awards are excessive. See Gasperi-ni v. Center for Humanities, Inc., 518 U.S. 415, 437-38, 116 S.Ct. 2211, 135 L.Ed.2d 659 (1996) (holding that federal district court must apply New York state law in determining whether damage awards on diversity claims are excessive); Consorti v. Armstrong World Indus., Inc., 103 F.3d 2, 4 (2d Cir.1995); Anderson, 1997 WL 190283, at *6-7. The relevant law is set forth in C.P.L.R. S 5501(c) (McKinney 1995). That section provides in part as follows: In reviewing a money judgment ... in which it is contended that the award is excessive or inadequate and that a new trial should have been granted unless a stipulation is entered to a different award, the appellate division shall determine that an award is excessive or inadequate if it deviates materially from what would be reasonable compensation. Id. Although directed at the appellate divisions, section 5501(c) applies to trial courts as well. See Gasperini, 518 U.S. at 431, 116 S.Ct. 2211. .In determining whether a jury-award is excessive under this standard, New York courts review the evidence adduced at trial in support of the challenged damage award and compare it to the awards in similar cases. Gasperini, 518 U.S. at 425, 116 S.Ct. 2211 (citing New York cases). Here, the specific evidence adduced at trial of the damages suffered by each plaintiff has already been discussed. See infra discussion at II(A)(4)(ii). Upon review, I now note the paucity of evidence regarding the'magnitude, severity and duration of the emotional anguish suffered by plaintiffs. After canvassing comparable cases, I find that the jury’s awards for emotional damages to" }, { "docid": "12180278", "title": "", "text": "standard, as construed by New York’s courts, instructs state trial judges as well.” Gasperini 518 U.S. at 425, 116 S.Ct. 2211 (citing, inter alia, Inya v. Ide Hyundai, Inc., 209 A.D.2d 1015, 619 N.Y.S.2d 440 (4th Dep’t 1994), Cochetti v. Gralow, 192 A.D.2d 974, 975, 597 N.Y.S.2d 234, 235 (3d Dep’t 1993) (“settled law” that trial courts conduct “materially deviates” inquiry), and Lightfoot v. Union Carbide Corp., 901 F.Supp. 166, 169 (S.D.N.Y.1995) (C.P.L.R.5501(c)’s “materially deviates” standard “is pretty well established as applicable to [state] trial and appellate courts.”)). Because New York trial courts apply § 5501(c), under Gasperini so do federal district courts sitting in diversity. See Erie R.R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938). The United States Supreme Court has specifically held that § 5501(c) — judicial review of a jury’s award of damages in New York — is “manifestly substantive.” Gasperini, 518 U.S. at 429, 116 S.Ct. 2211. “[W]hen New York substantive law governs a claim for relief, New York law and decisions guide the allowable damages.” Id. at 437, 116 S.Ct. 2211. Federal district courts are “capable of performing the checking function” of § 5501(c) by reference to evolving state case law. Id. As Judge Sweet has stated: “CPLR 5501(c) forces the court into the awkward position of attempting to ... (implicitly) rank the affliction of one tort victim against that of another.... To measure the impact of a tragedy in the life of one person vis-a-vis another is beyond judicial (and perhaps human) capacity.” In re Joint Eastern and Southern Dist. Asbestos Litig., 9 F.Supp.2d 307, 311 (S.D.N.Y.1998) [hereinafter Asbestos Litig.]. Although economic awards are quantifiable, awards for pain and suffering, or for loss of services and society, “do not lend themselves as easily to computation.” See id. at 311-12 (citing McDougald v. Garber, 73 N.Y.2d 246, 254, 538 N.Y.S.2d 937, 536 N.E.2d 372, 374-75 (1989)). “Measuring pain and suffering in dollars is inescapably subjective .... ” Gibbs v. United States, 599 F.2d 36, 39 (2d Cir.1979). New York’s Appellate Division has proclaimed a “ ‘universal acknowledgment’ ” that" }, { "docid": "12180281", "title": "", "text": "suffering, which makes the task of comparing the injuries in one case to those in another most formidable.”] Asbestos Litig., 9 F.Supp.2d at 311 (citation and quotation omitted); see also Geressy v. Digital Equip. Corp., 980 F.Supp. 640, 656 (E.D.N.Y.1997). “To determine whether a particular award ‘deviates materially from what would be reasonable compensation,’ New York state courts look to awards approved in similar cases.” Gasperini, 518 U.S. at 425, 116 S.Ct. 2211. Prior awards are regarded as instructive, but not binding, by courts performing § 5501(c) review. See Asbestos Litig., 9 F.Supp.2d at 311 (citing Shea v. Icelandair, 925 F.Supp. 1014, 1021 (S.D.N.Y.1996), and Senko v. Fonda, 53 A.D.2d 638, 639, 384 N.Y.S.2d 849, 851 (2d Dep’t 1976)). “Trial judges have the unique opportunity to consider the evidence in the living courtroom context. ...” Gasperini, 518 U.S. at 438, 116 S.Ct. 2211 (quotation omitted). But because the amount of damages to be awarded is primarily a question of fact for the jury, a court should exercise its discretionary remittitur power sparingly. See Duncan v. Hillebrandt, 239 A.D.2d 811, 813-14, 657 N.Y.S.2d 538, 540 (3d Dep’t 1997) (citations omitted). The “material deviation” standard of § 5501(c) “has been understood by both courts and commentators as providing courts with greater latitude than the former ‘shocks the conscience’ standard for reviewing and altering jury awards.” Asbestos Litig., 9 F.Supp.2d at 310 (citing Gasperini, 518 U.S. at 424-25, 116 S.Ct. 2211). A district court must examine the evidence underlying the award and compare the verdict to awards in similar cases. See, e.g., Bachir v. Transoceanic Cable Ship Co., 2002 WL 413918, at *11 (S.D.N.Y. Mar. 15, 2002). Nevertheless, great deference is given to the interpretation of evidence by a jury. See, e.g., Abar v. Freightliner Corp., 208 A.D.2d 999, 1001, 1002, 617 N.Y.S.2d 209 (3rd Dep’t 1994); see also Bachir, 2002 WL 413918 at *11 (refusing to grant a new trial and deferring to the jury because its award was not against the weight of the evidence, even though it was “on the higher end of the range”); Katt v. City of New" }, { "docid": "12918119", "title": "", "text": "courts to determine whether the challenged award \"materially deviates from what would be reasonable compensation.” N.Y. Civ. Prac. Law & Rules § 5501(c). See also Armstrong World Indus. 72 F.3d at 1011 (New York standard is \"less deferential to the jury’s verdict than the federal standard”) While a court should apply federal law in determining the excessiveness of a damages award on a federal cause of action, it should apply New York law to test damages awards on claims governed by New York law. See, e.g., Gasperini v. Center for Humanities, Inc., 518 U.S. 415, 430-31, 116 S.Ct. 2211, 135 L.Ed.2d 659 (1996). Here, where the plaintiff may be compensated for emotional distress damages under both federal and state causes of action, the Court will apply the more deferential federal standard in evaluating the jury’s award. See, e.g.,Kim v. Dial Svc. Int’l, Inc., No 96 CIV 3327(DLC), 1997 WL 458783, at *5 n. 2 (S.D.N.Y. Aug. 11, 1997) (using federal standards where not compelled to apply pendent state law). Strictly speaking, perhaps the Court should evaluate the federal remitti-tur standards of the damage award' against DiPalma, against whom liability was found under federal law, and the state standards to the award against the City, against whom the federal claim was withdrawn However, the closeness of the two standards, and the practical certainty that the City will indemnify DiPalma and thus bear the cost of the award in any event, would reduce the effort to academic punctilio. The Court further notes that the Supreme Court’s recent decision in Cooper Indus., Inc. v. Leatherman Tool Group, Inc., - U.S. -, 121 S.Ct. 1678, 149 L.Ed.2d 674 (2001), requiring de novo appellate review of punitive damages claimed to violate due process, is not applicable to this case, in which no constitutional issue is raised, and the defendants’ objection is to compensatory, not punitive, damages . Cases cited by defendants are not comparable. See, e.g., Carter V: Rosenberg & Estis, 1998 WL 150491, at *20 (S.D.N.Y. March 31, 1998) (remitting $75,000 award to $15,000 where \"[plaintiff's] statements regarding her physical condition made clear that" }, { "docid": "22931784", "title": "", "text": "damages award is excessive “if it deviates materially from what would be reasonable compensation.” N.Y. C.P.L.R. § 5501(c). In Transit Authority, the New York Court of Appeals identified three factors to be considered in reviewing mental anguish compensatory damages awarded by the State Commissioner of Human Rights in a discrimination case: “whether the relief was reasonably related to the wrongdoing, whether the award was supported by evidence before the Commissioner, and how it compared with other awards for similar injuries.” N.Y. City Trans. Auth., 78 N.Y.2d at 219, 573 N.Y.S.2d 49, 577 N.E.2d 40. The district court here wrote that, Whether I analyze it under the “deviates materially” standard of § 5501(c) or the more nuanced approach of Transit Au thority, I cannot sustain the jury’s award of $2.5 million as compensation for Brady’s emotional distress. With respect to § 5501(c), the award does deviate materially from other awards that the parties have cited.... And under the Transit Authority analysis, the third prong—requiring a comparison to other awards—compels a similar result. Brady v. Wal-Mart Stores, Inc., 455 F.Supp.2d at 198. The court, however, did “discern at least some daylight, if not much, between ‘deviates materially’ and the standard that applies under the NYHRL.” Id. at 196. The court then determined the magnitude of the remitti-tur by reference to three state cases. See id. at 201. Each of these cases was decided after Transit Authority. See Tiffany & Co. v. Smith, 224 A.D.2d 332, 638 N.Y.S.2d 454, 454 (1996); Sogg v. Am. Airlines, Inc., 193 A.D.2d 153, 603 N.Y.S.2d 21, 27-28 (1993); Cavagnuolo v. Baker & McKenzie, No. 1B-E-D-86-115824, 1993 WL 766865, at *9 (N.Y.Div. of Human Rights Dec.17, 1993). The district court used those cases to help it identify “the greatest amount that would not be excessive.” Brady v. Wal-Mart Stores, Inc., 455 F.Supp.2d at 201. We think it is uncertain which of the two standards the district court used in determining the amount of the remittitur. Its citations do not clarify the matter: two of the cases (Tiffany & Co. and Sogg) appear to use the “deviates materially” standard," }, { "docid": "22754638", "title": "", "text": "be applicable in a federal court sitting in diversity.”); see also Tr. of Oral Arg. 4-5, 25; Consorti, 72 F. 3d, at 1011. Although CPLR § 5501(c) is less readily classified, it was designed to provide an analogous control. New York’s Legislature codified in § 5501(c) a new standard, one that requires closer court review than the common-law “shock the conscience” test. See supra, at 422-423. More rigorous comparative evaluations attend application of §5501(c)’s “deviates materially” standard. See supra, at 423-425. To foster predictability, the legislature required the reviewing court, when overturning a verdict under § 5501(c), to state its reasons, including the factors it considered relevant. See CPLR § 5522(b); supra, at 423-424. We think it a fair conclusion that CPLR § 5501(c) differs from a statutory cap principally “in that the maximum amount recoverable is not set forth by statute, but rather is determined by case law.” Brief for City of New York as Amicus Curiae 11. In sum, § 5501(c) contains a procedural instruction, see supra, at 426, but the State’s objective is manifestly substantive. Cf. S. A. Healy Co. v. Milwaukee Metropolitan Sewerage Dist., 60 F. 3d 305, 310 (CA7 1995). It thus appears that if federal courts ignore the change in the New York standard and persist in applying the “shock the conscience” test to damage awards on claims governed by New York law, “‘substantial’ variations between state and federal [money judgments]” may be expected. See Hanna, 380 U. S., at 467-468. We therefore agree with the Second Circuit that New York’s check on excessive damages implicates what we have called Erie’s “twin aims.” See supra, at 428. Just as the Erie principle precludes a federal court from giving a state-created claim “longer life . . . than [the claim] would have had in the state court,” Ragan, 337 U. S., at 533-534, so Erie precludes a recovery in federal court significantly larger than the recovery that would have been tolerated in state court. B CPLR § 5501(c), as earlier noted, see supra, at 425, 426, is phrased as a direction to the New York" }, { "docid": "22931783", "title": "", "text": "the employer’s knowledge that it may be acting in violation of federal law, not its awareness that it is engaging in discrimination.” Kolstad v. Am. Dental Ass’n, 527 U.S. 526, 535, 119 S.Ct. 2118, 144 L.Ed.2d 494 (1999). In other words, for punitive damages to be awarded, Brady had to show that Wal-Mart “discriminate[d] in the face of a perceived risk that its actions w[ould] violate federal law.” Id. at 536, 119 S.Ct. 2118. There was ample evidence of such a perceived risk here to justify the award of punitive damages. G. Remittitur Because the compensatory damages were allocated entirely to the state law claim, the remittitur is evaluated under state law. Appellants assert that the district court improperly evaluated its remit-titur application under the standard set forth in New York City Transit Authority v. State Division of Human Rights, 78 N.Y.2d 207, 219, 573 N.Y.S.2d 49, 577 N.E.2d 40 (N.Y.1991), rather than the standard laid out in section 5501(c) of the New York Civil Practice Law and Rules. Under the statutory provision, a compensatory damages award is excessive “if it deviates materially from what would be reasonable compensation.” N.Y. C.P.L.R. § 5501(c). In Transit Authority, the New York Court of Appeals identified three factors to be considered in reviewing mental anguish compensatory damages awarded by the State Commissioner of Human Rights in a discrimination case: “whether the relief was reasonably related to the wrongdoing, whether the award was supported by evidence before the Commissioner, and how it compared with other awards for similar injuries.” N.Y. City Trans. Auth., 78 N.Y.2d at 219, 573 N.Y.S.2d 49, 577 N.E.2d 40. The district court here wrote that, Whether I analyze it under the “deviates materially” standard of § 5501(c) or the more nuanced approach of Transit Au thority, I cannot sustain the jury’s award of $2.5 million as compensation for Brady’s emotional distress. With respect to § 5501(c), the award does deviate materially from other awards that the parties have cited.... And under the Transit Authority analysis, the third prong—requiring a comparison to other awards—compels a similar result. Brady v. Wal-Mart Stores," }, { "docid": "19169665", "title": "", "text": "trial on the plaintiffs accepting damages in a reduced amount.” Tingley Sys., Inc. v. Norse Sys., Inc., 49 F.3d 93, 96 (2d Cir.1995) (citing Phelan v. Local 305 of the United Ass’n of Journeymen and Apprentices of the Plumbing & Pipefitting Indus., 973 F.2d 1050, 1064 (2d Cir.1992)); see also Kirsch, 148 F.3d at 165. A district court must apply New York law to evaluate whether awards in cases decided under New York law are excessive. See Gasperini v. Center for Humanities, Inc., 518 U.S. 415, 437-438, 116 S.Ct. 2211, 135 L.Ed.2d 659 (1996). Pursuant to N.Y. C.P.L.R. § 5501(c), a court should reduce an award when it “deviates materially” from reasonable compensation as measured by awards in similar cases. See N.Y. C.P.L.R. § 5501(c); Gasperini, 518 U.S. at 425, 116 S.Ct. 2211. The “deviates materially” standard is less deferential to jury verdicts than the “shock the conscience” standard applied by the federal courts because “it does not permit a reviewing court to sustain a damage award that is out of line with other awards for similar injuries, even if the amount the jury awarded was not shocking to a court’s conscience.” Fowler v. New York Transit Auth., No. 96 Civ. 6796, 2001 WL 83228, at *10 (S.D.N.Y. Jan.31, 2001). Upon his termination Shannon was in a state of shock. See Tr. at 192. Shannon testified that since his termination he has experienced anxiety, stress and depression. See id. His anxiety and depression was exacerbated by his subsequent unsuccessful job search, which he found humiliating and caused Mm to lose self-esteem. See id. at 192-93. Shannon further testified that his firing has caused him to lose interest in sex and that he has been unable to have sex. See id. at 194. His interest in socializing has diminished, he is tired, irritable, and has had trouble sleeping. See id. at 195-98. Shannon’s wife corroborated most of this testimony, stating that Shannon is quieter than he used to be, experiences sleeplessness, and is more withdrawn. See id. at 309-12. As a result of these symptoms, Shannon sought the help of Ms" }, { "docid": "12180277", "title": "", "text": "518 U.S. at 425, 116 S.Ct. 2211. It is not surprising, then, that the determination of whether an award “deviates materially from what would be reasonable compensation” requires a court to compare verdicts sustained by New York courts in similar cases. See id. (citing, e.g., Leon v. J. & M. Peppe Realty Corp., 190 A.D.2d 400, 416, 596 N.Y.S.2d 380, 389 (1st Dep’t 1993)); see also Marcoux, 290 F.Supp.2d at 474-75. Evaluating the reasonableness of a jury award under § 5501(c) by comparing similar cases “is not optional but a legislative mandate.” Donlon, 284 A.D.2d at 16, 727 N.Y.S.2d 94. “[T]he issue of material deviation ... is a mixed question of law and fact which has been legislatively committed to judicial oversight.” Id. Under § 5501(c), a reviewing court cannot refrain from tackling the material deviation inquiry by “attempting] to use the rationale of deference to a jury verdict,” because the reviewing court is “supposed to compare analogous verdicts.” Id. “Although phrased as a direction to New York’s intermediate appellate courts, § 5501(c)’s ‘deviates materially’ standard, as construed by New York’s courts, instructs state trial judges as well.” Gasperini 518 U.S. at 425, 116 S.Ct. 2211 (citing, inter alia, Inya v. Ide Hyundai, Inc., 209 A.D.2d 1015, 619 N.Y.S.2d 440 (4th Dep’t 1994), Cochetti v. Gralow, 192 A.D.2d 974, 975, 597 N.Y.S.2d 234, 235 (3d Dep’t 1993) (“settled law” that trial courts conduct “materially deviates” inquiry), and Lightfoot v. Union Carbide Corp., 901 F.Supp. 166, 169 (S.D.N.Y.1995) (C.P.L.R.5501(c)’s “materially deviates” standard “is pretty well established as applicable to [state] trial and appellate courts.”)). Because New York trial courts apply § 5501(c), under Gasperini so do federal district courts sitting in diversity. See Erie R.R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938). The United States Supreme Court has specifically held that § 5501(c) — judicial review of a jury’s award of damages in New York — is “manifestly substantive.” Gasperini, 518 U.S. at 429, 116 S.Ct. 2211. “[W]hen New York substantive law governs a claim for relief, New York law and decisions guide the allowable" }, { "docid": "1026460", "title": "", "text": "at *20 (S.D.N.Y. Apr.21, 1998), a female sergeant succeeded against the New York City Police Department on her claims of harassment, gender discrimination, and retaliation. The jury awarded the plaintiff $750,000 in compensatory damages. The evidence at trial included testimony from the plaintiff, her therapist, and a supervising officer, who all suggested that her distress was “far more than minimal injury.” Id. at *23. In fact, the corroborated testimony showed that the plaintiff was “devastated” and at times “hysterical.” The Plaintiff also received treatment from a certified social worker trained in psychotherapy and medication from a psychiatrist. She was diagnosed as suffering from anxiety, depression and feelings of powerlessness and “suicidal ideation.” Id. at *24. In addition, at the time of trial the plaintiff continued to receive treatment, although she was described as improved. Based on this evidence, the court reduced the jury award from $750,000.00 to $100,000.00. At the high end of the spectrum are awards that are well in excess of $100,000, in cases that generally contain evidence of debilitating and permanent alterations in lifestyle. See, e.g., Ramirez v. Off-Track Betting, 112 F.3d 38 (2d Cir.1997) (award of $500,000 appropriate where the plaintiffs psychiatric difficulties had become so severe after his discharge that he was unemployable); Shea v. Icelandair, 925 F.Supp. 1014, 1021 (S.D.N.Y.1996) (awarding damages of $175,000 for mental anguish exacerbated by Parkinson’s disease and a heart condition); see also Town of Hempstead v. State Div. of Human Rights, 233 A.D.2d 451, 649 N.Y.S.2d 942 (2d Dep’t 1996) (awarding $500,000 for “pervasive and relentless” sexual harassment of a former victim of child sex abuse under New York state law under the “deviates materially” standard). The New York “deviates materially” standard is less deferential to a jury verdict than the federal “shock the conscience” standard. The cases cited above that have upheld awards for emotional distress in excess of $100,000 illustrate the shocking nature of the award in this case. Here, there was no evidence of permanency, debilitation, or physical manifestations of distress. At the trial Rainone, his wife, and Doctor Gary Springstubb, who is a psychologist, testified" }, { "docid": "22754637", "title": "", "text": "of forum-shopping and avoidance of inequitable administration of the laws.” Hanna v. Plumer, 380 U. S. 460, 468 (1965). Informed by these decisions, we address the question whether New York’s “deviates materially” standard, codified in CPLR § 5501(c), is outcome affective in this sense: Would “application of the [standard]... have so important an effect upon the fortunes of one or both of the litigants that failure to [apply] it would [unfairly discriminate against citizens of the forum State, or] be likely to cause a plaintiff to choose the federal court”? Id., at 468, n. 9. We start from a point the parties do not debate. Gasper-ini acknowledges that a statutory cap on damages would supply substantive law for Erie purposes. See Reply Brief for Petitioner 2 (“[T]he state as a matter of its substantive law may, among other things, eliminate the availability of damages for a particular claim entirely, limit the factors a jury may consider in determining damages, or place an absolute cap on the amount of damages available, and such substantive law would be applicable in a federal court sitting in diversity.”); see also Tr. of Oral Arg. 4-5, 25; Consorti, 72 F. 3d, at 1011. Although CPLR § 5501(c) is less readily classified, it was designed to provide an analogous control. New York’s Legislature codified in § 5501(c) a new standard, one that requires closer court review than the common-law “shock the conscience” test. See supra, at 422-423. More rigorous comparative evaluations attend application of §5501(c)’s “deviates materially” standard. See supra, at 423-425. To foster predictability, the legislature required the reviewing court, when overturning a verdict under § 5501(c), to state its reasons, including the factors it considered relevant. See CPLR § 5522(b); supra, at 423-424. We think it a fair conclusion that CPLR § 5501(c) differs from a statutory cap principally “in that the maximum amount recoverable is not set forth by statute, but rather is determined by case law.” Brief for City of New York as Amicus Curiae 11. In sum, § 5501(c) contains a procedural instruction, see supra, at 426, but the State’s objective" }, { "docid": "20352949", "title": "", "text": "639, 384 N.Y.S.2d 849, 851 (2d Dep’t 1976) (prior awards ‘may guide and enlighten the court[s]’ ‘in the exercise of their discretion.’).” Martell, 748 F.2d at 750. The standard for determining excessiveness and the appropriateness of remittitur in New York is somewhat ambiguous. Prior to 1986, New York law employed the same standard as the federal courts, see Matthews v. CTI Container Transport Int’l Inc., 871 F.2d 270, 278 (2d Cir.1989), which authorized re-mittitur only if the jury’s verdict was so excessive that it “shocked the conscience of the court.” See, e.g., Neal v. Rainbow House Fruits, 87 A.D.2d 511, 447 N.Y.S.2d 487, 488 (1982); Juiditta v. Bethlehem Steel Corp., 75 A.D.2d 126, 428 N.Y.S.2d 535, 543 (1980); Petosa v. City of New York, Dep’t of Sanitation, 63 A.D.2d 1016, 406 N.Y.S.2d 354, 355 (1978). In 1986, New York State legislated a new standard that required the Appellate Division of the Supreme Court to exercise closer control over jury awards. The new CPLR § 5501(c) provides, In reviewing a money judgment in an action in which an itemized verdict is required ... in which it is -contended that the award is excessive or inadequate and that a new trial should have been granted unless a stipulation is entered to a different award, the appellate division shall determine that an award is excessive or inadequate if it deviates materially from what would be reasonable compensation. N.Y.Civ.Prae.L. & R. § 5501(c) (McKinney Supp.1995) (emphasis added). This standard requires the reviewing court to determine the range it regards as reasonable, and to determine whether the particular jury award deviates materially from that range, taking corrective action if it does. Material deviation from reasonableness is less than that deviation required to find an award so excessive as to “shock the conscience.” Because this statute makes explicit mention only of the Appellate Division, courts have expressed some confusion as to whether its standard applies also at the trial level. See, e.g., In re Joint E. & S. Dists. Asbestos Litig., 798 F.Supp. 925, 936-37 (E. & S.D.N.Y.1992) (“McPadden et al.”), rev’d on other grounds, 995" } ]

[ { "docid": "23080268", "title": "", "text": "device or chemical compound disclose an operative process for reproducing the article or product.” Authority cited for this proposition was the Cohn, Marden Bifocal and other cases. Implicit in all of these cases is the concept of a certain degree of knowledge possessed by one skilled in the arts involved concerning the disclosure of the prior publication and the concept which was sought to be patented, to the end that this knowledge taken with the disclosure of the printed publications, was sufficient to place the disclosed invention in the possession of the public. To the extent, if any, that these decisions may conflict with this analysis of the Cohn case, we disagree with them and do not find them conclusive of the issue here. In the Michalek case, the court stated that skilled workers would, as a matter of course, be able to utilize the process disclosed by the reference to get results within the limits of the product claims of the application at bar. We think this fact situation is sufficient to distinguish this case. The Board of Appeals cited Merck and Co., Inc., v. Marzall, 197 F. 2d 206, 93 USPQ 355. Contrary to the Board of Appeals’ position, this case is believed to substantiate the conclusions we have here reached. The court stated in the Merck case: We are dealing solely with an application for a patent on the compound itself. Such an application must be denied if there has been any prior disclosure of the compound, even though no practical means for its isolation or manufacture was previously known. [Emphasis ours.] In 197 F. 2d at page 208, the court in footnote 2 sets forth the knowledge which existed at the time the invention was made. It is therein stated: 2. A witness called by plantiffs-appellants testified on cross-examination: Q. Now, with thiamin monobromide at hand, would there have been any difficulty for you as an organic chemist to prepare the thiamin mononitrate? A. I think if I had been asked at the time that this application was filed to prepare thiamin mononitrate I would have" } ]

[ { "docid": "5854860", "title": "", "text": "Fields affidavit, which states that the authors of Nomura did not make the disclosed dicarboxylic acid TMBP and dimethyl ester TMBP compounds, overcomes the PTO’s rejection. It is urged that Donohue I and In re Samour, 571 F.2d 559, 197 USPQ 1 (CCPA 1978), require, inter alia, that a 35 U.S.C. § 102(b) rejection based on a primary reference disclosing a claimed compound in conjunction with one or more references which teach how to make that compound, should be sustained only if the claimed compound was actually made. We disagree. It is well settled that prior art under 35 U.S.C. § 102(v) must sufficiently describe the claimed invention to have placed the public in possession of it. In re Sasse, 629 F.2d 675, 681, 207 USPQ 107, 111 (CCPA 1980); In re Samour, 571 F.2d at 562, 197 USPQ at 4; see also Reading & Bates Construction Co. v. Baker Energy Resources Corp., 748 F.2d 645, 651-52, 223 USPQ 1168, 1173 (Fed.Cir.1984). Such possession is effected if one of ordinary skill in the art could have combined the publication’s description of the invention with his own knowledge to make the claimed invention. See In re LeGrice, 301 F.2d at 939, 133 USPQ at 373-74. Accordingly, even if the claimed invention is disclosed in a printed publication, that disclosure will not suffice as prior art if it was not enabling. In re Borst, 345 F.2d 851, 855, 145 USPQ 554, 557 (CCPA 1965), cert. denied, 382 U.S. 973, 86 S.Ct. 537, 15 L.Ed.2d 465 (1966). It is not, however, necessary that an invention disclosed in a publication shall have actually been made in order to satisfy the enablement requirement. In re Wiggins, 488 F.2d 538, 179 USPQ 421 (CCPA 1973) and In re Sheppard, 339 F.2d 238,144 USPQ 42 (CCPA 1964), do not support a contrary view. In those cases, the references were deemed insufficient, because they stated that attempts to prepare the claimed compounds were unsuccessful. Such failures by those skilled in the art (having possession of the information disclosed by the publication) are strong evidence that the disclosure of" }, { "docid": "3828054", "title": "", "text": "the two ring sulfur atoms and carbamoyloximino carbon atom of the claimed compounds from those of the prior art. We agree with the board’s statement that those theoretical differences do not defeat obviousness: [T]he prior art discloses two classes of related compounds, one with a single oximino substituted carbon atom between two ring sulfur atoms and the other with three intermediate carbons. The oxidation states of the substituted carbon atoms and the ring sulfur atoms are clearly different in the two classes of compounds yet both are known to exhibit pesticidal activity. The differences in the number and location of carbon atoms relative to the sulfur atoms among the compounds of the prior art references indicate that there would be a difference in oxidation state of each carbon and sulfur atom. Appellants’ burden, however, is not merely to point out that differences in oxidation state exist, but to show that the oxidation states of the atoms in his compounds were different from what the prior art would have suggested. (2) Enablement References relied upon to support a rejection under 35 USC 103 must provide an enabling disclosure, i. e., they must place the claimed invention in the possession of the public. In re Brown, 329 F.2d 1006, 1011, 51 CCPA 1254, 1259, 141 USPQ 245, 249 (1964). An invention is not “possessed” absent some known or obvious way to make it. In re Hoeksema, 399 F.2d 269, 274, 55 CCPA 1493, 1500, 158 USPQ 596, 601 (1968). Hence, the presumption of obviousness based on close structural similarity is overcome where the prior art does not disclose or render obvious a method for making the claimed compound. Id. at 1500, 399 F.2d at 274, 158 USPQ at 601. It can be assumed that the method disclosed for making the reference compound would provide those skilled in the art with a method for making the structurally similar claimed compounds. In re Grose, 592 F.2d 1161, 1168, 201 USPQ 57, 63 (CCPA 1979). However, the PTO can properly rely on additional references. Cf. In re Samour, 571 F.2d 559, 562-63, 197 USPQ 1," }, { "docid": "5854861", "title": "", "text": "have combined the publication’s description of the invention with his own knowledge to make the claimed invention. See In re LeGrice, 301 F.2d at 939, 133 USPQ at 373-74. Accordingly, even if the claimed invention is disclosed in a printed publication, that disclosure will not suffice as prior art if it was not enabling. In re Borst, 345 F.2d 851, 855, 145 USPQ 554, 557 (CCPA 1965), cert. denied, 382 U.S. 973, 86 S.Ct. 537, 15 L.Ed.2d 465 (1966). It is not, however, necessary that an invention disclosed in a publication shall have actually been made in order to satisfy the enablement requirement. In re Wiggins, 488 F.2d 538, 179 USPQ 421 (CCPA 1973) and In re Sheppard, 339 F.2d 238,144 USPQ 42 (CCPA 1964), do not support a contrary view. In those cases, the references were deemed insufficient, because they stated that attempts to prepare the claimed compounds were unsuccessful. Such failures by those skilled in the art (having possession of the information disclosed by the publication) are strong evidence that the disclosure of the publication was nonenabling. By contrast, the fact that the author of a publication did not attempt to make his disclosed invention does not indicate one way or the other whether the publication would have been enabling. Although In re Samour and Donohue I mention that the claimed invention in each case was apparently produced in conjunction with the anticipatory reference, this is a far cry from proclaiming that such pro duction is required to meet the enablement requirement. In re Samour, in fact, states: [W]hether or not [the claimed invention] has been made previously is not essential to a determination that a method of preparing it would have been known by, or would have been obvious to, one of ordinary skill in the art. 571 F.2d at 563 n. 6, 197 USPQ at 4 n. 6. Therefore, the statements in In re Samour and Donohue I that the claimed invention was made previously serve to point out the absence of any strong evidence of nonena-blement as in Wiggins and Sheppard. See In re Donohue," }, { "docid": "13048963", "title": "", "text": "re Prater, 56 CCPA 1381, 415 F. 2d 1393, 162 USPQ 541 (1969); In re Borkowski, 57 CCPA 946, 422 F. 2d 904, 164 USPQ 642 (1970). As such, they would be in clear contravention of the requirements of the second paragraph of section 112. In this regard, it is imperative to note that section 120 specifies that the previously filed application, the filing date of which is to be accorded to subsequent applications, must disclose the invention “in the manner provided by the first paragraph of section 112.” [Emphasis ours.] This means only that the invention claimed in the subsequent application must be disclosed in the earlier application “in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same.” Considering the disclosure of appellants’ parent application in this light, we find that it contains an enabling disclosure of the invention now claimed. Granted, that disclosure indicates that at least the specific narrow invention of claims 9-10 is not a preferred one. Nevertheless, we have no doubt that the disclosure would still teach one having ordinary skill in this art how to make and use the claimed invention. Section 120 of the statute requires nothing more in this respect. From our reading of the original disclosure in the parent case, we find it evident that appellants concluded that while either of the two viscose adjuvants improved the dry strength of the final product, the combination of the two together provided the quantitative enhancement of properties thought necessary to convince the Patent Office of the unobviousness of their contribution. It is also equally obvious, as noted by the solicitor at oral hearing, that the original broad claims were present in the case as a result of an attorney’s desire to obtain the broadest possible protection for his client. It later on transpired that appellants had been too restrictive in their judgment of patentable merit. The Patent Office determined that not only the claims reciting both adjuvants but" }, { "docid": "2608357", "title": "", "text": "their favor. According to appellants: * * * The Court’s decision in In re Sporck (1962), 49 C.C.P.A. 1039, 301 F.2d 686, 133 U.S.P.Q. 360, is particularly in point: “Obviousness is a legal conclusion which we are required to draw from facts appearing in the record or of which judicial notice may be taken. Thus before we can conclude that any disclosed invention is ‘obvious’ under the conditions specified in 35 U.S.C. 103, we must evaluate facts from which to determine (1) what was shown in the prior art at the time the invention was made, and (2) the knowledge which a person of ordinary skill in the art possessed at the time the invention was made. “Here, neither the record nor the facts of which we are able to take judicial notice supplies the factual data necessary to support the legal conclusion of obviousness of the invention at the time it was made. We are unwilling to substitute speculation and hindsight appraisal of the prior art for such factual data. For this reason we think there is a doubt as to the factual basis supporting the conclusion of the board of appeals that the invention would have been obvious to one of ordinary skill in the art of metal spinning. Under these circumstances, the doubt should be resolved in favor of the applicant. In re Devine, 46 CCPA 725, 261 F.2d 241, 120 USPQ 84; In re Altmann and Bureau, 46 CCPA 818, 264 F.2d 894, 121 USPQ 262.” Appellants also cite: In re Soli (1963), 50 C.C.P.A. 1288 [317 F.2d 941], 137 U.S.P.Q. 797, 801; In re Nurkiewicz (1964), 52 C.C.P.A. [848], 338 F.2d 1020, [143 U.S.P.Q. 421]. The solicitor argues: Appellants ask that doubt be resolved in their favor * * *. It is submitted that there is no reasonable basis for doubt that the subject matter of the appealed claims would have been obvious to one ordinarily skilled in the art, in view of prior art. Moreover, there may no longer be any war rant for resolving doubt in an applicant’s favor. See Graham v. John" }, { "docid": "1407919", "title": "", "text": "the Johnson specification, in connection with the knoicn state of the art at the time when it was filed and published, was sufficient to enable one skilled in the art of corset-making and in the use of the jacquard to make the patented corset. * * * [Emphasis added.] See also In re Sheppard, 52 CCPA 859, 339 F. 2d 238, 144 USPQ 42; In re LeGrice, 49 CCPA 1124, 301 F. 2d 929, 133 USPQ 365. Cf. In re Wenzel, 24 CCPA 1050, 88 F. 2d 501, 33 USPQ 30. Appellant urges that since the publication describes his own experimental work, it is clear that his date of invention is earlier than the publication date. While this undoubtedly is true, no exceptions are provided under 102(b) when, as here, the invention was described in the printed publication. Appellant urges that the publication should be “strictly construed” to the end that since the invention was in an experimental stage on the date of publication, appellant is entitled to the “hospitality” accorded by law to encourage experimentation and further development of an invention before an application is filed thereon. Congress has seen fit to fix the time period for such “hospitality” at one year from the date of a publication describing the invention and we can do nothing about it except to review and compare the invention claimed and the invention described in the publication. Appellant urges that when this is done, There are two fundamental reasons why the News and Observer article does not meet such strict tests. First, the article does not clearly disclose all of the structural limitations set forth in the claims. Second, the article is completely lacking in any disclosure of how a complete structure could be used to obtain the results alluded to. So long as the article includes these deficiencies the invention has not been placed in the possession of the public, nor would one skilled in the art be enabled to make and use the structure or to practice the invention. I have reviewed the News and Observer publication in view of appellant’s" }, { "docid": "2267480", "title": "", "text": "any need for picking, choosing, and combining various disclosures not directly related to each other by the teachings of the cited reference.” The test which determines whether an invention has been anticipated by a reference is whether the description of the invention in the reference is “sufficient to put the public in possession of the invention.” In re LeGrice, 49 CCPA 1124, 1131, 301 F. 2d 929, 933, 133 USPQ 365, 369 (1962), citing Curtis on Patents, 3d ed., Sec. 378 and Seymore v. Osborne, 78 U.S. (11 Wall.) 516, 555 (1870). See also In re Brown, 51 CCPA 1254, 329 F. 2d 1006, 141 USPQ 245 (1964); In re Sheppard, 52 CCPA 859, 339 F. 2d 238, 144 USPQ 42 (1964); In re Bird, 52 CCPA 1290, 344 F. 2d 979, 145 USPQ 418 (1965); In re Borst, 52 CCPA 1398, 345 F. 2d 851, 145 USPQ 554 (1965); In re Baranauckas, 55 CCPA 1204, 395 F. 2d 805, 158 USPQ 24 (1968); In re Hoeksema, 55 CCPA 1493, 399 F. 2d 269, 158 USPQ 596 (1968); In re Wilder, 57 CCPA 1314, 429 F. 2d 447, 166 USPQ 545 (1970); and In re Moore, 58 CCPA 1341, 444 F. 2d 572, 170 USPQ 260 (1971). I find it unreasonable to assume that Judge Rich and Judge Lane intend to overrule this long line of cases sub silentio. If what they intend is merely to rephrase the accepted test so as to simplify its application, they have missed the mark. The language used in the principal opinion would not in fact simplify the determination of the suitability of a reference as an anticipation under 35 USC 102. That language requires the tribunal to analyze the teachings of a reference to determine which are equivocal and which are unequivocal. It must also be determined which disclosures are directly related to each other by the teachings of the reference, thus making picking and choosing proper, and which disclosures are only indirectly related, or are not related at all. This is no simpler than reading the reference as a whole and determining" }, { "docid": "1698776", "title": "", "text": "find a substantial factual basis for the board’s decision on obviousness. Finally, appellants argue that doubt should be resolved in their favor. According to appellants: * * * The Court’s decision in In re Sporck (1962), 49 C.C.P.A. 1039, 301 F. 2d 686, 133 USPQ 360, is particularly in point: “Obviousness is a legal conclusion which we are required to draw from facts appearing in the record or of which judicial notice may be taken. Thus before we can conclude that any disclosed invention is ‘obvious’ under the conditions specified in 36 USC 103, we must evaluate facts from which to determine (1) what was shown in the prior art at the time the inven tion was made, and (2) the knowledge which a person of ordinary skill in the art possessed at the time the invention was made. “Here, neither the record nor the facts of which we are able to take judicial notice supplies the factual data necessary to support the legal conclusion of obviousness of the invention at the time it was made. We are unwilling to substitute speculation and hindsight appraisal of the prior art for such factual data. For this reason we think there is a doubt as to the factual basis supporting the conclusion of the board of appeals that the invention would have been obvious to one of ordinary skill in the art of metal spinning. Under these circumstances, the doubt should be resolved in favor of the applicant. In re Devine, 46 CCPA 725, 261 F. 2d 241, 120 USPQ 84; In re Altmann and Bureau, 46 CCPA 818, 264 F. 2d 894, 121 USPQ 262.” Appellants also cite: In re Soli (1963), 50 C.C.P.A. 1288 [317 F. 2d 941], 137 USPQ 797, 801: In re Nurkiewicz (1964), 52 C.C.P.A. [848], 338 F. 2d 1020, [143 USPQ 421]. The solicitor argues: Appellants ask that doubt be resolved in their favor * * *. It is submitted that there is no reasonable basis for doiibt that the subject matter of the appealed claims would have been obvious to one ordinarily skilled in the" }, { "docid": "4452860", "title": "", "text": "determines whether an invention has been anticipated by a reference is whether the description of the invention in the reference is. “sufficient to put the public in possession of the invention.” In re LeGrice, 301 F.2d 929, 933, 49 CCPA 1124, 1131 (1962), citing Curtis on Patents, 3d ed., Sec. 378 and Seymore v. Osborne, 78 U.S. (11 Wall.) 516, 555, 20 L.Ed. 33 (1870). See also In re Brown, 329 F.2d 1006, 51 CCPA 1254 (1964); In re Sheppard, 339 F.2d 238, 52 CCPA 859 (1964); In re Bird, 344 F.2d 979, 52 CCPA 1290 (1965); In re Borst, 345 F.2d 851, 52 CCPA 1398, (1965); In re Baranauckas, 395 F.2d 805, 55 CCPA 1204 (1968); In re Hoek-sema, 399 F.2d 269, 55 CCPA 1493 (1968); In re Wilder, 429 F.2d 447, 57 CCPA 1314 (1970); and In re Moore, 444 F.2d 572, 58 CCPA 1341 (1971). I find it unreasonable to assume that Judge Rich and Judge Lane intend to overrule this long line of cases sub silen-tio. If what they intend is merely to rephrase the accepted test so as to simplify its application, they have missed the mark. The language used in the principal opinion would not in fact simplify the determination of the suitability of a reference as an anticipation under 35 U.S.C. § 102. That language requires the tribunal to analyze the teachings of a reference to determine which are equivocal and which are unequivocal. It must also be determined which disclosures are directly related to each other by the teachings of the reference, thus making picking and choosing proper, and which disclosures are only indirectly related, or are not related at all. This is no simpler than reading the reference as a whole and determining what it fairly teaches to one of ordinary skill in the art. The more important difficulty with the position taken in the principal opinion is that it misdirects the inquiry. It directs the tribunal to analyze the structure of the reference rather than its content. The real question is not how logically the various disclosures in a reference" }, { "docid": "2267479", "title": "", "text": "USPQ 274 (1965); In re Kalm, 54 CCPA 1466, 378 F. 2d 959, 154 USPQ 10 (1967); In re McLamore, 54 CCPA 1544, 379 F. 2d 985, 154 USPQ 114 (1967); and In re Ruschig, 54 CCPA 1551, 379 F. 2d 990, 154 USPQ 118 (1967) (Ruschig II). Among the most recent of these are In re Ahlbrecht, 58 CCPA 848, 435 F. 908, 911, 168 USPQ 293, 296 (1971); In re Lukach, 58 CCPA 1233, 442 F. 2d 967, 969, 169 USPQ 795, 796 (1971); and Fields v. Conover, 58 CCPA 1366, 443 F. 2d 1386, 1391-92, 170 USPQ 276, 279-80 (1971). Baldwin, Judge, concurring, with whom Almond, Judge, joins. While I agree that the disclosure in the Flynn patent is insufficient to constitute an anticipation of the claimed invention, I cannot agree with the language of the principal opinion that for the rejection based on an anticipation to have been proper, “the Flynn reference must clearly and unequivocally disclose the claimed compound or direct those skilled in the art to the compound without any need for picking, choosing, and combining various disclosures not directly related to each other by the teachings of the cited reference.” The test which determines whether an invention has been anticipated by a reference is whether the description of the invention in the reference is “sufficient to put the public in possession of the invention.” In re LeGrice, 49 CCPA 1124, 1131, 301 F. 2d 929, 933, 133 USPQ 365, 369 (1962), citing Curtis on Patents, 3d ed., Sec. 378 and Seymore v. Osborne, 78 U.S. (11 Wall.) 516, 555 (1870). See also In re Brown, 51 CCPA 1254, 329 F. 2d 1006, 141 USPQ 245 (1964); In re Sheppard, 52 CCPA 859, 339 F. 2d 238, 144 USPQ 42 (1964); In re Bird, 52 CCPA 1290, 344 F. 2d 979, 145 USPQ 418 (1965); In re Borst, 52 CCPA 1398, 345 F. 2d 851, 145 USPQ 554 (1965); In re Baranauckas, 55 CCPA 1204, 395 F. 2d 805, 158 USPQ 24 (1968); In re Hoeksema, 55 CCPA 1493, 399 F. 2d 269, 158" }, { "docid": "11641657", "title": "", "text": "this case, the examiner came forward with evidence, i.e., the Stahly patent, tending to show that the subject matter of appellant’s claims “was described in a patent granted on an application for patent by another filed in the United States before the invention thereof by the applicant.” 35 USC 102(e). Our province now becomes an evaluation of the legal sufficiency of that showing, taking into accotmt appellant’s attacks against it, and weighing in any evidence which he might have submitted tending to show the contrary. Simply stated, a prior publication or patent description will be considered as anticipatory when its disclosure is at once specific and enabling with regard to the particular subject matter at issue. In effect, a prima facie case is made out whenever a reference is shown to contain a disclosure which is specific as to every critical element of the appealed claims. However, such disclosure may yet be held not to legally anticipate the claimed subject matter if it is found not to be sufficiently enabling, in other words, if it does not place the subject matter of the claims within “the possession of the public.” See, e.g., In re LeGrice, 49 CCPA 1124, 301 F. 2d 929, 133 USPQ 365 (1962); In re Brown, 51 CCPA 1254, 329 F. 2d 1006, 141 USPQ 245 (1964). Those parts of the reference patent relied on below as making out a specific disclosure of the claimed compositions have been summarized earlier. In arguing against a finding of specific disclosure, appellant emphasizes the fact that there is no express disclosure showing the particular rubber compositions here claimed. He also points out the large number of variations possible with Stahly’s disclosure and the fact that “Stahly’s singles out the N-isopropyl-N'-phenyl-p-phenylenediamine as unique.” On the other hand, we have noted that the particular adjuvant of these claims is one of 24 expressly disclosed as preferred by Stahly. In addition, the reference teaching is broadly enabling with regard to the manner of making and using both the specific adjuvant and the rubber compositions containing it. Furthermore, the patentee mentions no more than" }, { "docid": "1407918", "title": "", "text": "Observer article would make the subject matter presently claimed entirely obvious. Since the claimed invention has been obvious to the public for more than a year prior to appellant’s filing date, we hold appellant to have lost his right to patent under 35 U.S.C. 102(b). In re Foster, supra. In view of the foregoing, the decision of the board is affirmed. Smith, Judge, concurring. In my opinion, the publication in the Raleigh News and Observer on November 10, 1958, more than one year prior to appellant’s filing date, is an enabling disclosure which so described the invention here claimed that one of ordinary skill in the tobacco flue-curing art can be said to have had possession of the invention at that time. The additional references cited are at best evidence of what one of ordinary skill in this art would be expected to know. In Cohn v. United States Corset Co., 93 U.S. 366, 377 (1876), the Court stated the guiding principle which I think is applicable here: * * * the evidence shows that the Johnson specification, in connection with the knoicn state of the art at the time when it was filed and published, was sufficient to enable one skilled in the art of corset-making and in the use of the jacquard to make the patented corset. * * * [Emphasis added.] See also In re Sheppard, 52 CCPA 859, 339 F. 2d 238, 144 USPQ 42; In re LeGrice, 49 CCPA 1124, 301 F. 2d 929, 133 USPQ 365. Cf. In re Wenzel, 24 CCPA 1050, 88 F. 2d 501, 33 USPQ 30. Appellant urges that since the publication describes his own experimental work, it is clear that his date of invention is earlier than the publication date. While this undoubtedly is true, no exceptions are provided under 102(b) when, as here, the invention was described in the printed publication. Appellant urges that the publication should be “strictly construed” to the end that since the invention was in an experimental stage on the date of publication, appellant is entitled to the “hospitality” accorded by law to encourage" }, { "docid": "7420291", "title": "", "text": "assumptions the rebuttal of which might justify considering additional reference material. Appellants contend that the claimed compounds have utility and that one skilled in the art would know how to use them given the specification statement of utility. Appellants additionally contend that Glafkide demonstrates the manner in which the claimed compounds can be used. They argue that as a matter of fact, the phenyl portion of the Glafkide structure, like the fluoroalkyl group of their own compound, is not involved in the pyrazoline-one-forming reaction. Appellants assert that in any event the additional reference material clearly establishes that at the time the present application was filed, the level of skill in the pertinent art was such that the manner of using the compounds would have been apparent. It is appellants’ position that a “new rationale” of the board prompted the submission of that material and that In re Moore, 444 F.2d 572, 58 CCPA 1340, 170 USPQ 260 (1971) is authority for the proposition that the board should have considered it. Alternatively, they ask this court to take judicial notice of those prior patents and publications. OPINION The “How-to-Use” Requirement We accept the solicitor’s view that the rejection before us is based solely on the “how-to-use” requirement of § 112. The first paragraph of § 112 requires in pertinent part that: The specification shall contain a written description * * * of the manner and process of * * * using * * * [the invention] in such full, clear, concise, and exact terms as to enable any person skilled in the art * * * to * *' * use the same * * That statutory requirement is fulfilled where one possessed of the knowledge had by one skilled in the art could use the invention given the specification disclosure without undue experimentation. A patent applicant may offer evidence, such as patents and publications, to show the knowledge possessed by those skilled in the art and thereby establish that a given specification disclosure is enabling. See, e. g., Martin v. Johnson, 454 F.2d 746, 59 CCPA- (1972). In such a" }, { "docid": "11641658", "title": "", "text": "does not place the subject matter of the claims within “the possession of the public.” See, e.g., In re LeGrice, 49 CCPA 1124, 301 F. 2d 929, 133 USPQ 365 (1962); In re Brown, 51 CCPA 1254, 329 F. 2d 1006, 141 USPQ 245 (1964). Those parts of the reference patent relied on below as making out a specific disclosure of the claimed compositions have been summarized earlier. In arguing against a finding of specific disclosure, appellant emphasizes the fact that there is no express disclosure showing the particular rubber compositions here claimed. He also points out the large number of variations possible with Stahly’s disclosure and the fact that “Stahly’s singles out the N-isopropyl-N'-phenyl-p-phenylenediamine as unique.” On the other hand, we have noted that the particular adjuvant of these claims is one of 24 expressly disclosed as preferred by Stahly. In addition, the reference teaching is broadly enabling with regard to the manner of making and using both the specific adjuvant and the rubber compositions containing it. Furthermore, the patentee mentions no more than about a half dozen rubbers, all of which are “sulfur-vulcanizable diene hydrocarbon” rubbers, as possible components of the resistant compositions, with particular emphasis being placed on the same two rubbers specifically recited in claims 2 and 9 on appeal. Taking all these factors into account, we are constrained to hold that the Stahly patent does contain what amounts to a specific description of at least those rubber compositions containing either natural rubber or styrene-butadiene copolymer rubber with each and every one of the 24 adjuv-ants expressly mentioned. The compositions of claims 2, 6 and 9 are thus specifically described by the reference. Appellant has also submitted evidence, by way of affidavit, showing that the rubber compositions of his claims possess a property unexpectedly superior in a secondary but important characteristic, the hoped-for inference apparently being that if the claimed composition was, in fact, known by the reference patentee, it would have been listed as preferred above all other possibilities, because of this property. If this evidence is submitted in an attempt merely to prove the" }, { "docid": "3828055", "title": "", "text": "support a rejection under 35 USC 103 must provide an enabling disclosure, i. e., they must place the claimed invention in the possession of the public. In re Brown, 329 F.2d 1006, 1011, 51 CCPA 1254, 1259, 141 USPQ 245, 249 (1964). An invention is not “possessed” absent some known or obvious way to make it. In re Hoeksema, 399 F.2d 269, 274, 55 CCPA 1493, 1500, 158 USPQ 596, 601 (1968). Hence, the presumption of obviousness based on close structural similarity is overcome where the prior art does not disclose or render obvious a method for making the claimed compound. Id. at 1500, 399 F.2d at 274, 158 USPQ at 601. It can be assumed that the method disclosed for making the reference compound would provide those skilled in the art with a method for making the structurally similar claimed compounds. In re Grose, 592 F.2d 1161, 1168, 201 USPQ 57, 63 (CCPA 1979). However, the PTO can properly rely on additional references. Cf. In re Samour, 571 F.2d 559, 562-63, 197 USPQ 1, 4 (CCPA 1978). Moreover, the method suggested by the prior art need not be that disclosed by the applicant. In re Maloney, 411 F.2d 1321, 1323-25, 56 CCPA 1218, 1221-23, 162 USPQ 98, 100-02 (1969). In the present case, Payne labelled the examiner’s suggested methods a “[sjpeculative reconstruction of prior art processes” used to make “a series of intermediate compounds never before imagined or made.” Step I of the Miller analogy differs from the Miller reaction only in the substitution of a sulphur atom for an oxygen atom in the acid starting material. The use of new starting material or the obtaining of new resultant compounds is never alone sufficient to render unobvious a method otherwise analogous to that of the prior art. In re Kanter, 399 F.2d 249, 251, 55 CCPA 1395, 1397-98, 158 USPQ 331, 332-33 (1968). We find the Miller analogy sufficiently suggested by the prior art to place within the possession of the public a method for making Payne’s compounds. Thus, the PTO met its burden of establishing a prima facie" }, { "docid": "9621616", "title": "", "text": "art because the application on appeal takes priority to the filing date of [the patent] * * *. That such a position is untenable is clearly shown by In re Ockert, [44 CCPA 1024, 245 F.2d 467, 114 USPQ 330] * * *: That if only one inventive concept is present, two patents cannot be granted regardless of the order in which the applications were filed. (Italics added) ****** In summary the Examiner submits that a clear unequivocal case of double patenting has been made out. * * * The board in its opinion expressly declined to indicate whether the basis of the rejection was “double patenting” or whether its rejection was based on the patent as prior art. The board found instead that the appealed claims and the patent claims claimed the “same invention,” citing 35 U.S.C. § 101; that the claims “differ in scope only;” and that there was no “patentable distinction” between the appealed claims and the patent claims. The board agreed with the examiner’s reasoning and added: * * * We do not consider such solutions of a soluble polymer to constitute patentably separate and distinct subject matter. * * * * * * aqueous solutions of the [resin per se] * * * such as those claimed in appellants’ patent, would be apparent to the polymer chemist of no more than ordinary knowledge and skill. * * * A terminal disclaimer as to the appealed claims was filed but was given no legal effect in overcoming the rejection. The solicitor in his brief, apparently recognizing the contradiction between the board’s positions — that the appealed claims and the patent claims claimed the “same invention” but also claimed different inventions which were “patentably indistinct” — argues primarily the broader ground that the patent claims and the appealed claims are “patentably indistinct.” However, concerning the terminal disclaimer, the solicitor argues that our decisions in In re Robeson, 331 F.2d 610, 51 CCPA 1271; and In re Kaye, 332 F.2d 816, 51 CCPA 1465, are not controlling because of a difference in “facts.” It is reasoned that in" }, { "docid": "407147", "title": "", "text": "[51 CCPA 1123], 141 USPQ 227 [(CCPA 1964)]; In re Lunsford, 327 F.2d 526 [51 CCPA 1000], 140 USPQ 425 [(CCPA 1964)]; In re Riden, Jr., 318 F.2d 761 [50 CCPA 1411], 138 USPQ 112 [ (CCPA 1963) ]; In re Papesch, 315 F.2d 381 [50 CCPA 1084], 137 USPQ 43 [ (CCPA 1963) ]; In re Petering, 301 F.2d 676 [49 CCPA 993], 133 USPQ 275 [(CCPA 1962)]; In re Lambooy, 300 F.2d 950 [49 CCPA 985], 133 USPQ 270 [(CCPA 1962)]. Id. at 382 n. 2, 148 USPQ at 718 n. 2 (emphasis in original). The court reiterated: [T]he discovered activities or properties are part of the things claimed, the compounds .... [W]e, like the Patent Office, are required by the clear wording of section 103 to regard it as a relevant portion of the invention “as a whole.” Id. at 384, 148 USPQ at 720 (emphasis in original). In a companion case, In re Lunsford, 357 F.2d 385, 53 CCPA 1011, 148 USPQ 721 (CCPA 1966), the court again stressed that determination of obviousness must be based on both structure and properties. The court quoted the Patent Office position, in the examiner’s words: The argument that the “subject matter as a whole” under 35 U.S.C. 103 includes the compound and its utility is considered to be without merit. Id. at 391, 148 USPQ at 725. The court once more firmly rejected that position: [I]t is reasonably clear that the examiner considered only the difference in structures between the claimed compounds and the prior art compounds. Appellant was entitled to have differences between the claimed invention, the subject matter as a whole, and the prior art references of record evaluated. Id. (emphases in original). Referring to 35 U.S.C. § 103, the court wrote: It is not believed that [a person of ordinary skill in the art] would consider only the structures of the compounds[.] Id. (emphasis in original). These judicial analyses, written before the terminology of the prima facie case became routine in patent examination, nonetheless placed the burden on the examiner to come forward with prior art" }, { "docid": "11798921", "title": "", "text": "re Le Grice, 301 F.2d 929, 49 CCPA 1124 (1962), we observed that the resolution of this issue required us to determine whether, as a matter of law, a reference without such a disclosure constituted a statutory time bar to an applicant’s right to a patent. There, the issue was founded on 35 U.S.C. § 102(b), not § 103, but our conclusions have a certain pertinence here. We concluded, id. 301 F.2d at 936, 49 CCPA at 1134: We think it is sound law, consistent with the public policy underlying our patent law, that before any publication can amount to a statutory bar to the grant of a patent, its disclosure must be such that a skilled artisan could take its teachings in combination with his own knowledge of the particular art and be in possession of the invention. * * * In In re Brown, supra, this court discussed In re Von Bramer, 127 F.2d 149, 29 CCPA 1018 (1942), commenting that that opinion should not be construed to encompass what had come to be called the “Von Bramer doctrine.” There we stated, 329 F.2d at 1009, 51 CCPA at 1257: * * * This doctrine, which appears to have resulted from In re Von Bra-mer et al., supra, seems over a period of years to have been tailored in some quarters to a principle which defeats the novelty of a chemical compound on the basis of a mere printed conception or a mere printed contemplation of a chemical “compound” irrespective of the fact that the so-called “compound” described in the reference is not in existence or that there is no process shown in the reference for preparing the compound, or that there is no process known to a person having ordinary skill in the relevant art for preparing the compound. In other words a mere formula or a mere sequence of letters which constitute the designation of a “compound,” is considered adequate to show that a compound in an application before the Patent Office, which compound is designated by the same formula or the same sequence of letters," }, { "docid": "18411157", "title": "", "text": "making oxo- and thiobarbituric acids. This process is similar to appellants’ low temperature process. The examiner concluded that Donni-son’s process could be used to prepare the compounds named by Giudicelli. The significance of this conclusion can be seen from the legal analysis of that situation, stated by him as follows: Giudicelli et al. could not prepare these compounds by their | chosen method. However, the test of an “enabling disclosure” is not whether the reference teaches how to make the compounds, but whether the reference taken with the remainder of “the prior art is such as to place the disclosed ‘compound’ in the possession of the public.” The examiner’s authority for this test was the decision of this court in In re Brown, 329 F.2d 1006, 51 CCPA 1254 (1964). See also In re LeGrice, 301 F. 2d 929, 49 CCPA 1124 (1962); In re Sheppard, 339 F.2d 238, 52 CCPA 859 (1964); In re Hoeksema, 399 F.2d 269, 55 CCPA 1493 (1968); In re Collins, 462 F.2d 538, 59 CCPA 1170 (1972). In his view, Giudicelli is an “enabling disclosure” since Donnison’s process could be used to make the named compounds, thereby putting them in the possession of the public. The board agreed. The examiner’s rationale necessarily presumes that Giudicelli both describes the invention and would enable one skilled in the art to make the invention, the former by merely naming the compounds and the latter by viewing Donni-son as evidence that one skilled in the art could make the named compounds, thereby .making them available to the public. Appellants argue that the rejection is improper since Giudicelli by itself does not disclose all that is necessary to put the compounds in the hands of the public. Because the Patent Office had to rely upon Donnison to overcome this defect in Giudicelli, appellants insist that the rejection must be considered as having been made over a combination of references. In their view, a rejection based upon a combination of references is proper only if the statutory basis is 35 U.S.C. § 103. Alternatively, appellants argue that the process taught" }, { "docid": "23142422", "title": "", "text": "the only claim involved on this appeal. Akzo says that that claim is invalid under 35 U.S.C. §§ 102 and 103. More specifically, Akzo argues that the Commission misconstrued the legal standard of anticipation and therefore erroneously held that the Blades ’756 patent was not anticipated. In addition, appellants argue that the Commission failed properly to evaluate the prior art in determining obviousness vel non. Of course, it goes without elaboration that the Blades ’756 patent enjoys a presumption of validity under 35 U.S.C. § 282. As we have said, Akzo challenges the Commission’s use of § 102, claiming that that tribunal misinterpreted the legal standard of anticipation. Under 35 U.S.C. § 102, anticipation requires that each and every element of the claimed invention be disclosed in a prior art reference. W.L. Gore & Associates, Inc. v. Garlock, Inc., 721 F.2d 1540, 1554, 220 USPQ 303, 313 (Fed.Cir.1983), cert. denied, 469 U.S. 851, 105 S.Ct. 172, 83 L.Ed.2d 107 (1984). In addition, the prior art reference must be enabling, thus placing the allegedly disclosed matter in the possession of the public. In re Brown, 329 F.2d 1006, 1011, 141 USPQ 245, 249 (CCPA 1964). Akzo asserts, however, that the Commission wrongly used an “ipsissimis verbis test” in reaching its conclusion that the Blades ’756 patent was not anticipated by the Morgan ’645 disclosure. We do not read the Commission’s opinion as requiring such an “ipsissimis verbis test.” Rather, we understand that opinion as simply finding that the prior art reference did not disclose, to one of ordinary skill in the art, the process for making the aramid fibers described in claim 13. The Commission noted that while the Morgan ’645 patent called for the use of sulfuric acid, it did not call for the use of at least 98% concentrated sulfuric acid which was critical for the success of the Blades process. The Commission also concurred with the AU and found that concentrated sulfuric acid is not inherently 98% sulfuric acid to one skilled in the art. Because we determine that the Commission did not use an incorrect legal standard" } ]

[ { "docid": "22844523", "title": "", "text": "objector were not presented or considered at the time he was given his I-A classification. The only other condition required by §§ 1625.2 and 1625.4 to be met therefore was that the information presented by appellant, “if true, would justify a change in the registrant’s classification”. It cannot be held that the statements and information in appellant’s letter and executed form No. 150, if true, would not be able to provide basis for a conscientious objector classification and so could not justify a consideration of the question of change in his classification. While the notice sent by the board to appellant of its refusal to reopen the situation stated “that the information submitted did not warrant reopening of your classification”, what the board actually did, as the implications of its minutes reflect, was to engage in evaluative consideration and judgment that, regardless of the prima facie sufficiency of the information submitted, it was not, when pro-batively weighed against other elements in the situation, entitled to credence as fact. The basis for the board’s action was indicated in its official minutes as follows: “It was the opinion of the members that the registrant was seeking to avoid induction. They noted that he had applied for enlistment in a reserve program which was denied”. The latter statement had reference to an attempt by appellant (a licensed civilian pilot), during August 1965, to enlist in an Air Force troop carrier group reserve, which turned him down because of his being married. The troop carrier reserve notified appellant’s local selective service board by letter that “This individual is married and cannot be enlisted”. As above indicated, appellant’s letter and form No. 150 presented, within the language of § 1625.2(1), “facts not considered when the registrant was classified, which, if true, would justify a change in the registrant’s classification”. There thus was involved what Stain v. United States, 9 Cir., 235 F.2d 339, 342, termed “a prima facie case for a conscientious objector classification” and hence a'situation as to which Stain declared that “the local board should have reopened the record for the determination of" } ]

[ { "docid": "10240725", "title": "", "text": "and consider anew the classification of a registrant (a) * * * if such request is accompanied by written information presenting facts not considered when the registrant was classified, which, if true, would justify a change in the registrant’s classification; * * * the classification of a registrant shall not be reopened after the local board has mailed to such registrant an Order to Report for Induction * * * unless the local board first specifically finds there has been a change in the registrant’s status resulting from circumstances over which the registrant had no control.” If a decision to reopen a classification is made, the board is then required to consider the new information and reclassify the registrant as if he had never been classified. 32 CFR 1625.11. A new right of appeal follows from a reopening. 32 CFR 1625.13. Any outstanding Order to Report for Induction is canceled. 32 CFR 1625.14. When the board refuses to reopen no right of appeal exists. 32 CFR 1625.4. In view of the substantial procedural rights lost by a registrant upon the denial of a request to reopen his classification, it is imperative that such a determination be properly made. Mulloy v. United States, 398 U.S. 410, 90 S.Ct. 1766, 26 L.Ed.2d 362 (1970). In this case the statement of the board in its letter of December 6, 1967, that: “The local board reviewed the information in your file and felt that in view of the fact that you had asked for a deferment to get your Master’s degree, no further action would be taken” is insufficient. United States ex rel. Brown v. Resor, 429 F.2d 1340 (10th Cir. 1970). The statement fails to reflect that no new information was presented, or that the new facts if true would not justify a change in classification, or that no change in circumstance beyond the control of the petitioner had occurred. The subsequent statement in the letter of January 18, 1968, is likewise deficient. Further reasons are present for questioning the propriety of the refusal to reopen. Assuming that the board acted on the" }, { "docid": "3852402", "title": "", "text": "expenses were about $80 monthly. There is no dispute as to the legal standard for determining whether the local board was under a duty to reopen appellant’s classification. A local board is required to reopen a registrant’s classification upon receipt of new information presenting facts not considered when he was previously classified, which facts, if true, would require or entitle him to reclassification, i. e., a prima facie case. United States v. Freeman, supra at 248, 249; United States v. Mohammed, 288 F.2d 236, 242 (7th Cir. 1961) (reh. denied); 32 C.F.R. §§ 1625.2 and 1625.4 (1969). Accordingly, a local board may properly determine not to reopen if either (1) the information presented by the registrant “fails to present any facts in addition to those considered when the registrant was [previously] classified” or (2) “even if new facts are presented, the local board is of the opinion that such facts, if true, would not justify a change in the registrant’s classification.” 32 C.F.R. § 1625.4 (1969). There is no dispute as to what the board did in this case. When appellant brought to the board's attention on January 7, 1969 that it had not considered his Dependency Questionnaire filed on September 26, 1968, his induction order was canceled. On January 13, 1969, appellant requested in writing to meet with the board to discuss “additional information concerning petition for a hardship deferment.” Although he had no right to such a personal hearing before the board, 32 C.F.R. 1624.1(a) (1969), the board granted him a personal hearing through courtesy. United States v. Mulloy, 412 F.2d 421, 423 (6th Cir. 1969); 32 C.F.R. § 1625.1(c) (1969). Granting such a personal hearing in no way constituted a reopening of appellant’s classification. United States v. Mulloy, supra at 423, 424, 426. In fact, pursuant to 32 C.F.R. § 1625.4 (1969), the board notified him by letter that “At the meeting of February 12, 1969 your file was reviewed and all new evidence concerning your claim for dependency was considered by the local board as well as information you submitted to them in a personal hearing." }, { "docid": "886965", "title": "", "text": "ALDRICH, Chief Judge. This is an appeal by the government from the dismissal of an indictment. The facts are these. Defendant, classified I-A by his local Selective Service Board, was ordered to report for induction on June 24, 1969. After receipt of this notification, he requested SSS Form 150, seeking a conscientious objector classification, which he completed and returned to the Board on June 2. The Board thereafter wrote him as follows. “This letter is- to advise that your case was considered by the Board at a meeting held June 24, 1969. The Board did not reopen your classification.” Apparently defendant’s induction date was postponed to August 26. On that date he reported, but refused to submit. To the customary indictment under 50 U.S.C. App. § 462, the defendant filed a motion to dismiss on the ground that “no reasons [were] given” by the Board for the refusal to reopen his classification, citing the court’s previous decision in United States v. Cassarino, D.N.H., 1970, 314 F.Supp. 813, that such failure means that the government has not proved its case beyond a reasonable doubt. At the hearing on the motion the government stipulated, at the defendant’s request, that like Cassarino this was a post-order-to-report case, and that the Board had given no reason for its refusal to reopen. The court inquired whether defendant’s Form 150 “set out facts which established a prima facie case for conscientious objector classification?” Upon defendant’s statement that this matter was not relevant so far as his motion was concerned, the court in agreement, withdrew its in quiry, and the form was not introduced. The court thereupon granted the motion on the basis of its Cassarino opinion. The government asserts that this order is appealable by it, under 18 U.S.C. § 3731. That matter not appearing as obvious to us, we requested a brief with particular reference to United States v. Sisson, 1970, 399 U.S. 267, 90 S.Ct. 2117, 26 L.Ed.2d 608. The government responded with a scholarly memorandum discussing earlier cases, but which, unfortunately, stopped short of what we had in mind with regard to Sisson." }, { "docid": "12432062", "title": "", "text": "HEANEY, Circuit Judge. The United States appeals from a decision of the United States District Court for the District of Minnesota, granting a writ of habeas corpus to the plaintiff, Harold W. Huisinga. The writ directed the Commanding Officer of the Armed Forces Examining and Entrance Station in Minneapolis, Minnesota, to release Huisinga from the Armed Forces. Huisinga brought the writ contending that his order to report for induction was invalid because (1) the local draft board was required to reopen his I-A classification when he filed a post-induction notice claim, prima facie entitling him to conscientious objector status, (2) the action of the local board in considering his claim on the merits, while purporting to grant merely a courtesy interview, amounted to a reopening in fact, and (3) the local board, after reopening in fact, refused to grant Huisinga his rights of personal appearance and appeal, both attendant upon a reopening. We affirm the District Court. On November 7, 1969, Huisinga, having been previously classified I-A by his Hancock County, Iowa, local board, was sent an order to report for induction into the Armed Forces on December 3, 1969. This notice was postponed prior to the scheduled date to permit transfer of the site of induction to Ramsey County, Minnesota. On December 4, Huis-inga wrote to his local board requesting that he be sent Selective Service Forms 150 and 151 (Conscientious Objector and Volunteer for Civilian Work) stating, “After receipt of my induction notice I have become a conscientious objector.” On December 16, Huisinga’s induction was postponed by the local board “until such time as we can review your request for a I-A-0 classification.” Huis-inga completed the appropriate forms and returned them to his board on December 30, 1969. On January 21, 1970, the local board advised Huisinga, by letter, that he might meet with them on January 26 to discuss his classification. The letter stated that the meeting would be “a courtesy interview and does not constitute a legal personal appearance.” Huis-inga attended the interview on January 26. On the following day, the local board wrote to Huisinga" }, { "docid": "21976898", "title": "", "text": "when the registrant was classified, and which facts make out a prima facie case, the local board must reopen the registrant’s classification unless the facts, if true, would not justify a change in the registrant’s status. The point in time at which the registrant brings such facts to the board, even if it be after the issuance of an order to report for induction, is not, in and of itself, a sufficient basis for a board’s refusal to reopen the registrant’s classification. Gearey, supra. Timing may, however, be a relevant factor in the board’s determination concerning the sincerity of the objector’s claim. United States v. Stoppelman, 406 F.2d 127 at 131 n. 7 (1st Cir. 1969). The application of these standards to the instant case reveal a clear violation of the regulatory procedures. Here plaintiff submitted a claim for conscientious objector status which claim satisfied the prima facie requirement. See Miller v. United States, 388 F.2d 973 at 976 (9th Cir. 1967). Obviously, the facts presented were not considered when plaintiff’s classification was made in the summer of 1967. Unquestionably, moreover, the facts plaintiff stated, if true, would have entitled him to conscientious objector status. See United States v. St. Claire, 293 F.Supp. 337 (E.D.N.Y.1968). Hence, Local Board No. 3 was required by law to reopen plaintiff’s classification and to consider the merits of his claim with all of the usual regulatory procedures operative. 32 C.F.R. § 1625.13. Accordingly, the defendants’ motion is in this respect also denied. 50 U.S.C. App. § m(b) (3) Although there has been considerable litigation concerning the reopening obligation of the local boards of the Selective Service System, I have been unable to find a single case which considers the question of the availability of preprosecution judicial review when a clear violation of the reopening regulations is alleged by the registrant. However, the favorable citation by the majority of the Court in Oestereich v. Selective Service Local Board No. 11, 393 U.S. 233, 89 S.Ct. 414, 21 L.Ed.2d 402 (1968), of an older Sixth Circuit decision, which permitted pre-prosecution review where a local board failed" }, { "docid": "3811283", "title": "", "text": "BREITENSTEIN, Circuit Judge. On a trial to the court without a jury defendant-appellant Stone was found guilty of violating 50 U.S.C.App. § 462(a) for failure to submit to induction into the armed forces of the United States. On this appeal he attacks the validity of the order for induction. Defendant registered with his Local Board in July, 1962. He received a student deferment and later a deferment for service in VISTA. On November 17, 1967, he was classified I-A. He appealed and the State Board affirmed the classification. He was given a physical examination and ordered to report for induction on May 6, 1968. This order was cancelled for technical reasons. The Local Board reopened his classification and on June 19 again placed him in I-A. He again appealed without success to the State Board. On September 13, 1968, the Local Board ordered him to report for induction on October 22. On September 16 defendant wrote the Local Board and inquired about his rights. The Local Board replied that the classification could not be reopened unless it found a change in status resulting from circumstances beyond his control and that he could submit new information at any time. On October 7 defendant requested Selective Service Form 150, to be filed by a registrant requesting conscientious objector status. The form was completed and returned to the Board on October 21. The Local Board minutes on the back of the defendant’s Classification Questionnaire contain the following notation: “10-22-68 Local Board reviewed SSS Form 150, did not wish to re-open.” On the same day the Executive Secretary of the Local Board wrote a letter to the defendant which said in pertinent part: “In order for this Local Board to reopen your classification they would have to make a finding that there has been a change in your status resulting in [sic] circumstances over which you had no control. This Board specifically finds that there has been no change in your status resulting in [sic] circumstances over which you had no control.” The defendant failed to report and this prosecution followed. The reopening of" }, { "docid": "18044712", "title": "", "text": "in status,” (2) that his “claim does not have merit” and (3) that he “does not meet the criteria for C. 0.” Appellant was then informed that the board had determined “there was no change in your status over which you had no control, [and] therefore, did not reopen your classification.” Under the reasoning of Miller v. United States, supra, a court must look to the substance and not the form of the board’s proceedings. Thus, board action which amounts to a de facto reopening of the classification under 32 C.F.R. § 1625.11 entitles the registrant to an appeal to the state board even though the local board purports to have refused a reopening. In Miller the denial of the appeal was held to be a sufficient ground for reversing the conviction. The government argues that there is a crucial distinction between the facts in Miller and those in the case before us— a distinction so fundamental as to make the difference between a valid legal defense in Miller and a legal irrelevance here: (1) Miller’s request for the SSS Form 150 was made one day after he received notice that he was to be inducted at a future date, and the proceedings to reopen his classification were initiated before the date on which the alleged crime of refusing induction was committed; (2) appellant’s request was not made until the induction day had long passed; his request for Form SSS 150 was not submitted until some sixty days after the commission of the crime. Attaching critical significance to the timeliness of the institution of the reopening proceedings, the government urges that any defect in a selective service proceeding which occurred subsequent to appellant’s refusal to submit to induction is not relevant to the issue whether a crime was committed on the day of the scheduled induction. Hence any subsequent selective service procedural infirmity cannot be interposed as a valid defense to the crime charged. Although the government’s position has been endorsed by a formidable array of precedents in the First, Sixth, Seventh, Eighth and Ninth Circuits, appellant would have us" }, { "docid": "23585558", "title": "", "text": "have filed earlier had he known the rules — a reason effectively negating any contention that he filed the form because his views suddenly changed. Looking at Form 150 from the Board’s position on October 11, 1966, there was nothing to show that there was a change of status to be considered. Thus, the action of the Board was the proper one, pursuant to 32 C.F.R. 1625.2, supra. The only conceivable argument is that the Board should have known, from the filing of the conscientious objector form, that a change of status was being claimed. To hold that a mere filing of a form, regardless of its legal sufficiency, requires the Board to reopen, would seriously disrupt the Selective Service System. This is especially true when the form is not filed until after the induction notice has been received. Affirmed. . That section provides that the President may: “Prescribe the necessary rules and regulations to carry out the provisions of this title * * * ” . Even in a situation where SSS Form 150 is submitted prior to mailing of the induction notice, the form must present “a prima facie case for conscientious objector classification,” to require the board to reopen. Stain v. United States, 235 F.2d 339 (9th Cir. 1956); Miller v. United States, Ninth Circuit Dec. 29, 1967, 888 F.2d 973. In the present case, SSS Form 150 was submitted after mailing of the induction notice and the board cannot exercise its discretion to reopen unless it can find a “change of status” as required by 32 C.F.R. 1625.2, supra. . This letter reads: “October 3ed, 1966 “Local Board #135 2100 N. Main St., Santa Ana, Calif. Gentlemen: I am sending you the special form for conscientious Objectors. I did not sent it to you earlier because I was ignorant of the laws and proeee-dures. I therefore want you to reopen. Since I now live in Temple City I will go direct to the Induction Station, 1037 South Broadway, Los Angeles, at such time as it becomes necessary to do so for any reason. Yours Truly: Joseph" }, { "docid": "3852403", "title": "", "text": "did in this case. When appellant brought to the board's attention on January 7, 1969 that it had not considered his Dependency Questionnaire filed on September 26, 1968, his induction order was canceled. On January 13, 1969, appellant requested in writing to meet with the board to discuss “additional information concerning petition for a hardship deferment.” Although he had no right to such a personal hearing before the board, 32 C.F.R. 1624.1(a) (1969), the board granted him a personal hearing through courtesy. United States v. Mulloy, 412 F.2d 421, 423 (6th Cir. 1969); 32 C.F.R. § 1625.1(c) (1969). Granting such a personal hearing in no way constituted a reopening of appellant’s classification. United States v. Mulloy, supra at 423, 424, 426. In fact, pursuant to 32 C.F.R. § 1625.4 (1969), the board notified him by letter that “At the meeting of February 12, 1969 your file was reviewed and all new evidence concerning your claim for dependency was considered by the local board as well as information you submitted to them in a personal hearing. It was the unanimous decision of the board members that the file will not be reopened and there is no change in classification warranted. Therefore, your status remains unchanged.” The regulations require that the board consider only that written information which accompanies a registrant’s written request for reopening. See 32 C.F.R. §§ 1625.2 and 1625.4 (1969). In this case, however, the local board in its discretion chose to permit the appellant to appear personally and present evidence in addition to that contained on his Dependency Questionnaire of September 26, 1968. In determining whether the new information contained in this form and presented by appellant at this hearing warranted a reopening, it was entirely proper for the board to consider appellant's entire file and to consider any information in the file which would contradict or negate appellant’s claims. See United States v. Mulloy, supra at 424-25; Woo v. United States, 350 F.2d 992, 997 (9th Cir. 1955) (Hamlet, J., dissenting on other grounds) ; United States v. Ransom, supra, 223 F.2d at 18; United States v." }, { "docid": "868850", "title": "", "text": "the date and time he was to report for. induction. Under date of August 23, 1967, appellant acknowledged receipt of the board’s letter of August 22, 1967, called the board's attention to the filing by him of the Conscientious Objector form on December 5, 1966, and closed his letter by stating: “Therefore, I think it only fair that I have the chance to meet with you and go over this in some detail. I have never once had the opportunity to talk to you.” Under date of September 12, 1967, the local board, pursuant to the request of June 26, 1967 therefor, forwarded appellant’s Selective Service file to California Headquarters. On September 29, 1967, the California Headquarters returned appellant’s file “for further processing at this time” and stated: “We note the armed forces induction station has determined the registrant is now qualified for induction, effective August 16,1967. “In view of the above, a new reporting date under the induction order issued on October 24, 1966, should now be issued, unless the local board determines a basis for deferment has now been established. If the local board ■ determines not to defer the registrant then it should at least review the information submitted by him subsequent to the issuance of his induction order and advise him on C Form 140 that reopening of his classification is not warranted on the facts.” Under date of October 23, 1967, the local board wrote to appellant on a Form C-140 letter which reads as follows: “Re: Conscientious Objector Status “Dear Sir: “This will acknowledge receipt of your communication relative to your Selective Service status. The information contained therein has been considered by this board and it is of the opinion that the facts presented do not warrant the reopening or reclassification of your case at this time.” A note at the end of the letter also notified appellant that the board had denied his request for an interview. On October 31, 1967, the local board sent appellant a letter ordering him to report for induction on November 28, 1967. The letter further stated: “On" }, { "docid": "868851", "title": "", "text": "basis for deferment has now been established. If the local board ■ determines not to defer the registrant then it should at least review the information submitted by him subsequent to the issuance of his induction order and advise him on C Form 140 that reopening of his classification is not warranted on the facts.” Under date of October 23, 1967, the local board wrote to appellant on a Form C-140 letter which reads as follows: “Re: Conscientious Objector Status “Dear Sir: “This will acknowledge receipt of your communication relative to your Selective Service status. The information contained therein has been considered by this board and it is of the opinion that the facts presented do not warrant the reopening or reclassification of your case at this time.” A note at the end of the letter also notified appellant that the board had denied his request for an interview. On October 31, 1967, the local board sent appellant a letter ordering him to report for induction on November 28, 1967. The letter further stated: “On October 24, 1966, this local board mailed you an Order to report for Induction (SSS Form 252) on November 22, 1966. You are still under that original order. “Pursuant to the Induction Station’s direction your actual induction was not completed pending further clearance of your records. “You are now found to be acceptable for service in the Armed Forces and are directed to report * * * on November 28, 1967, at 6:00 A.M., Promptly, for completion of your induction.” On November 8, 1967, the local board received from appellant “Request for Undergraduate Student Deferment,” together with supporting papers, in which he requested that he be granted deferment in Class II-S. On November 16, 1967, the local board notified appellant on a Form C 140-L re: Student Status, in which it acknowledged receipt of appellant’s request for student deferment and stated: “The information contained therein has been considered by this board and you are hereby advised it did not specifically find that there has been a change in status resulting from circumstances over which you" }, { "docid": "21926024", "title": "", "text": "board, together with letters from various individuals attesting to the nature and sincerity of his beliefs. On the day after the courtesy interview petitioner was informed by letter that ‘It was the unanimous opinion of the board that the new information did not warrant reopening of your classification. .’ No reason was offered why the information submitted did not warrant reopening and none is noted in petitioner’s file.” Scott’s “. . . induction was then rescheduled and he submitted to induction on January 16, 1970. [As we have said [h]e petitioned the district court for a writ of habeas corpus on the same day. He alleged that he had been illegally inducted because his local board had failed to reopen his classification and grant him conscientious objector status and, alternatively, that his local board ‘while purporting to refuse to reopen and consider anew petitioner’s I-A classification, did in fact so reopen and consider the same anew but refused to grant petitioner . . . the rights of appellate review of the Board’s refusal to reclassify petitioner to Conscientious Objector classification.’ ” Shomock did not submit to induction but broke off the process and did not return. Scott contended that his order for induction was invalid because his Local Board illegally refused to reopen his classification and grant him a conscientious objector status. Our opinion made it clear that the reopening of a Selective Service classification is governed by 32 CFR Sec. 1625.2 and, as was stated, the regulation was construed by the Supreme Court to require that where a registrant makes non-frivolous allegations of facts that have not been considered previously by his board and which, if true, would be sufficient under the regulation or statute to warrant granting the requested reclassification, the board must reopen the classification unless the truth of the new nonfrivolous allegations is “conclusively” refuted by other reliable information in the registrant’s file. Mulloy v. United States, 398 U.S. 410, 416, 90 S.Ct. 1766, 26 L.Ed.2d 362 (1970). 32 CFR Sec. 1625.2 provided that . the classification of a registrant shall not be reopened after the" }, { "docid": "21976897", "title": "", "text": "is correct in his assertion that Local Board No. 3 was obliged to reopen and consider his claim for conscientious objector status, then, because Local Board No. 3 would have exceeded its regulatory authority, mandamus would be an appropriate jurisdictional basis. See Carey v. Selective Service Local Board No. 2, supra. Merits For purposes of clarity, because the jurisdictional holding as to § 10(b) (3) rests on the court’s view of the merits, I will treat here the basis for the plaintiff’s reopening claim. It is now established that the discretion vested in local boards with respect to reopening, 32 C.F.R. § 1625.2, is limited by the statutory, 50 U.S.C. App. § 456(j), and constitutional, see United States v. Seeger, 380 U.S. 163, 85 S.Ct. 850, 13 L.Ed.2d 733 (1965), United States v. Sisson, 297 F.Supp. 902 (D.Mass.1969), status accorded to conscientious objectors. United States v. Gearey, 368 F.2d 144 (2nd Cir. 1966). Hence, where a registrant brings facts to a local board concerning his status as a conscientious objector which facts were not considered when the registrant was classified, and which facts make out a prima facie case, the local board must reopen the registrant’s classification unless the facts, if true, would not justify a change in the registrant’s status. The point in time at which the registrant brings such facts to the board, even if it be after the issuance of an order to report for induction, is not, in and of itself, a sufficient basis for a board’s refusal to reopen the registrant’s classification. Gearey, supra. Timing may, however, be a relevant factor in the board’s determination concerning the sincerity of the objector’s claim. United States v. Stoppelman, 406 F.2d 127 at 131 n. 7 (1st Cir. 1969). The application of these standards to the instant case reveal a clear violation of the regulatory procedures. Here plaintiff submitted a claim for conscientious objector status which claim satisfied the prima facie requirement. See Miller v. United States, 388 F.2d 973 at 976 (9th Cir. 1967). Obviously, the facts presented were not considered when plaintiff’s classification was made in" }, { "docid": "21926023", "title": "", "text": "arrived at the induction station on May 7, 1969, too late in the day to be processed. He returned for processing on May 8, 1969, and after passing his physical examination indicated that he was not going to remain at the induction station until the induction ceremony. He was advised that such action would constitute a criminal offense but he adhered to his intention and departed without complying with further proceessing procedures. The appellant contends that our decision in Scott v. Commanding Officer, 431 F.2d 1132 (1970), requires Local Boards to consider post induction notice prima facie conscientious-objector claims on their merits and state their reason for denying such claims. This was the holding in Scott. It is difficult to see how the Scott case is relevant on this point, since Scott submitted to induction and then petitioned for a writ of habeas corpus on the same day as his submission. Id. at 1134. Scott alleged he had been illegally inducted. Scott “ . promptly completed the Form 150 and sent it to the local board, together with letters from various individuals attesting to the nature and sincerity of his beliefs. On the day after the courtesy interview petitioner was informed by letter that ‘It was the unanimous opinion of the board that the new information did not warrant reopening of your classification. .’ No reason was offered why the information submitted did not warrant reopening and none is noted in petitioner’s file.” Scott’s “. . . induction was then rescheduled and he submitted to induction on January 16, 1970. [As we have said [h]e petitioned the district court for a writ of habeas corpus on the same day. He alleged that he had been illegally inducted because his local board had failed to reopen his classification and grant him conscientious objector status and, alternatively, that his local board ‘while purporting to refuse to reopen and consider anew petitioner’s I-A classification, did in fact so reopen and consider the same anew but refused to grant petitioner . . . the rights of appellate review of the Board’s refusal to reclassify" }, { "docid": "890306", "title": "", "text": "OPINION OF THE COURT VAN DUSEN, Circuit Judge. This appeal challenges a criminal conviction (the district court judgment and commitment is dated January 25, 1972), after trial to the court, for refusal to submit to induction in accordance with a Local Board order as required by the Military Selective Service Act of 1967, as amended, and the rules and regulations made pursuant thereto, in violation of 50 U.S.C. App. § 462. After the registrant had received an order to report for induction on November 17, 1969, which was mailed on October 23, 1969, he filed an application on Form 150 for classification as a conscientious objector (I-O) in early February 1970, alleging, inter alia, that consideration of his imminent induction in November 1969 made him realize that “I couldn’t bear arms against another person.” His Form 150, as supplemented by his supporting letters, made out a prima facie case for a 1-0 classification. See Welsh v. United States, 398 U.S. 333, 90 S.Ct. 1792, 26 L.Ed.2d 308 (1970). After a nonstatutory interview was granted to Ziskowski by the Local Board on February 5, 1970, at which he “advised his feelings crystallized when he received the induction order,” the Board declined to reopen the case and sent him a letter dated 5 February 1970 stating, inter alia: “It is the determination of the board that there has been no change in your status resulting from circumstances over which you had no control. Your classification has not been reopened.” 32 C.F.R. § 1625.2, governing the reopening of a registrant’s classification after the mailing of an Order to Report for Induction, provides that such reopening shall not occur “unless the local board first specifically finds that there has been a change in the registrant’s status resulting from circumstances over which the registrant had no control.” The language used by the Board in refusing to reopen Ziskowski’s classification is consistent with at least the following reasons: 1. A Board finding that the registrant’s conscientious objector beliefs were not sincere either before or after receipt of his notice of induction on October 23, 1969, so" }, { "docid": "3811284", "title": "", "text": "unless it found a change in status resulting from circumstances beyond his control and that he could submit new information at any time. On October 7 defendant requested Selective Service Form 150, to be filed by a registrant requesting conscientious objector status. The form was completed and returned to the Board on October 21. The Local Board minutes on the back of the defendant’s Classification Questionnaire contain the following notation: “10-22-68 Local Board reviewed SSS Form 150, did not wish to re-open.” On the same day the Executive Secretary of the Local Board wrote a letter to the defendant which said in pertinent part: “In order for this Local Board to reopen your classification they would have to make a finding that there has been a change in your status resulting in [sic] circumstances over which you had no control. This Board specifically finds that there has been no change in your status resulting in [sic] circumstances over which you had no control.” The defendant failed to report and this prosecution followed. The reopening of a classification is governed by a Selective Service regulation, 32 CFR § 1625.2, which provides: “* * x- the classification of a registrant shall not be reopened after the local board has mailed to such registrant an Order to Report for Induction * * * unless the local board first specifically finds that there has been a change in the registrant's status resulting from circumstances over which the registrant had no control.” This regulation is a reasonable restriction on the statutory right, 50 U.S.C.App. § 456(j), to avoid military service because of conscientious objection. Keene v. United States, 10 Cir., 266 F.2d 378, 384; see also United States v. Maine, 10 Cir., 417 F.2d 951, 953-954. A crystallization of beliefs in conscientious objection after the Order to Report for Induction has been mailed may constitute a change in status resulting from circumstances beyond a registrant’s control. In such a case the Board has a duty to reopen the classification. United States v. Maine, supra at 953; Martinez v. United States, 10 Cir., 384 F.2d 50," }, { "docid": "18044711", "title": "", "text": "1968, appellant requested and later received an SSS Form 150 (Conscientious Objector) from his local board, which he filed with the board some four months later on September 20, 1968. In the interim, on June 26, 1968, a grand jury returned an indictment against him, charging a violation of the Military Selective Service Act of 1967, 50 App. U.S.C.A. § 462(a). Confronted with his belated claim for exemption, the local board sought advice from the Pennsylvania State Selective Service Director, asking what, if any, consideration should be given the claim. The director wrote that the local board “may reopen and consider anew” the claim “without regard to the fact that he has been indicted and without the aura of criminality.” After receiving the requested instructions, the local board summoned appellant to appear for a personal interview on October 1, 1968. The minutes of the board’s subsequent meeting establish that, in accordance with the directions from state headquarters, the board con sidered the merits of appellant’s claim. The board determined (1) that there was “no change in status,” (2) that his “claim does not have merit” and (3) that he “does not meet the criteria for C. 0.” Appellant was then informed that the board had determined “there was no change in your status over which you had no control, [and] therefore, did not reopen your classification.” Under the reasoning of Miller v. United States, supra, a court must look to the substance and not the form of the board’s proceedings. Thus, board action which amounts to a de facto reopening of the classification under 32 C.F.R. § 1625.11 entitles the registrant to an appeal to the state board even though the local board purports to have refused a reopening. In Miller the denial of the appeal was held to be a sufficient ground for reversing the conviction. The government argues that there is a crucial distinction between the facts in Miller and those in the case before us— a distinction so fundamental as to make the difference between a valid legal defense in Miller and a legal irrelevance here: (1)" }, { "docid": "868853", "title": "", "text": "had no control. In its opinion, the reopening or reclassification of your case is therefore not warranted.” The letter also reminded appellant that he was required to report for Armed Forces Induction on November 28, 1967, as ordered. On November 28, 1967, appellant appeared at the Armed Forces examining station and refused to submit to induction. It is to be noted that the letter of September 29, 1967, from California Headquarters, above quoted, returning appellant’s file to the local board for further processing placed no restriction or restraint on the local board in the reprocessing of appellant’s file. The letter specifically directed that the Board advise appellant of its action on Form C 140, which the local board did. See letter of October 23, 1967, quoted above. The Form C 140 letter is to be contrasted with the Form C 140-L letter dated November 16, 1967, and quoted above, which the local board sent to appellant and wherein appellant’s request for student deferment was denied because the Board: “[D]id not specifically find that there has been a change in status resulting from circumstances over which you had no control. In its opinion, the re-opening or reclassification of your case is therefore not warranted.” In our view of the record, the judgment of conviction here must be reversed on the ground that appellant was denied procedural due process and was thereby prejudiced. See Miller v. United States, 388 F.2d 973 (9th Cir. 1967). As stated in Miller, supra,, at page 975, the effect of the letter of the California Headquarters, dated September 29, 1967, to the local board, returning appellant’s Selective Service file “for further processing at this time,” was to “open up the situation to consideration by the local board of appellant’s conscientious-objector claim and request for change of classification in the same manner and to the same extent as if the induction order had not been issued.” (Italics added.) Admittedly the facts relating to appellant’s claim to have become a Conscientious Objector were not presented or considered at the time he was given his I-A classification. As in Miller," }, { "docid": "10240724", "title": "", "text": "your file and felt that in view of the fact that you had asked for deferment to get your Master’s degree, no further action would be taken.” Coelho again reiterated his deferment request on January 15, 1968. On January 18, 1968, Coelho received a reply letter from the board which stated in part that: “The reason he (Joyce) was postponed was to allow him to receive his degree before he entered the Army. Therefore, no further action can be considered.” The scope of review in selective service cases is a narrow one. A classification can be found invalid only if no basis in fact for the classification exists or the registrant was denied fundamental procedural fairness. Vaughn v. United States, 404 F.2d 586, 589-590 (8th Cir. 1968). A violation of the Selective Service Regulations provides a basis for overturning a classification only if a substantial prejudice has resulted to the registrant. United States v. Chaudron, 425 F.2d 605, 608 (8th Cir. 1970). Section 1625.2 of the Selective Service Regulations provides: “The local board may reopen and consider anew the classification of a registrant (a) * * * if such request is accompanied by written information presenting facts not considered when the registrant was classified, which, if true, would justify a change in the registrant’s classification; * * * the classification of a registrant shall not be reopened after the local board has mailed to such registrant an Order to Report for Induction * * * unless the local board first specifically finds there has been a change in the registrant’s status resulting from circumstances over which the registrant had no control.” If a decision to reopen a classification is made, the board is then required to consider the new information and reclassify the registrant as if he had never been classified. 32 CFR 1625.11. A new right of appeal follows from a reopening. 32 CFR 1625.13. Any outstanding Order to Report for Induction is canceled. 32 CFR 1625.14. When the board refuses to reopen no right of appeal exists. 32 CFR 1625.4. In view of the substantial procedural rights lost" }, { "docid": "890307", "title": "", "text": "Ziskowski by the Local Board on February 5, 1970, at which he “advised his feelings crystallized when he received the induction order,” the Board declined to reopen the case and sent him a letter dated 5 February 1970 stating, inter alia: “It is the determination of the board that there has been no change in your status resulting from circumstances over which you had no control. Your classification has not been reopened.” 32 C.F.R. § 1625.2, governing the reopening of a registrant’s classification after the mailing of an Order to Report for Induction, provides that such reopening shall not occur “unless the local board first specifically finds that there has been a change in the registrant’s status resulting from circumstances over which the registrant had no control.” The language used by the Board in refusing to reopen Ziskowski’s classification is consistent with at least the following reasons: 1. A Board finding that the registrant’s conscientious objector beliefs were not sincere either before or after receipt of his notice of induction on October 23, 1969, so that there was no change in his status since he was not entitled to a conscientious objector classification in either period. 2. A Board finding that the registrant’s conscientious objector beliefs were sincere both before and after receipt of his notice of induction on October 23, 1969, so that there was no change in his status requiring a reopening of his classification. 3. A Board finding that the registrant’s conscientious objector beliefs, even if they were sincere and had crystallized after receipt of the Order to Report for Induction, were not “by reason of religious training” (See 50 U.S.C. App. § 456(j)), so that there was no change in his status since he was not entitled to a conscientious objector classification in either period. 4. A Board determination that even if the registrant might be entitled to a conscientious objector classification because his conscientious objector beliefs were sincere and “by reason of religious training” and had crystallized after October 23, 1969, the registrant was not entitled to a reopening of his classification because such crystallization" } ]

[ { "docid": "21608573", "title": "", "text": "both at the end of Allstate’s case in chief and at the conclusion of all evidence, contending that Allstate had failed to present any evidence that established a proper measure of recoverable damages sufficient to support a jury verdict. The motions were denied. The case was ultimately submitted to the jury, which returned a verdict in favor of Allstate. Curiously, although the jury found no comparative negligence on the part of Allstate or the Hessens, it nevertheless awarded only 75% of Allstate's total claim, or $289,240.64. The court entered final judgment in this amount on May 12, 1989. Jaguar’s timely post-trial motions for judgment notwithstanding the verdict and for new trial on five separate grounds, largely reiterating objections made earlier in the proceeding, were denied by a district court order entered July 31, 1989. The court entered a final judgment awarding Allstate prejudgment interest on August 21, 1989. This appeal from both final judgments followed. STANDARD OF REVIEW Motions for judgments notwithstanding the verdict and directed verdicts test the sufficiency of evidence supporting a jury verdict. Gregg v. U.S. Industries, Inc., 887 F.2d 1462, 1468 (11th Cir.1989) (citing J & H Auto Trim Co. v. Bellefonte Ins. Co., 677 F.2d 1365, 1368 (11th Cir.1982)). Because consideration of the sufficiency of the evidence is a question of law subject to de novo review, we therefore apply the same standard as the district court applied in its initial rulings. Id. When evaluating the district court’s denial of a directed verdict or judgment n.o.v., the court should consider all of the evidence — not just that evidence which supports the non-mover’s case — but in the light and with all reasonable inferences most favorable to the party opposed to the motion. If the facts and inferences point so strongly and overwhelmingly in favor of one party that the [cjourt believes that reasonable men could not arrive at a contrary verdict, granting of the motions is proper. On the other hand, if there is substantial evidence opposed to the motions, that is, evidence of such quality and weight that reasonable and fair-minded men in" } ]

[ { "docid": "22568425", "title": "", "text": "that, without obtaining a license from Montgomery, they downloaded VPIC 4.3 from a bulletin board and incorporated it as a utility on four FLD discs. The defendants challenge the propriety of Montgomery’s copyright infringement claim on two grounds. First, they argue that Montgomery does not own a valid copyright in VPIC 2.9a as required by Feist. According to the defendants, Montgomery’s copyright in VPIC 2.9a is invalid because earlier versions of VPIC — components of which were contained in VPIC 2.9a-were injected of into the public domain. Second, and alternatively, the defendants argue that the scope of Montgomery’s copyright registration for VPIC 2.9a does not extend to support the commencement of an action for infringement of his unregistered copyright in VPIC 4.3-the version that the defendants incorporated. The district court rejected these arguments, finding that the jury’s verdict was in accordance with both the law and the evidence at trial. We review a district court’s denial of a motion for judgment as a matter of law de novo, applying the same standards as the district court. In considering the sufficiency of the evidence that supports the jury’s verdict, we review the evidence “in the light most favorable to, and with all reasonable inferences drawn in favor of, the nonmoving party.” Walker v. NationsBank of Fla., N.A., 53 F.3d 1548, 1555 (11th Cir.1995). If reasonable and fair-minded persons in the exercise of impartial judgment might reach different conclusions based on the evidence presented, the motion should be denied. See Walls v. Button Gwinnett Bancorp, Inc., 1 F.3d 1198, 1200 (11th Cir.1993). Questions of law raised by the motion, however, are reviewed de novo. See Morro v. City of Birmingham, 117 F.3d 508, 513 (11th Cir.1997), cert. denied,- U.S. -, 118 S.Ct. 1299, 140 L.Ed.2d 465 (1998). Applying these standards to the two arguments presented by the defendants, we conclude that the district court correctly denied them motion. 1. The plaintiff in a copyright infringement action normally bears the burden proving ownership of a valid copyright, In order to meet this burden, the plaintiff must show that the work is original and" }, { "docid": "21103534", "title": "", "text": "Act of 1964, 42 U.S.C. § 2000e et. seg., as amended in 42 U.S.C. § 1981(a) (1994). Taylor contends that the Postal Service subjected her to gender discrimination and retaliation in violation of federal law. On September 11, 12 and 15, 1997, a jury trial ensued. At the conclusion of Taylor’s case, the Postal Service moved for judgment as a matter of law pursuant to Federal Rules of Civil Procedure 50(a) on both of Taylor’s claims. At the conclusion of oral arguments on the motion, the district court made various factual and legal findings and granted the Postal Service’s motion for judgment as a matter of law as to both claims. The district court entered final judgment on behalf of the Postal Service on September 15,1997. III.ISSUES ■ The issues are: (1) whether the district court erred in granting judgment as a matter of law against Taylor’s claim of gender discrimination; and (2) whether the district court erred in granting judgment as a matter of law against Taylor’s claim of retaliation. IV.DISCUSSION We review a district court’s grant of judgment as a matter of law de novo, applying the same legal standards as those used in the district court. U.S. Anchor Mfg., Inc. v. Rule Indus., Inc., 7 F.3d 986, 993 (11th Cir.1993), cert. denied, 512 U.S. 1221, 114 S.Ct. 2710, 129 L.Ed.2d 837 (1994). We must “consider ‘whether the evidence presents a sufficient disagree ment to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.’ ” Combs v. Plantation Patterns, 106 F.3d 1519, 1526 (11th Cir.1997) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)), cert. denied, — U.S.—, 118 S.Ct. 685, 139 L.Ed.2d 632 (1998). Thus, we must consider all of the evidence in the light most favorable to Taylor and decide whether “ ‘a substantial conflict in evidence [exists] to support a jury question.’ ” See Combs, 106 F.3d at 1526 (quoting Carter v. City of Miami, 870 F.2d 578, 581 (11th Cir.1989)). A. Gender Discrimination Claim" }, { "docid": "21185507", "title": "", "text": "judgments as a matter of law were reversed on appeal. , On appeal, Aronowitz argues that the district court erred in (1) finding, as a matter of law, that the 2003 contract constituted novation of the 2002 contract; (2) reducing the $2.6 million verdict to $1 in nominal damages on the ground that there was insufficient evidence to support the jury’s award on the basis of lost profits; (3)denying Aronowitz’s motion for judgment as a matter of law on the trademark infringement counterclaim; and (4) conditionally granting Health-Chem a new trial in the alternative. Aronowitz also argues that, in the event we reverse either judgment as a matter of law but do not reinstate the jury verdicts, he is entitled to a new trial as to damages only. II. DISCUSSION A. Judgments as a Matter of Law We review de novo a district court’s ruling on a motion for judgment as a matter of law pursuant to Federal Rule of Civil Procedure 50. Doe v. Celebrity Cruises, Inc., 394 F.3d 891, 902 (11th Cir.2004) (citation omitted). In so doing, we apply the same standard as the district court. Rankin v. Evans, 133 F.3d 1425, 1435 (11th Cir.1998). The district court may grant judgment as a matter of law “at the close of evidence or, if timely renewed, after the jury has returned its verdict, as long as ‘there is no legally sufficient evi-dentiary basis for a reasonable jury to find’ ” for the non-moving party. Lipphardt v. Durango Steakhouse of Brandon, Inc., 267 F.3d 1183, 1186 (11th Cir.2001) (quoting Fed.R.Civ.P. 50). In un dertaking this analysis we examine all evidence in a light most favorable to the non-moving party. Celebrity Cruises, 394 F.3d at 902 (citation omitted). 1. Breach of2002 Contract Aronowitz first challenges the court’s judgment as a matter of law in favor of Health-Chem as to breach of the 2002 Contract, citing the following points in support of his argument that there was no novation: 1) the parties modified the final wording such that it terminated all “financial obligations” rather than all “contractual obligations;” 2) the assignment of" }, { "docid": "928311", "title": "", "text": "without requiring him to make additional payments of collateral was “too good to be true.” Wilmington also maintains that the evidence did not support the jury’s conclusion that Wilmington agreed to overfund the policies by lending the Trust $5.5 million annually. Finally, Wilmington contends that the evidence failed to support the court’s order requiring Wilmington to return to Charlie’s estate the initial $3.7 million collateral payment, as well as the second collateral payment of $1.3 million made in 2005. Again, we disagree with Wilmington’s arguments. We review de novo the district court’s denial of Wilmington’s motion for judgment as a matter of law, and consider the evidence in the light most favorable to the plaintiffs, the prevailing parties at trial. See Myrick v. Prime Ins. Syndicate, Inc., 395 F.3d 485, 489-90 (4th Cir. 2005). We “draw all reasonable inferences in [the plaintiffs’] favor without weighing the evidence or assessing the witnesses’ credibility.” Dennis v. Columbia Colleton Med. Ctr., Inc., 290 F.3d 639, 645 (4th Cir. 2002). Entry of judgment as a matter of law is appropriate only if the evidence is legally insufficient to support the jury’s verdict. Id.; see Fed. R. Civ. P. 50(a)-(b). Thus, we must affirm the district court’s denial of Wilmington’s motion if reasonable minds could differ regarding the findings contained in the jury’s special verdict. Dennis, 290 F.3d at 645. Under Delaware law, a breach of contract claim has three elements: (1) a contractual obligation; (2) the defendant’s breach of that obligation; and (3) damage to the plaintiff caused by the breach. HM Wexford LLC v. Encorp, Inc., 832 A.2d 129, 140 (Del. Ch. 2003). In interpreting contractual provisions, Delaware courts seek to uphold the parties’ intention, looking first to the four corners of the agreement to determine whether that intention is evident from the express language in the contract. Paul v. Deloitte & Touche, LLP, 974 A.2d 140, 145 (Del. 2009). Delaware courts accord unambiguous terms their ordinary meaning. Id. We reject Wilmington’s claim that there could not have been a “meeting of the minds” between Charlie and Wilmington, because the premium financing arrangement" }, { "docid": "12947158", "title": "", "text": "denied Dresser’s post-verdict motions for (1) judgment as a matter of law and (2) remittitur or a new trial. Dresser now appeals the denial of these motions. We review de novo the district court’s ruling on a motion for judgment, as a matter of law. See Cozzo v. Tangipahoa Parish Council-President Government, 279 F.3d 273, 280 (5th Cir.2002) (citation omitted). However, when an action is tried by a jury, such a motion is a challenge to the legal sufficiency of the evidence supporting the jury’s verdict. Brown v. Bryan County, OK, 219 F.3d 450, 456 (5th Cir.2000), cert. denied, 532 U.S. 1007, 121 S.Ct. 1734, 149 L.Ed.2d 658 (2001). Accordingly, we consider the evidence “drawing all reasonable inferences and resolving all credibility determinations in the light most favorable to the non-moving party[J” Id. Furthermore, we must always keep in mind “that our standard of review with respect to a jury verdict is especially deferential.” Id. Thus, we will reverse “only if no reasonable jury could have arrived at the verdict.” Snyder v. Trepagnier, 142 F.3d 791, 795 (5th Cir.1998) (citation omitted), cert. dismissed, 526 U.S. 1083, 119 S.Ct. 1493, 143 L.Ed.2d 575 (1999). We review the denial of a motion for new trial for abuse of discretion. See Hidden Oaks Ltd. v. City of Austin, 138 F.3d 1036, 1049 (5th Cir.1998) (“Absent a clear showing of an abuse of discretion, we will not reverse the trial court’s decision to deny a new trial.”) (citations and internal quotation marks omitted). II We first address Dresser’s arguments with respect to liability. A (1) Dresser argues that it is not liable for the breach of the express or implied warranties because the statute of limitations bars any warranty-based cause of action. The Mississippi version of the UCC sets out the statute of limitations for contract claims: (1) An action for breach of any contract for sale must be commenced within six (6) years after the cause of action has accrued. (2) A cause of action accrues when the breach occurs, regardless of the aggrieved party’s lack of knowledge of the breach. A breach" }, { "docid": "23626137", "title": "", "text": "restraint of trade. Rule and Tie Down disagree with U.S. Anchor’s interpretation of Georgia law. IV. STANDARD OF REVIEW We review rulings on motions for judgment as a matter of law by applying de novo the same legal standards used by the district court. Miles v. Tennessee River Pulp & Paper Co., 862 F.2d 1526, 1528 (11th Cir.1989). Both courts consider all the evidence, but all reasonable inferences must be drawn in the nonmovant’s favor. If the jury verdict is supported by substantial evidence — that is, enough evidence that reasonable minds could differ concerning material facts — the motion should be denied. A mere scintilla of evidence in the entire record, however, is insufficient to support a verdict. See Hessen ex rel. Allstate Ins. Co. v. Jaguar Cars, Inc., 915 F.2d 641, 644 (11th Cir.1990). Denial of a motion for a new trial is reviewed for clear abuse of discretion. Id. at 644-45. A district court’s evidentiary rulings are not disturbed unless there is a clear showing of abuse of discretion. Id. at 645. V. ATTEMPTED MONOPOLIZATION There are three essential elements of a claim alleging attempted monopolization under section 2 of the Sherman Act. First, the plaintiff must show that the defendant possessed the specific intent to achieve monopoly power by predatory or exclusionary conduct. Second, the defendant must in fact commit such anticompetitive conduct. Third, there must have existed a dangerous probability that the defendant might have succeeded in its attempt to achieve monopoly power. Spectrum Sports, Inc. v. McQuillan, — U.S. -, -, 113 S.Ct. 884, 890, 122 L.Ed.2d 247 (1993); see McGahee v. Northern Propane Gas Co., 858 F.2d 1487, 1493 (11th Cir.1988), cert. denied, 490 U.S. 1084, 109 S.Ct. 2110, 104 L.Ed.2d 670 (1989); 3 Phillip Areeda & Donald F. Turner, Antitrust Law ¶ 820 at 312 (1978) [hereinafter Areeda & Turner', Antitrust Law ]. We address these elements in reverse order. A. Dangerous Probability of Success To have a dangerous probability of successfully monopolizing a market the defendant must be close to achieving monopoly power. Monopoly power is \"the power to raise prices" }, { "docid": "23626136", "title": "", "text": "early, allegedly non-predatory reductions rather than prices prevailing before U.S. Anchor’s entry into the market. Rule and U.S. Anchor dispute the scope and effect of their settlement agreement in the prior litigation. Rule contends that liability for all predatory sales before the date of the release was discharged. Moreover, Rule maintains that the alleged predatory scheme was ongoing at the time the contract was executed and therefore all post-release liability was discharged as well. U.S. Anchor contends that a general release is ineffective to discharge undiscovered antitrust liability as a matter of law and, moreover, that post-release damages were not waived. We do not reach this dispute as it applies to the federal antitrust claims. As applied to the state law claims, we certify the question, along with the substantive issues of Georgia law, for resolution by the Supreme Court of Georgia. In its cross-appeal U.S. Anchor also argues that the district court should not have granted a directed verdict on its state law claims because Georgia law allows private damage actions for conspiracies in restraint of trade. Rule and Tie Down disagree with U.S. Anchor’s interpretation of Georgia law. IV. STANDARD OF REVIEW We review rulings on motions for judgment as a matter of law by applying de novo the same legal standards used by the district court. Miles v. Tennessee River Pulp & Paper Co., 862 F.2d 1526, 1528 (11th Cir.1989). Both courts consider all the evidence, but all reasonable inferences must be drawn in the nonmovant’s favor. If the jury verdict is supported by substantial evidence — that is, enough evidence that reasonable minds could differ concerning material facts — the motion should be denied. A mere scintilla of evidence in the entire record, however, is insufficient to support a verdict. See Hessen ex rel. Allstate Ins. Co. v. Jaguar Cars, Inc., 915 F.2d 641, 644 (11th Cir.1990). Denial of a motion for a new trial is reviewed for clear abuse of discretion. Id. at 644-45. A district court’s evidentiary rulings are not disturbed unless there is a clear showing of abuse of discretion. Id. at 645." }, { "docid": "23268793", "title": "", "text": "of fiduciary duty, as well as from the trial court’s calculation of the attorneys’ fees awarded. Omnitech also appeals the district court’s ruling which excluded certain expert testimony as to one of Omnitech’s theories of damages, as well as its denial of Omnitech’s motion for new trial on that issue. Finally, Omnitech requests a new trial based upon its view that the jury’s award of $3.5 million in actual damages was so low under the circumstances as to warrant a new trial. Clorox cross-appeals from the district court’s judgment in favor of Omnitech and from the court’s order denying its Rule 50 motion for judgment as a matter of law on the LUTPA claim. Clorox contends that the trial evidence was insufficient to support the jury’s verdict and that the verdict was sufficiently excessive to warrant a remittitur. We first address the propriety of the district court’s grant of Clorox’ motion under Rule 50 on the misappropriation of trade secrets, breach of contract, detrimental reliance, and breach of fiduciary duty counts. A. Judgment as a Matter of Law on the Majority of Omniteeh’s Claims 1. Standard of review A motion for judgment as a matter of law is reviewed de novo by this court, applying the same legal standard as did the trial court. Roberts v. Wal-Mart Stores, Inc., 7 F.3d 1256, 1259 (5th Cir.1993); In evaluating such a motion, formerly referred to as a motion for directed verdict, the court is to view the entire trial record in the light most favorable to the non-movant and draw all inferences in its favor. Becker v. Paine-Webber, Inc., 962 F.2d 524, 526 (5th Cir.1992). If the evidence at trial points so strongly and overwhelmingly in the movant’s favor that reasonable jurors could not reach a contrary conclusion, this court will conclude that the motion should have been granted. See Fed.R.Civ.P. 50(a); Resolution Trust Corp. v. Cramer, 6 F.3d 1102, 1109 (5th Cir.1993). The “decision to grant a directed verdict ... is not a matter of discretion, but a conclusion of law based upon a finding that there is insufficiént evidence to" }, { "docid": "7452847", "title": "", "text": "as a matter of law. Collins v. City of San Diego, 841 F.2d 337, 340 (9th Cir.1988). However, the trial judge has wide latitude in tailoring instructions, and we only review them to assure that they adequately covered the issues presented by the case. Los Angeles Memorial Coliseum Comm’n v. National Football League, 791 F.2d 1356, 1360 (9th Cir.1986), cert. denied, 484 U.S. 826, 108 S.Ct. 92, 98 L.Ed.2d 53 (1987). We apply the same standard of review to rulings on motions for directed verdicts and rulings on motions for judgment notwithstanding the verdict. As we said in Los Angeles Memorial Coliseum Comm’n v. National Football League, 791 F.2d at 1360: [O]ur inquiry is identical to that of the district court: viewing the evidence as a whole and in the light most favorable to the non-moving party ..., does substantial evidence support the jury’s verdict or, on the contrary, is the only reasonable conclusion that can be drawn from the evidence that the moving party ... is entitled to judgment as a matter of law? If reasonable minds could differ about the verdict, neither a directed verdict nor a judgment notwithstanding the verdict is proper. See Peterson v. Kennedy, 771 F.2d 1244, 1256 (9th Cir.1985), cert. denied, 475 U.S. 1122, 106 S.Ct. 1642, 90 L.Ed.2d 187 (1986). DISCUSSION Although the principal question before us is whether plaintiffs can recover damages for churning when they have had an increase in portfolio values that exceeds the amount of commissions they were charged, the defendants have also claimed that there was insufficient evidence to support the verdict, and that the action is barred by the statute of limitations. If defendants were to prevail on either of the latter issues, there would be no need to consider the damage issue. Therefore, we will address them first. A. Sufficiency of the Evidence. The detection and proof of churning is not a simple matter. Churning can only be identified when one considers the whole history of an account, and even then expert testimony is virtually essential. Shad v. Dean Witter Reynolds, Inc., 799 F.2d 525, 530" }, { "docid": "23169925", "title": "", "text": "fact issue preserves it in the fiduciary duty context. Similarly, Turner did not request summary disposition of the fiduciary duty claims relating to the 1963 agreement and its progeny. The summary judgment arguments and the jury issue went to whether any of the actions or omissions stemming from that agreement were fraudulent — not whether they constituted a breach of any fiduciary duty. With respect to these claims, therefore, Turner could not have met his initial summary judgment burden of pointing out an absence of any fact issues by identifying portions of the pleadings, discovery, and affidavits which support its position. See Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986). Thus, the trial court’s grant of summary judgment on these fiduciary duty issues was in error. D. Rule 50(a) Adjudication of Conkling’s Breach of Contract Claim The district court granted judgment as a matter of law on this claim after the close of Conkling’s case, and we review its decision de novo, applying the same legal standard as it used. Omnitech Int'l Inc. v. The Clorox Co., 11 F.3d 1316, 1322-23 (5th Cir.1994). Judgment as a matter of law is proper after a party has been fully heard by the jury on a given issue, and “there is no legally sufficient evidentiary basis for a reasonable jury to have found for that party with respect to that issue.” Fed.R.Civ.P. 50(a). In evaluating such a motion, formerly referred to as a motion for directed verdict, the court is to view the entire trial record in the light most favorable to the non-movant, drawing all factual inferences in favor of Conkling, the non-moving party, and leaving credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts to the jury. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 2513, 91 L.Ed.2d 202 (1986); see also Becker v. PaineWebber, Inc., 962 F.2d 524, 526 (5th Cir.1992). The “decision to grant a directed verdict ... is not a matter of discretion, but a conclusion of law based" }, { "docid": "23648883", "title": "", "text": "and for judgment notwithstanding the verdict on the basis that there was no evidence that Pirch was involved in the incident and that Kipping acted reasonably and in good faith in taking Brenda Harris into custody for evaluation. For the reasons discussed below, we reverse and remand and order the district court to enter judgment for appellants. We have carefully reviewed the record before us and conclude that there is insufficient evidence to support the jury’s verdict. In passing upon a motion for judgment notwithstanding the verdict, we examine the evidence in the light most favorable to sustaining the jury’s verdict and give the prevailing party the benefit of all reasonable inferences which may be drawn from the evidence. Hannah v. Haskins, 612 F.2d 373, 376 (8th Cir. 1980); Cleverly v. Western Electric Co., 594 F.2d 638, 641 (8th Cir. 1979). Judgment notwithstanding the verdict must be granted if the evidence, so viewed, was such that reasonable persons could not differ as to the conclusion that the plaintiff’s proof had failed to meet its burden as to an essential element of the cause of action. Davis v. Burlington Northern, Inc., 541 F.2d 182, 186 (8th Cir.), cert, denied, 429 U.S. 1002, 97 S.Ct. 533, 50 L.Ed.2d 613 (1976). “The verdict ... must be supported by substantial evidence; a mere scintilla is not enough.” Singer Co. v. E. I. Du Pont de Nemours & Co., 579 F.2d 433, 440 (8th Cir. 1978) (citations omitted). The uncontroverted facts establish the following. On August 7, 1979, Robert Harris telephoned the Odessa, Missouri, Police Department requesting aid for a family dispute in which his ex-wife, Brenda Harris, was allegedly trying to kill him. The couple had been divorced on July 7, 1978, but were at that time living together with their two daughters at the home Brenda Harris had been awarded in the dissolution. Two deputy sheriffs from Lafayette County, Missouri, responded to the call but determined that the Harris home was located in Johnson rather than Lafayette County. The Johnson County Sheriff’s Office was notified and Deputy Kipping responded. When Kipping arrived at" }, { "docid": "5605689", "title": "", "text": "sides to this story, and because the panel that initially reviewed this case, along with the original trial judge and jury, apparently took a very different view of both the facts and law than does Judge Tjoflat, I feel compelled to write separately regarding the basis of the panel’s decision. A. The Facts At the outset, it must be emphasized that we do not lightly overturn jury verdicts. In reviewing the denial of a motion for judgment as a matter of law, both the district court and this court must consider all the evidence, “but all reasonable inferences must be drawn in the nonmovant’s favor.” U.S. Anchor Mfg., Inc. v. Rule Indus., Inc., 7 F.3d 986, 993 (11th Cir.1993). We repeatedly have stated that, “ ‘if there is substantial evidence opposed to the motion[ ], that is, evidence of such quality and weight that reasonable and fair-minded men in the exercise of impartial judgment might reach different conclusions, the motion[] should be denied.’” Walls v. Button Gwinnett Bancorp, Inc., 1 F.3d 1198, 1200 (11th Cir.1993) (quoting Wilson v. S & L Acquisition Co., L.P., 940 F.2d 1429, 1436 (11th Cir.1991)). Indeed, even where a jury’s verdict contains apparent inconsistencies, we must make all reasonable efforts to reconcile the verdict; if there is a view of the case which makes the jury’s answers consistent, we must adopt that view and enter judgment accordingly. See Boczar v. Manatee Hospitals & Health Systems, Inc., 993 F.2d 1514, 1516 n. 5 (11th Cir.1993). The panel’s majority opinion adhered to these commands in describing the facts of this case. Judge Tjoflat’s factual recitation, on the other hand, is conveyed in a manner that leads ineluctably to one legal conclusion: The busybodies who injected their social engineering agenda into a fragile family relationship were entitled to qualified immunity. Notwithstanding Judge Tjoflat’s narration of the facts in the light most favorable to this single conclusion, the trial judge and jury appear to have decided this issue quite to the contrary. I will not catalogue in detail the various facts and inferences that are overlooked in Judge Tjoflat’s" }, { "docid": "1386094", "title": "", "text": "Thus, we find no error in the trial court’s instruction. C. Propriety of Jury’s Valuation of Plaintiffs Companies USI next contends that the district court erred in denying its motions for directed verdict, judgment notwithstanding the verdict, and new trial on Gregg’s fraud claim. USI argues that the jury’s award of $8.1 million resulted from its erroneous valuation of Gregg’s companies at $12.5 million; a figure based solely on Gregg’s own opinion as to the worth of his companies. USI claims that both the jury’s valuation and Gregg’s opinion were flawed because they failed to take into account the status of a dredging job in progress, Canal 38 (“C-38”), at the time the parties entered into the contract. According to USI, at the time of closing, the C-38 job was incurring losses and overruns which Gregg failed to consider in his valuation of the companies. Thus, USI maintains that the value of the businesses Gregg sold to it was much less than he acknowledged, and therefore, the verdict cannot stand. Motions for judgments n.o.v. and directed verdicts test the sufficiency of the evidence supporting a jury verdict. J & H Auto Trim Co. v. Bellefonte Ins. Co., 677 F.2d 1365, 1368 (11th Cir.1982). Consideration of the sufficiency of the evidence is a question of law subject to de novo review by this court. Id. We therefore apply the same standard on appeal as the trial court applied in rendering its initial ruling. Id. In evaluating the district court’s denial of a motion for directed verdict or judgment n.o.v.: [T]he Court should consider all of the evidence — not just that evidence which supports the non-mover’s case — but in the light and with all reasonable inferences most favorable to the party opposed to the motion.... [I]f there is substantial evidence opposed to the motions, that is, evidence of such quality and weight that reasonable and fair-minded men in the exercise of impartial judgment might reach different conclusions, the motions should be denied, and the case submitted to the jury.... [I]t is the function of the jury as the tradi tional" }, { "docid": "5605651", "title": "", "text": "of them involve different aspects of the same motion, and therefore we discuss those related issues together. A. Judgment as a Matter of Law Camp and Winkler argue that the district court erred in fading to grant them judgment as a matter of law as to the issues of substantive due process, procedural due process, and whether or not there was an initial verbal order authorizing the Jasper County DFACS to take Rena into protective custody. Prior to the verdict, Camp and Winkler moved for judgment as a matter of law, pursuant to Federal Rule of Civil Procedure 50, at both the close of the plaintiffs evidence and at the close of all the evidence. The district court denied those motions. Camp and Winkler then filed a post-judgment Rule 50 motion, which the district court also denied. ‘We review rulings on motions for judgment as a matter of law by applying de novo the same legal standards used by the district court.” U.S. Anchor Mfg., Inc. v. Rule Indus., Inc., 7 F.3d 986, 993 (11th Cir.1993) (citing Miles v. Tennessee River Pulp & Paper Co., 862 F.2d 1525, 1528 (11th Cir. 1989)), cert. denied, 512 U.S. 1221, 114 S.Ct. 2710, 129 L.Ed.2d 837 (1994). Both the district court and the appellate court must consider all of the evidence, “but all reasonable inferences must be drawn in the nonmovant’s favor.” Id. “If the jury verdict is supported by substantial evidence — that is, enough evidence that reasonable minds could differ concerning material facts — the motion should be denied.” Id. Regarding the substantive due process issue, the jury found in its verdict on special interrogatories that Winkler unilaterally denied Riley the right to visit Rena, “even though her residual parental rights had not been terminated by a court of competent jurisdiction.” R3-69-3. In addition, the jury determined that Winkler acted with “gross negligence, deliberate indifference, or specific intent in doing so.” Id. The jury also concluded that both Camp and Winkler “by deliberate indifference, gross negligence, or intentional misconduct failed in their duty to supervise or care for Regina Rena Landress" }, { "docid": "12947157", "title": "", "text": "asserting again that the statute of limitations barred the warranty claims and, for the first time, asserted that the “economic loss” doctrine barred MCC’s negligent-design claim. The district court denied this motion. The case proceeded to trial. At the end of MCC’s case-in-chief, Dresser renewed its motion for judgment as a matter of law based on the same reasons given in its summary judgment motion. The district court granted the motion in part, holding that the “economic loss” doctrine barred MCC’s negligent design claim. On the remaining warranty claims, however, the case went to the jury. The jury found that Dresser had breached (1) the implied warranty of merchantability; (2) the implied warranty of fitness for a particular purpose; and (3) the express warranty. The jury based its breach of the express warranty finding on a conclusion that the exclusive “repair and replacement” remedy had failed its essential purpose. The jury awarded MCC $4,422,876.92 in damages for the profits lost during the three different periods when the compressor train was malfunctioning. The district court then denied Dresser’s post-verdict motions for (1) judgment as a matter of law and (2) remittitur or a new trial. Dresser now appeals the denial of these motions. We review de novo the district court’s ruling on a motion for judgment, as a matter of law. See Cozzo v. Tangipahoa Parish Council-President Government, 279 F.3d 273, 280 (5th Cir.2002) (citation omitted). However, when an action is tried by a jury, such a motion is a challenge to the legal sufficiency of the evidence supporting the jury’s verdict. Brown v. Bryan County, OK, 219 F.3d 450, 456 (5th Cir.2000), cert. denied, 532 U.S. 1007, 121 S.Ct. 1734, 149 L.Ed.2d 658 (2001). Accordingly, we consider the evidence “drawing all reasonable inferences and resolving all credibility determinations in the light most favorable to the non-moving party[J” Id. Furthermore, we must always keep in mind “that our standard of review with respect to a jury verdict is especially deferential.” Id. Thus, we will reverse “only if no reasonable jury could have arrived at the verdict.” Snyder v. Trepagnier, 142 F.3d" }, { "docid": "455440", "title": "", "text": "was insufficient evidence to allow a reasonable finder of fact to find that Allstate’s conduct amounted to bad faith under the standards set out in Pavia v. State Farm Mutual Automobile Insurance Co., 82 N.Y.2d 445, 452-55, 605 N.Y.S.2d 208, 626 N.E.2d 24 (1993). See Pinto v. Allstate Ins. Co., No. 95-CV-2807, 1998 WL 760269, at *2-*5 (E.D.N.Y. Sept.10, 1998). Because the trial court further found no material issues of fact regarding Allstate’s good faith, it granted Allstate’s motion for summary judgment. Pinto appeals. We reverse. DISCUSSION AND ANALYSIS Standard of Review The standard for granting summary judgment is well-known. It is properly granted when the trial court determines “that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(c); see Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). We review the decision to grant summary judgment de novo, and apply the same standard. See Beatie v. City of New York, 123 F.3d 707, 710-11 (2d Cir.1997). The trial court’s function in deciding such a motion is not to weigh the evidence or resolve issues of fact, but to decide instead whether, after resolving all ambiguities and drawing all inferences in favor of the non-moving party, a rational juror could find in favor of that party. See id. Summary judgment should not be granted where the record discloses facts that could reasonably support a jury’s verdict for the non-moving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Such is the case here. I Bad Faith in Defending and Settling Insurance Claims A. Legal Standard for Bad Faith In New York Because an insurance company has exclusive control over a claim against its insured once it assumes defense of the suit, it has a duty under New York law to act in “good faith” when deciding whether to settle such a claim, and it may be held liable for breach of that duty. The insurer acts in" }, { "docid": "3994212", "title": "", "text": "liable for negligently misrepresenting the Plan to the Employees. The jury found against the Employees on the breach of contract issues. The trial court awarded no damages for Ward’s negligent misrepresentation, however. The trial court ruled that out-of-pocket costs represented the appropriate measure of damages, and that because the Employees’ contributions, with interest, had already been returned, the Employees’ claim must be dismissed. STANDARDS OF REVIEW This court reviews the district court’s determination of Hawaii state law de novo. Matter of McLinn, 739 F.2d 1395, 1403 (9th Cir.1984) (en banc). In reviewing the grant of summary judgment, our task is identical to that of the district court. Water West, Inc. v. Entek Corp., 788 F.2d 627, 628 (9th Cir. 1986). We view the evidence and inferences de novo, in the light most favorable to the non-moving party, and determine whether the district court correctly found that there are no genuine issues of material fact and that the moving party is entitled to judgment as a matter of law. Id. at 628-29. Similarly, in reviewing a district court’s directed verdict, our role is identical to that of the district court. A directed verdict is proper if the evidence permits only one reasonable conclusion. We examine the evidence in the light most favorable to the non-moving party to decide whether substantial evidence could support a finding in that party’s favor. Othman v. Globe Indemnity Co., 759 F.2d 1458, 1463 (9th Cir.1985). We review for an abuse of discretion the trial court’s decisions concerning the admission of evidence, Maddox v. City of Los Angeles, 792 F.2d 1408, 1412 (9th Cir.1986), and the formulation of jury instructions, United States v. Wellington, 754 F.2d 1457, 1463 (9th Cir.), cert. denied, — U.S. —, 106 S.Ct. 593, 88 L.Ed.2d 573 (1985). This court will uphold a trial court’s decision to admit or exclude expert testimony unless it is manifestly erroneous. Taylor v. Burlington Northern R.R. Co., 787 F.2d 1309, 1315 (9th Cir.1986). DISCUSSION In 1974, Congress enacted the Employee Retirement Income Security Act (ERISA), 29 U.S.C. § 1001 et seq. Congress’ primary purpose in enacting this" }, { "docid": "22903440", "title": "", "text": "properly granted only when, viewing the evidence in the light most favorable to the nonmoving party, the record indicates that there is no genuine issue as to any material fact, and that the moving party is entitled to judgment as a matter of law. Id. (citing Fed. R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)). The sua sponte nature of a district court’s summary judgment does not alter this court’s standard of review. Harken Exploration Co. v. Sphere Drake Ins. P.L.C., 261 F.3d 466, 477 (5th Cir.2001). Rather, Fed.R.Civ.P. 56 requires the prompt disposition of cases in the absence of any genuine issues of material fact for the court to consider. Exxon Corp. v. St. Paul Fire and Marine Ins. Co., 129 F.3d 781, 786 (5th Cir.1997). Rule 56 requires a court, under the proper conditions, to grant relief to that party which is entitled to such even if it has not been demanded. Id. Furthermore, a court of appeals reviews a district court’s denial of a motion for judgment as a matter of law de novo by reapplying the same standard used by the district court. Cybor Corp. v. FAS Technologies, Inc., 138 F.3d 1448, 1454 (Fed.Cir.1998); Wayne v. Village of Sebring, 36 F.3d 517, 525 (6th Cir.1994). We can reverse a denial of a motion for JMOL only if the jury’s factual findings are not supported by substantial evidence or if the legal conclusions implied from the jury’s verdict cannot in law be supported by those findings. Id. Additionally, this court’s standard for reviewing a jury verdict is whether “the state of proof is such that reasonable and impartial minds could reach the conclusion the jury expressed in its verdict.” Liberty Mut. Ins. Co. v. Falgoust, 386 F.2d 248, 253 (5th Cir.1967). A jury verdict must stand unless there is a lack of substantial evidence, in the light most favorable to the successful party, to support the verdict. Id. DISCUSSION 1. “Personal Injury” coverage We find that the district court was correct to apply the “eight corners rule,” and" }, { "docid": "19007429", "title": "", "text": "of fiduciary duty and reduced the recovery against Wilkinson and Taulman accordingly, but otherwise denied the Rule 50(b) and Rule 59 motions. Wilkinson and Taulman now appeal. II. SUFFICIENCY OF THE EVIDENCE Wilkinson and Taulman first argue that the evidence presented at trial was insufficient to support the jury’s verdict against them for breach of fiduciary duty, breach of contract, and misappropriation of trade secrets, as well as the jury’s award of exemplary damages. The district court denied Wilkinson and Taulman’s Rule 50(b) motion as to the challenges to the sufficiency of the evidence of breach of fiduciary duty, breach of contract, and the award of exemplary damages. In light of its elimination of the damage awards for misappropriation of trade secrets, the district court declined to consider the motion on that issue. A. Standard of Review “A motion for judgment as a matter of law ... in an action tried by jury is a challenge to the legal sufficiency of the evidence supporting the jury’s verdict.” Flowers v. S. Reg’l Physician Servs., Inc., 247 F.3d 229, 235 (5th Cir.2001) (internal quotations and citations omitted) (omission in original). ‘We review de novo the district court’s ruling on a motion for judgment as a matter of law, applying the same standard as the trial court.” Id. “We consider all of the evidence, drawing all reasonable inferences and resolving all credibility determinations in the light most favorable to the non-moving party.” Brown v. Bryan County, 219 F.3d 450, 456 (5th Cir.2000). Although our review is de novo, “we note that our standard of review with respect to a jury verdict is especially deferential.” Id. (citing Snyder v. Trepagnier, 142 F.3d 791, 795 (5th Cir.1998)). “As such, judgment as a matter of law should not be granted unless the facts and inferences point ‘so strongly and overwhelmingly in the movant’s favor that reasonable jurors could not reach a contrary conclusion.’ ” Flowers, 247 F.3d at 235 (quoting Omnitech Int’l, Inc. v. Clorox Co., 11 F.3d 1316, 1322 (5th Cir.1994)). A jury verdict must be upheld unless “a reasonable jury would not have a" }, { "docid": "21103535", "title": "", "text": "district court’s grant of judgment as a matter of law de novo, applying the same legal standards as those used in the district court. U.S. Anchor Mfg., Inc. v. Rule Indus., Inc., 7 F.3d 986, 993 (11th Cir.1993), cert. denied, 512 U.S. 1221, 114 S.Ct. 2710, 129 L.Ed.2d 837 (1994). We must “consider ‘whether the evidence presents a sufficient disagree ment to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.’ ” Combs v. Plantation Patterns, 106 F.3d 1519, 1526 (11th Cir.1997) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)), cert. denied, — U.S.—, 118 S.Ct. 685, 139 L.Ed.2d 632 (1998). Thus, we must consider all of the evidence in the light most favorable to Taylor and decide whether “ ‘a substantial conflict in evidence [exists] to support a jury question.’ ” See Combs, 106 F.3d at 1526 (quoting Carter v. City of Miami, 870 F.2d 578, 581 (11th Cir.1989)). A. Gender Discrimination Claim Taylor contends that the district court committed reversible error in failing to recognize that she introduced direct evidence of discrimination, thereby creating a jury issue. Taylor also contends that the trial court failed to weigh the evidence she submitted properly to rebut the Postal Service’s articulated legitimate, nondiscriminatory reasons for her non-selection to the EAS-18 promotion. Taylor argues that the initial reason Sumner articulated for his decision to select Scott was that Scott was a married man with a wife and children to support. Taylor contends that in an analogous case, Thompkins v. Morris Brown College, the plaintiff testified that the defendant informed her that his decision to hire male colleagues over her into full-time positions “was because those males had families and needs that the plaintiff did not have.” 752 F.2d 558, 561 (11th Cir.1985). The Thompkins court held that such comments constituted direct evidence of sex discrimination. 752 F.2d at 563. Taylor argues that the same reasoning should apply here, as she claims that Sumner’s decision to select Scott was because Scott was" } ]

[ { "docid": "22589300", "title": "", "text": "basis for determining whether art is analogous under the standards of the Court of Customs and Patent Appeals is to look at whether it deals with a problem similar to that being addressed by the inventor. Indeed, the trial court relied on the following analysis from In re Wood, 599 F.2d 1032, 1036, 202 USPQ 171, 174 (CCPA 1979), quoted in In re Pagliaro, 657 F.2d 1219, 1224, 210 USPQ 888, 892 (CCPA 1981): In resolving the question of obviousness under 35 U.S.C. § 103, we presume full knowledge by the inventor of all the prior art in the field of his endeavor. However, with regard to prior art outside the field of his endeavor, we only presume knowledge from those arts reasonably pertinent to the particular problem with which the inventor was involved. The rationale behind this rule precluding rejections based on combination of teachings from references from non-analogous arts is the realization that an inventor could not possibly be aware of every teaching in every art. Thus, we attempt to more closely approximate the reality of the circumstances surrounding the making of an invention by only presuming knowledge by the inventor of prior art in the field of his endeavor and in analogous arts. The determination that a reference is from a nonanalogous art is therefore twofold. First, we decide if the reference is within the field of the inventor’s endeav- or. If it is not, we proceed to determine whether the reference is reasonably pertinent to the particular problem with which the inventor was involved. [Citation omitted.] To the same effect are Stratoflex, Inc. v. Aeroquip Corp., 713 F.2d 1530, 1535, 218 USPQ 871, 876 (Fed.Cir.1983), In re Mlot-Fijalkowski, 676 F.2d 666, 670, 213 USPQ 713, 716 (CCPA 1982), and Republic Industries v. Schlage Lock Co., 592 F.2d 963, 975, 200 USPQ 769, 781 (7th Cir.1979). With the problems clearly defined by the inventor, we see no basis to hold that the district court erred in determining the scope and content of the prior art. Contrary to Union Carbide’s view, the Fischer affidavit expressed no more than" } ]

[ { "docid": "1006085", "title": "", "text": "when the same device or method, having all of the elements contained in the claim limitations, is described in a single prior art reference. Richardson v. Suzuki Motor Co., 868 F.2d 1226, 1236, 9 USPQ2d 1913, 1920 (Fed.Cir.1989); Perkin-Elmer Corp. v. Computervision Corp., 732 F.2d 888, 894, 221 USPQ 669, 673 (Fed.Cir.1984). An anticipating reference must describe the patented subject matter with sufficient clarity and detail to establish that the subject matter existed in the prior art and that such existence would be recognized by persons of ordinary skill in the field of the invention. See In re Spado, 911 F.2d 705, 708, 15 USPQ2d 1655, 1657 (Fed.Cir.1990); Diversitech Corp. v. Century Steps, Inc., 850 F.2d 675, 678, 7 USPQ2d 1315, 1317 (Fed.Cir.1988). Obviousness is a legal conclusion based on underlying facts of four general types, all of which must be considered by the trier of fact: (1) the scope and content of the prior art; (2) the level of ordinary skill in the art; (3) the differences between the claimed invention and the prior art; and (4) any objective indicia of nonobviousness. See Graham v. John Deere Co., 383 U.S. 1, 17-18, 86 S.Ct. 684, 15 L.Ed.2d 545 (1966); Continental Can Co. USA, Inc. v. Monsanto Co., 948 F.2d 1264, 1270, 20 USPQ2d 1746, 1750-51 (Fed.Cir.1991); Panduit Corp. v. Dennison Mfg. Co., 810 F.2d 1561, 1566-68, 1 USPQ2d 1593, 1594 (Fed.Cir.1987). “Determination of obviousness cannot be based on the hindsight combination of components selectively culled from the prior art to fit the parameters of the patented invention.” ATD Corp. v. Lydall, Inc., 159 F.3d 534, 546, 48 USPQ2d 1321, 1329 (Fed.Cir.1998). There must be a teaching or suggestion within the prior art, within the nature of the problem to be solved, or within the general knowledge of a person of ordinary skill in the field of the invention, to look to particular sources, to select particular elements, and to combine them as combined by the inventor. See Ruiz v. A.B. Chance Co., 234 F.3d 654, 665, 57 USPQ2d 1161, 1167 (Fed.Cir.2000); ATD Corp., 159 F.3d at 546, 48 USPQ2d" }, { "docid": "19272742", "title": "", "text": "prior art references would have been necessary because the invention merely improved the efficiency of the already-known process of laying pavement through the already-known method of merging two sections of asphalt through re-heating the earlier laid section — both of which would have been common knowledge to ordinary artisans in the field of laying asphalt. See also Graham, 383 U.S. at 24-25, 86 S.Ct. 684 (holding invalid for obviousness Graham’s patent disclosing a spring clamp on a plow shank, where claimed invention merely improved mechanical weakness in prior Graham patent, because ordinary artisan would have had mechanical skills sufficient to “immediately see that the thing to do was what Graham did”); id. at 36-37, 86 S.Ct. 684 (holding invalid for obviousness Cook Chemical’s patent disclosing a plastic finger sprayer with a “hold-down” lid serving as a built-in dispenser for bottles of liquid products, where differences from prior art were “exceedingly small and quite nontechnical” and device was “old in the art”). Likewise, in Sakraida, the Supreme Court held invalid for obviousness a patent for a barn having “a paved, sloped barn floor with downhill drains”, “elevated” cow stalls, and a “dam” behind which water may be stored and abruptly released in order to “send a sheet of water cascading through the dairy sweeping the manure to the downhill drains.” Ag Pro, Inc. v. Sak- raida, 474 F.2d 167, 168 (5th Cir.1973) (quoting U.S. Patent No. 3,223,070), rev’d by 425 U.S. 273, 96 S.Ct. 1532, 47 L.Ed.2d 784. Because the cleaning action from an uphill release of water was superior to that from a hose, the claimed invention reduced the quantity of water necessary to clean the barn floor and obviated additional hand labor, e.g., brooms or shovels, shortening the cleaning process from a few hours to a few minutes. Id. The Supreme Court nonetheless negated patent protection, characterizing the invention as “the work of the skillful mechanic, not that of the inventor.” Sakraida, 425 U.S. at 279, 96 S.Ct. 1532 (internal quotation marks omitted). The Court aptly noted that “[exploitation of the principle of gravity adds nothing to the sum" }, { "docid": "22308434", "title": "", "text": "having ordinary skill in the art.” 35 U.S.C. § 103(a) (1994); see Graham v. John Deere Co., 383 U.S. 1, 13-14, 86 S.Ct. 684, 15 L.Ed.2d 545 (1966). Obviousness is ultimately a question of law that rests on underlying factual inquiries including: (1) the scope and content of the prior art; (2) the level of ordinary skill in the art; (3) the differences between the claimed invention and the prior art; and (4) objective considerations of nonobviousness. See Graham, 383 U.S. at 17-18, 86 S.Ct. 684; Robotic Vision Sys., Inc. v. View Eng’g, Inc., 189 F.3d 1370, 1376, 51 USPQ2d 1948, 1953 (Fed.Cir.1999). Objective considerations such as failure by others to solve the problem and copying, see Graham, 383 U.S. at 17-18, 86 S.Ct. 684, “may often be the most probative and cogent evidence” of nonobviousness. Stratoflex, Inc. v. Aeroquip Corp., 713 F.2d 1530, 1538, 218 USPQ 871, 879 (Fed.Cir.1983). In the present case, Zhou’s deposition furnishes persuasive evidence that the West patent is nonobvious by describing ADS’s repeated failures to design the claimed invention. In his deposition, Zhou testified that ADS was entirely unsuccessful in developing the cholestric visible material through independent research. Zhou also explained that ADS “tried for a long time” to build an electrical driver, but its efforts “were all not successful.” Zhou further detailed how ADS’s attempts to develop a polymer-free LCD met with failure and that ADS “did not know how to design” the device until it copied the claimed invention. In addition, Zhou testified that, even after gaining access to the claimed invention, ADS was unable to design around the West patent because such a task was time consuming and “very hard.” Our case law supports Kent’s view that such evidence of failed attempts by others could be determinative on the issue of obviousness. For example, in Alco Standard Corp. v. Tennessee Valley Authority, this court held that when evidence in the record fully supports a finding that others in the industry failed to solve the problem, then objective considerations “may ... establish that an invention appearing to have been obvious in light" }, { "docid": "2975967", "title": "", "text": "contention related to the adaption of a Challenger stainless steel lockset to accommodate a Best core and was confined to the “091”. patent.) 2. Subject matter of the patents was obvious at the time the invention was made to a person having ordinary skill in the art to which the subject matter pertains. This requirement of non-obviousness, although long existing under the common laws, was added by statute to the Patent Law in 1952. As stated by the Supreme Court in Graham v. John Deere Co., 383 U.S. 1, at page 17, 86 S.Ct. 684, 15 L.Ed.2d 545, that while the ultimate question of patent validity is one of law, the (Sec. 103) condition which is but one of three conditions, each of which must be satisfied, lends itself to several basic inquiries; namely, the scope and content of the prior art are to be determined, differences between the prior art and the claims at issue are to be ascertained and the level of ordinary skill in the pertinent art to be resolved. Against this background the obviousness or non-obviousness is determined. The Court further stated that such secondary conditions as commercial success, long-felt but non-solved needs, failure of others, etc., might be utilized to give light to the circumstances surrounding the origin of the subject matters sought to be patented. An inventor is charged with knowledge of all that the prior art, taken as a whole, discloses with respect to the subject matter of the invention, and a person skilled in the art is further presumed to have had at his disposal all relevant prior art constructions and patents. Application of Winslow, 365 F.2d 1017, 53 CCPA 1574 (1966); Hazeltine Research, Inc. v. Brenner, 382 U.S. 252, 86 S.Ct. 335, 15 L.Ed.2d 304. A patent is presumed to be valid and the burden establishing invalidity rests upon the party asserting it. 35 U.S.C. § 282. It has been held, however, that the presumption of validity of a patent does not exist as against evidence of pri- or art not before the Patent Office. Hobbs v. Wisconsin Power & Light" }, { "docid": "20665170", "title": "", "text": "obviousness verdict, “[w]e first presume that the jury resolved the underlying factual disputes in favor of the verdict winner and leave those presumed findings undisturbed if they are supported by substantial evidence. Then we examine the legal conclusion de novo to see whether it is correct in light of the presumed jury fact findings.” Jurgens v. McKasy, 927 F.2d 1552, 1557 (Fed.Cir.1991) (citations omitted). A patent is invalid for obviousness “if the differences between the subject matter sought to be patented and the prior art are such that the subject matter as a whole would have been obvious at the time the invention was made to a person having ordinary skill in the art to which said subject matter pertains.” 35 U.S.C. § 103(a) (2006). “Obviousness is a question of law based on underlying factual findings.... ” Kinetic Concepts, Inc. v. Smith & Nephew, Inc., 688 F.3d 1342, 1360 (Fed.Cir.2012). The underlying factual inquiries include: (1) the scope and content of the prior art, (2) the differences between the prior art and the claims at issue, (3) the level of ordinary skill in the art, and (4) any relevant objective considerations, such as commercial success, long felt but unsolved needs, and the failure of others. Graham v. John Deere Co., 383 U.S. 1, 17-18, 86 S.Ct. 684, 15 L.Ed.2d 545 (1966). By finding the claims nonobvious, the jury presumably found that the disputed prior art is not analogous and therefore not within the scope of the prior art. See Jurgens, 927 F.2d at 1557. Substantial evidence supports the jury’s presumed finding. To be considered within the prior art for purposes of the obviousness analysis, a reference must be analogous. Wang Labs., Inc. v. Toshiba Corp., 993 F.2d 858, 864 (Fed.Cir.1993). Whether a reference is analogous art is a question of fact. Wyers v. Master Lock Co., 616 F.3d 1231, 1237 (Fed.Cir.2010). Prior art is analogous if it is from the same field of endeavor or if it is reasonably pertinent to the particular problem the inventor is trying to solve. Id. The jury was instructed that “the field of the" }, { "docid": "6008905", "title": "", "text": "invention was made. In Graham v. John Deere Co. of Kansas City, the United States Supreme Court laid out a framework for determining obviousness under § 103, noting that while “the ultimate question of patent validity is one of law, the § 103 condition ... lends itself to several basic factual inquiries.” 383 U.S. 1, 17-18, 86 S.Ct. 684, 15 L.Ed.2d 545 (1966). Such inquiries require the Court to examine: 1) the scope and content of the prior art; 2) the level of ordinary skill in the art; and 3) the differences between the claimed invention and the prior art. Id. “Against this background the obviousness or nonobviousness of the subject matter is determined.” KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 399, 127 S.Ct. 1727, 167 L.Ed.2d 705 (2007) (citing Graham, 383 U.S. at 17-18, 86 S.Ct. 684). If Defendant successfully establishes a prima facie case of obviousness, the burden of production then shifts to Plaintiff to present evidence that would support a contrary conclusion. See In re Sullivan, 498 F.3d 1345, 1351 (Fed.Cir.2007). “Evidence rebutting a prima facie case of obviousness can include: evidence of unexpected results, evidence that the prior art teaches away from the claimed invention in any material respect, and evidence of secondary considerations.” Id. (internal quotations and citations omitted). Secondary considerations include such items as “ ‘commercial success, long felt but unsolved needs, failure of others, etc., [which] might be utilized to give light to the circumstances surrounding the origin of the subject matter sought to be patented.’” KSR, 550 U.S. at 399, 127 S.Ct. 1727 (quoting Graham, 383 U.S. at 17-18, 86 S.Ct. 684). 1. Prima facie considerations. a. The scope and content of the prior art. The scope of the prior art is defined as encompassing that which is “reasonably pertinent to the particular problem with which the inventor was involved.” Stratoflex, Inc. v. Aeroquip Corp., 713 F.2d 1530, 1535 (Fed.Cir.1983). Prior art “encompasses not only the field of the inventor’s endeavor but also any analogous arts.” In re GPAC Inc., 57 F.3d 1573, 1577-78 (Fed.Cir.1995). “To ascertain the scope of" }, { "docid": "6008906", "title": "", "text": "(Fed.Cir.2007). “Evidence rebutting a prima facie case of obviousness can include: evidence of unexpected results, evidence that the prior art teaches away from the claimed invention in any material respect, and evidence of secondary considerations.” Id. (internal quotations and citations omitted). Secondary considerations include such items as “ ‘commercial success, long felt but unsolved needs, failure of others, etc., [which] might be utilized to give light to the circumstances surrounding the origin of the subject matter sought to be patented.’” KSR, 550 U.S. at 399, 127 S.Ct. 1727 (quoting Graham, 383 U.S. at 17-18, 86 S.Ct. 684). 1. Prima facie considerations. a. The scope and content of the prior art. The scope of the prior art is defined as encompassing that which is “reasonably pertinent to the particular problem with which the inventor was involved.” Stratoflex, Inc. v. Aeroquip Corp., 713 F.2d 1530, 1535 (Fed.Cir.1983). Prior art “encompasses not only the field of the inventor’s endeavor but also any analogous arts.” In re GPAC Inc., 57 F.3d 1573, 1577-78 (Fed.Cir.1995). “To ascertain the scope of the prior art, a court examines the field of the inventor’s endeavor, and the problem with which the inventor was involved, at the time the invention was made.” Monarch Knitting Mach. Corp. v. Sulzer Morat GmbH, 139 F.3d 877, 881 (Fed.Cir.1998) (internal quotation and citation omitted); see also Bausch & Lomb v. Barnes-Hind/Hydrocurve, 796 F.2d 443, 449 (Fed.Cir.1986) (“To determine whether a reference is within the scope and content of the prior art, first determine if the reference is within the field of the inventor’s endeavor. If it is not, then consider whether the reference is reasonably pertinent to the particular problem with which the inventor was involved.”). Defendant asserts that relevant prior art references for purposes of this case are the patents identified in the patent examiner’s Office Action, namely Howell (U.S. Patent No. 3,150,707), Okude (JP 0156025), Hanson (U.S. Patent No. 3,040,799), and Valentine (U.S. Patent No. 3,610,011). According to Defendant, each of these prior art references teaches some underlying component of producing ribbed and flared dies in a two roll-bending machine. See" }, { "docid": "18032192", "title": "", "text": "of old elements. . ” Great A & P Tea Co. v. Supermarket Corp., 340 U.S. 147, 152, 71 S.Ct. 127, 130, 95 L.Ed. 162 (1950); Sakraida v. Ag Pro., Inc., 425 U.S. 273, 281, 96 S.Ct. 1532, 1537, 47 L.Ed.2d 784 (1976). Although the threaded members of the joint function no differently than those of prior art, the UPTFE tape performs an entirely different function than prior art UPTFE tape. The only commercially known use of extruded UPTFE tape prior to the claimed invention was as an intermediary product used to insulate wire. In its final form, after being wrapped around the wire and heated, the tape formed a coherent, sintered mass, with properties qualitatively different from those of the original tape. In its unsintered form, the tape had no commercial application. Consequently, the claimed invention is distinguishable from those found obvious in Sakraida v. Ag Pro., supra, and Anderson’s-Black Rock v. Pavement Co., 396 U.S. 57, 90 S.Ct. 305, 24 L.Ed.2d 258 (1969), where the inventions merely combined old elements, each of which performed the same function it had in the prior art. That does not dispose of the obviousness problem. Although the inventors utilized a component which had previously been used only in another field, the Court must determine whether it would have been obvious to one skilled in the art to employ that component to solve the problem it solves in the alleged invention. Continental Can Co., Inc. v. Old Dominion Box Co., Inc., 393 F.2d 321 (2d Cir. 1968). At some point, the bringing together of knowledge held in widely diverse fields itself becomes invention. Ling-Temco-Vought, Inc. v. Kollsman Instrument Corp., 372 F.2d 263, 268, n. 1 (2d Cir. 1967). The mere fact, however, that the invention combines references from diverse fields does not necessarily render the invention nonobvious. If the fields utilize such similar principles of design or function that an inventor would reasonably be expected to look to that field for a solution of the problem which the patent device attempted to solve, the invention may be obvious. See, Tokyo Shibaura Electric Co.," }, { "docid": "18032193", "title": "", "text": "performed the same function it had in the prior art. That does not dispose of the obviousness problem. Although the inventors utilized a component which had previously been used only in another field, the Court must determine whether it would have been obvious to one skilled in the art to employ that component to solve the problem it solves in the alleged invention. Continental Can Co., Inc. v. Old Dominion Box Co., Inc., 393 F.2d 321 (2d Cir. 1968). At some point, the bringing together of knowledge held in widely diverse fields itself becomes invention. Ling-Temco-Vought, Inc. v. Kollsman Instrument Corp., 372 F.2d 263, 268, n. 1 (2d Cir. 1967). The mere fact, however, that the invention combines references from diverse fields does not necessarily render the invention nonobvious. If the fields utilize such similar principles of design or function that an inventor would reasonably be expected to look to that field for a solution of the problem which the patent device attempted to solve, the invention may be obvious. See, Tokyo Shibaura Electric Co., Ltd. v. Zenith Radio Corp., supra; Mott Corp. v. Sunflower Industries, Inc., 314 F.2d 872 (10th Cir. 1963); Novelart Manufacturing Co. v. Carlin Container Corp., 363 F.Supp. 58 (D.N.J.1973); In re Grout, supra. The essence of the claimed inventive contribution of Chesnut and Singalewitch lies in their joint recognition of the usefulness of UPTFE tape, which had previously been used only for a different purpose in an unrelated application, as a pipe sealant for threaded joints. The prior use of the tape as wire insulation bears very little relationship to its use as a threaded pipe joint sealant. Some of the properties which make the tape well suited for sealing threaded joints, such as compressibility, lubricity and self-adhesion, have little utility in insulating electrical wire, but are rather inherent qualities of the tape attributable to the use of UPTFE as the primary material and to the method of manufacture. The question to be determined is whether solving the problem of leaking joints by drawing on knowledge of a material used only in an unrelated application" }, { "docid": "6419519", "title": "", "text": "Co. v. E. D. Etnyre & Co., 254 F.Supp. 334, 352 (N.D.Ill.1966). “Even though it should be held that patents relied upon by a defendant as prior art are in a non-analogous art, never the less their disclosures may not be ignored. * * * “The trend of modern decisions including those of the United States Supreme Court is to widen the scope of the prior art which can be considered pertinent.” Endevco Corp. v. Chicago Dynamic Indus., Inc., 268 F.Supp. 640 (N.D.Ill.1967). This court concludes that patents dealing with silo loaders would be a natural source of information for one trying to solve problems relating to unloading silos. Thus Ronning Patent No. 1,556,718 is relevant prior art. Plaintiff has suggested that we must exclude from our consideration “paper patents”, patents which describe devices which are not commercially operable. Although some of the prior art patents mentioned in this case showed devices which were not practical or operable, they still must be considered, if they divulge ideas which are significant. Something may be obvious from a mere “paper patent”. The term “paper patent” is essentially meaningless; the same test of obviousness is to be applied in either case. Note the use of the inoperative Skrivanoff patent in United States v. Adams, 383 U.S. 39, 47-48, 86 S.Ct. 708, 15 L.Ed.2d 572 (1966). Of course, the fact that a device is inoperative has bearing on what it teaches and on what would be obvious from it. “[K]nown disadvantages in old devices which would naturally discourage the search for new inventions may be taken into account in determining obviousness.” Id. at 52, 86 S.Ct. at 714. “The fact that the switch Model 7110 was not commercially successful does not render it any the less a valid prior reference against claims 1 to 6 in issue.” Endevco Corp. v. Chicago Dynamic Indus., Inc., 268 F.Supp. 640, 650 (N.D.Ill.1967). “‘[W]hen courts wish to discredit a reference, and do not quite know how to avoid it, they at times are fond of calling it a “paper patent”; but that is only rhetoric. The doctrine of" }, { "docid": "22308433", "title": "", "text": "Inc., 56 F.2d 1, 3 (5th Cir.1932) (recognizing that newly discovered evidence can give rise to a right to a new trial). Kent contends that it is entitled to a new trial due to. newly discovered evidence — namely, the Zhou deposition. Determining whether the newly discovered evidence warrants a new trial entails the following three-prong analysis: (1) the probability that the evidence would have changed the outcome of the trial; (2) whether the evidence could have been discovered earlier through the moving party’s due diligence; and (3) whether the evidence is merely cumulative or impeaching. See Farm Credit Bank v. Guidry, 110 F.3d 1147, 1155 (5th Cir.1997); Diaz v. Methodist Hosp., 46 F.3d 492, 495 (5th Cir.1995). This court measures whether the newly discovered evidence is potentially outcome determinative by reference to our obviousness jurisprudence. A claimed invention is invalid for obviousness if the differences between it and the prior art “are such that the subject matter as a whole would have been obvious at the time the invention was made to a person having ordinary skill in the art.” 35 U.S.C. § 103(a) (1994); see Graham v. John Deere Co., 383 U.S. 1, 13-14, 86 S.Ct. 684, 15 L.Ed.2d 545 (1966). Obviousness is ultimately a question of law that rests on underlying factual inquiries including: (1) the scope and content of the prior art; (2) the level of ordinary skill in the art; (3) the differences between the claimed invention and the prior art; and (4) objective considerations of nonobviousness. See Graham, 383 U.S. at 17-18, 86 S.Ct. 684; Robotic Vision Sys., Inc. v. View Eng’g, Inc., 189 F.3d 1370, 1376, 51 USPQ2d 1948, 1953 (Fed.Cir.1999). Objective considerations such as failure by others to solve the problem and copying, see Graham, 383 U.S. at 17-18, 86 S.Ct. 684, “may often be the most probative and cogent evidence” of nonobviousness. Stratoflex, Inc. v. Aeroquip Corp., 713 F.2d 1530, 1538, 218 USPQ 871, 879 (Fed.Cir.1983). In the present case, Zhou’s deposition furnishes persuasive evidence that the West patent is nonobvious by describing ADS’s repeated failures to design the claimed invention." }, { "docid": "23454350", "title": "", "text": "a reference in negligence determinations. The legal construct also presumes that all prior art references in the field of the invention are available to this hypothetical skilled artisan. See In re Carlson, 983 F.2d 1032, 1038, 25 U.S.P.Q.2d 1207, 1211 (Fed.Cir.1993). As this court has stated, “virtually all [inventions] are combinations of old elements.” Environmental Designs, Ltd. v. Union Oil Co., 713 F.2d 693, 698, 218 U.S.P.Q. 865, 870 (Fed.Cir.1983); see also Richdel, Inc. v. Sunspool Corp., 714 F.2d 1573, 1579-80, 219 U.S.P.Q. 8, 12 (Fed.Cir.1983) (“Most, if not all, inventions are combinations and mostly of old elements.”). 'Therefore an examiner may often find every element of a claimed invention in the prior art. If identification of each claimed element in the prior art were sufficient to negate patentability, very few patents would, ever issue. Furthermore, rejecting patents solely by finding prior art corollaries for the claimed elements would permit an examiner to use the claimed invention itself as a blueprint for piecing together elements in the prior art to defeat the pat-entability of the claimed invention. Such an approach would be “an illogical and inappropriate process by which to determine patent-ability.” Sensonics, Inc. v. Aerosonic Corp., 81 F.3d 1566, 1570, 38 U.S.P.Q.2d 1551, 1554 (Fed.Cir.1996). To prevent the use of hindsight based on the invention to defeat patentability of the invention, this court requires the examiner to show a motivation to combine the references that create the case of obviousness. In othek words, the examiner must show reasons that the skilled artisan, confronted with the same problems as the inventor and with no knowledge of the claimed invention, would select the elements from the cited prior art references for combination in the manner claimed. This court has identified three possible sources for a motivation to combine references: the nature of the problem to be solved, the teachings of the prior art, and the knowledge of persons of ordinary skill in the art. In this case, the Board relied upon none of these. Rather, just as it relied on the high level of skill in the art to overcome the" }, { "docid": "7306179", "title": "", "text": "by Adams was obvious in the light of the prior art. Id. at 50, 86 S.Ct. at 713. The Court then concluded that the Adams device was non-obvious: Despite the fact that each of the elements of the Adams battery was well known in the prior art, to combine them as did Adams required that a person reasonably skilled in the prior art must ignore that (1) batteries which continued to operate on an open circuit and which heated in normal use were not practical; and (2) water-activated batteries were successful only when combined with electrolytes detrimental to the use of magnesium. These long-accepted factors, when taken together, would, we believe, deter any investigation into such a combination as is used by Adams. Id. at 51-52, 86 S.Ct. at 714; see Trio Process Corp. v. L. Goldstein & Sons, 461 F.2d 66, 71 (3d Cir.) (when prior art indicates that patented procedure will be unproductive, combination of old elements to produce unexpected results may be patentable), cert, denied, 409 U.S. 997, 93 S.Ct. 319, 34 L.Ed.2d 262 (1972). Similarly, one of ordinary skill in the art would have had to ignore the “long-accepted factors” that (1) charged and dumped batteries required some additional factor such as drying, spinning, or a special seal to prolong shelf life; and (2) battery additives had been demon strated to have little, if any, value in enhancing battery operation. Even more persuasive is the fact that even though sodium sulfate was known in the art, the prior art clearly taught against its use. The Court must look to the state of the prior art at the time of the invention. See Funnelcap, Inc. v. Orion Industries, Inc., 421 F.Supp. 700, 707 (D.Del. 1976). The hypothetical inventor is envisioned as working in his shop with all prior art references — which he is presumed to know — hanging on the walls around him as he attempts to solve his problem. See Robintech, Inc. v. Chemidus Waven, Ltd., 450 F.Supp. 823, 833 (D.D.C.1978), aff’d in part and remanded in part, 628 F.2d 142 (D.C. Cir.1980). In late" }, { "docid": "21253666", "title": "", "text": "early 1965 and described by them in the April 1966 issue of the Journal of Applied Meteorology; (2) the Cyclops II and Alecto devices employed by various government agencies as early as 1962; (3) various antecedent patents relating to weather modification devices and techniques; and (4) various antecedent patents relating to airborne delivery and fusing systems. The pertinence of the first three categories of prior art is self-evident. The pertinence of the fourth category of prior art will become apparent after careful consideration is given to the '214 patent’s raison d’etre. Safety is necessarily an important consideration whenever an aircraft is used to launch an explosive device, whatever its nature. The '214 patent teaches a safe method of launching a detonable nucleating device from an aircraft. It solves an aircraft safety problem. While plaintiffs may argue that the subject matter of the patent in suit restricts the pertinent art to that of cloud seeding and that patents relating to airborne delivery and fusing systems are nonanalogous art and thus not relevant to the question of obviousness under 35 U.S.C. §103, the argument is not persuasive. Paraphrasing Geo. J. Meyer Mfg. Co. v. San Marino Electronic Corp., 422 F.2d 1285, 1288, 165 USPQ 23, 25-26 (9th Cir. 1970), in which the art of tracking stars and missiles was deemed pertinent to the art of inspecting bottles, the days when inventions relating to locks are only made by locksmiths are past us. In today’s world, technological breakthroughs which result from the cross-fertilization of minds trained in different disciplines is common. Thus, it is unrealistic to assume or demand that the cloud seeder confine his reading to The Journal of Weather Modification. \"The test of analogous arts is similarity of elements, problems and purposes.” Skega Aktiebolag v. B.F. Goodrich Co., 164 USPQ 333, 334 (6th Cir. 1970). Human knowledge cannot be compartmentalized or pigeonholed, and the courts have recognized this in evaluating the relevancy of art that comes before them in a 35 U.S.C. §103 context. The near unanimous approach by the courts is that \"[t]he prior art that is relevant in evaluating" }, { "docid": "14948777", "title": "", "text": "the reason that it was anticipated by an article entitled “Progress Report on Hot Forging Pre-Alloyed Metal Powders” published in 1952 in the publication Precision Metal Molding, Vol. 10, Nov. 10, 1952, by Lawrence Mott (“Mott”) and by the Reen I invention, U.S. Patent No. 3,150,444, issued September 29, 1964. Second, that the claim description in claim 30 is invalid under 35 U.S.C. § 112 (1982) and cannot be restrictively interpreted to be limited to cutting tools. Third, the defendants contend that the Holtz patent was obvious in light of the prior art and, therefore, invalid under 35 U.S.C. § 103 (1982). Finally, the defendants contend that the Holtz invention is invalid because it constitutes double patenting. With respect to infringement, defendants have stipulated, with two exceptions, to infringement of the elements of Holtz claim 30 by their ASP- steel products, contesting only that their products are formed by hot working and from a supersaturated solid solution. A. Validity Presumption of Validity Under 35 U.S.C. § 282 (1982), a patent is afforded a presumption of validity. Trio Process Corp. v. L. Goldstein’s Sons, Inc., 461 F.2d 66, 70 (3d Cir.), cert. denied 409 U.S. 997, 93 S.Ct. 319, 34 L.Ed.2d 262 (1972), cert. denied 449 U.S. 827, 101 S.Ct. 91, 66 L.Ed.2d 30 (1980); L.D. Schreiber Cheese Company v. Clearfield Cheese Company, 540 F.Supp. 1128, 1134 (W.D.Pa.1982), aff’d 716 F.2d 891 (3d Cir.1983). One who challenges validity has the burden of proving invalidity by a standard of clear and convincing proof. Id.; Northern Engineering and Plastics Corp. v. Eddy, 652 F.2d 333 (3d Cir.1981), cert. denied 454 U.S. 1146, 102 S.Ct. 1009, 71 L.Ed.2d 299 (1982); Universal Athletic Sales Co. v. American Gym, Recreational and Athletic Co., 546 F.2d 530 (3d Cir.1976), cert. denied 430 U.S. 984, 97 S.Ct. 1681, 52 L.Ed.2d 378 (1977). The plaintiff here contends that the statutory presumption of validity is strengthened where the Patent Office specifically has considered the prior art relied upon by the party challenging the patentability in a court action, Universal, 546 F.2d at 540 n. 28; where it cannot be demonstrated" }, { "docid": "5732123", "title": "", "text": "and (4) the extent of any proffered objective indicia of nonobviousness. See Graham v. John Deere Co., 383 U.S. 1, 17-18, 86 S.Ct. 684, 693-94, 15 L.Ed.2d 545 (1966). Thus, to review a summary judgment of obviousness, this court first determines anew whether the.record raises any genuine issues about these critical facts. In doing so, this court remains cognizant of the statutory presumption of validity, see 35 U.S.C. § 282 (1994), and of the movant’s burden to show invalidity of an issued patent by clear and convincing evidence, see Ryko Mfg. Co. v. Nu-Star, Inc., 950 F.2d 714, 716, 21 USPQ2d 1053, 1055 (Fed.Cir.1991). If facts remain in dispute, this court weighs the materiality of the dispute, i.e., whether resolution of the dispute one way or the other makes a difference to the final determination of obviousness. Given the occasional use of archaic terminology in the district court’s opinion, this court also emphasizes that the standard for patentability is the statutory standard. The inquiry is not whether there was a “real discovery of merit” or whether the claimed invention offered a “new solution,” but whether the claimed subject matter as a whole “would have been obvious at the time the invention was made to a person having ordinary skill in the art.” 35 U.S.C. § 103(a) (Supp. 1 1995). III. To ascertain the scope of the prior art, a court examines “the field of the inventor’s endeavor,” Shatterproof Glass Corp. v. Libbey-Owens Ford Co., 758 F.2d 613, 620, 225 USPQ 634, 638 (Fed.Cir.1985), and “ ‘the particular problem with which the inventor was involved,’” Stratoflex, Inc. v. Aeroquip Corp., 713 F.2d 1530, 1535, 218 USPQ 871, 876 (Fed.Cir.1983) (quoting In re Wood, 599 F.2d 1032, 1036, 202 USPQ 171, 174 (CCPA 1979)), at the “time the invention was made,” see 35 U.S.C. § 103(a). The district court defined the problem as “designing the stem segment of a knitting needle ... [to] minimize[ ] needle head breakage and thus maximize[ ] the operating speed of an industrial knitting machine.” (emphasis added). The ’053 patent, on the other hand, describes the inventor’s" }, { "docid": "9571949", "title": "", "text": "“obviousness,” as follows: Obviousness is a legal conclusion based on underlying facts of four general types, all of which must be considered by the trier of fact: (1) the scope and content of the prior art; (2) the level of ordinary skill in the art; (3) the differences between the claimed invention and the prior art; and (4) any objective indi-cia of nonobviousness. See Graham v. John Deere Co., 383 U.S. 1, 17-18, 86 S.Ct. 684, 15 L.Ed.2d 545 (1966); Continental Can Co. USA, Inc. v. Monsanto Co., 948 F.2d 1264, 1270, 20 USPQ2d 1746, 1750-51 (Fed.Cir.1991); Panduit Corp. v. Dennison Mfg. Co., 810 F.2d 1561, 1566-68, 1 USPQ2d 1593, 1594 (Fed.Cir.1987). “Determination of obviousness cannot be based on the hindsight combination of components selectively culled from the prior art to fit the parameters of the patented invention.” ATD Corp. v. Ly-dall, Inc., 159 F.3d 534, 546, 48 USPQ2d 1321, 1329 (Fed.Cir.1998). There must be a teaching or suggestion within the prior art, within the nature of the problem to be solved, or within the general knowledge of a person of ordinary skill in the field of the invention, to look to particular sources, to select particular elements, and to combine them as combined by the inventor. See Ruiz v. A.B. Chance Co., 234 F.3d 654, 665, 57 USPQ2d 1161, 1167 (Fed. Cir.2000); ATD Corp., 159 F.3d at 546, 48 USPQ2d at 1329; Heidelberger Druckmaschinen AG v. Hantscho Commercial Prods., Inc., 21 F.3d 1068, 1072, 30 USPQ2d 1377, 1379 (Fed.Cir.1994) (“When the patented invention is made by combining known components to achieve a new system, the prior art must provide a sug- gestión or motivation to make such a combination.”). Crown Operations Int’l, Ltd. v. Solutia Inc., 289 F.3d 1367, 1375-76 (Fed.Cir. 2002). While these principles are doubtless instructive in the context of obviousness-type double patenting, they may not transfer as directly to that context as Donaldson suggests. First, neither In re Longi nor Eli Lilly, the two authorities upon which Donaldson relies, would justify such a sweeping consideration of “obviousness in light of prior art” in the context of" }, { "docid": "5732124", "title": "", "text": "whether the claimed invention offered a “new solution,” but whether the claimed subject matter as a whole “would have been obvious at the time the invention was made to a person having ordinary skill in the art.” 35 U.S.C. § 103(a) (Supp. 1 1995). III. To ascertain the scope of the prior art, a court examines “the field of the inventor’s endeavor,” Shatterproof Glass Corp. v. Libbey-Owens Ford Co., 758 F.2d 613, 620, 225 USPQ 634, 638 (Fed.Cir.1985), and “ ‘the particular problem with which the inventor was involved,’” Stratoflex, Inc. v. Aeroquip Corp., 713 F.2d 1530, 1535, 218 USPQ 871, 876 (Fed.Cir.1983) (quoting In re Wood, 599 F.2d 1032, 1036, 202 USPQ 171, 174 (CCPA 1979)), at the “time the invention was made,” see 35 U.S.C. § 103(a). The district court defined the problem as “designing the stem segment of a knitting needle ... [to] minimize[ ] needle head breakage and thus maximize[ ] the operating speed of an industrial knitting machine.” (emphasis added). The ’053 patent, on the other hand, describes the inventor’s problem as “providing [knitting needles] with a means which avoids head breakages or lets [breakages] start to an extent worth mentioning only at higher knitting speeds.” ’053 patent, col. 1, lines 48-51. The district court’s formulation of the problem confronting the ’053 inventors presumes the solution to the problem — modification of the stem segment. Defining the problem in terms of its solution reveals improper hindsight in the selection of the prior art relevant to obviousness. See, e.g., In re Antle, 58 C.C.P.A. 1382, 444 F.2d 1168, 1171-72, 170 USPQ 285, 287-88 (CCPA 1971) (warning against selection of prior art with hindsight). By importing the ultimate solution into the problem facing the inventor, the district court adopted an overly narrow view of the scope of the prior art. It also infected the district court’s determinations about the content of the prior art. The district court based its conclusion of obviousness heavily on its determination that the prior art showed a “trend” towards increasingly lower stem segment heights. A “trend” might very well constitute a suggestion" }, { "docid": "20665171", "title": "", "text": "issue, (3) the level of ordinary skill in the art, and (4) any relevant objective considerations, such as commercial success, long felt but unsolved needs, and the failure of others. Graham v. John Deere Co., 383 U.S. 1, 17-18, 86 S.Ct. 684, 15 L.Ed.2d 545 (1966). By finding the claims nonobvious, the jury presumably found that the disputed prior art is not analogous and therefore not within the scope of the prior art. See Jurgens, 927 F.2d at 1557. Substantial evidence supports the jury’s presumed finding. To be considered within the prior art for purposes of the obviousness analysis, a reference must be analogous. Wang Labs., Inc. v. Toshiba Corp., 993 F.2d 858, 864 (Fed.Cir.1993). Whether a reference is analogous art is a question of fact. Wyers v. Master Lock Co., 616 F.3d 1231, 1237 (Fed.Cir.2010). Prior art is analogous if it is from the same field of endeavor or if it is reasonably pertinent to the particular problem the inventor is trying to solve. Id. The jury was instructed that “the field of the invention is circuit board testers and test fixtures used in the manufacture of electronics.” J.A. 1984. The disputed pri- or art — rock carvings, engraved signage, and Prussian Blue — is not part of the field of circuit board testers and test figures. Therefore, the disputed prior art can be analogous only if it is reasonably pertinent to the particular problem solved by the inventor. Wyers, 616 F.3d at 1237. Although “familiar items may have obvious uses beyond their primary purposes,” KSR Int’l Co. v. Teleflex, Inc., 550 U.S. 398, 420, 127 S.Ct. 1727, 167 L.Ed.2d 705 (2007), a reference is only reasonably pertinent when it “logically would have commended itself to an inventor’s attention in considering his problem,” In re Clay, 966 F.2d 656, 659 (Fed.Cir.1992). The jury heard testimony that a person of ordinary skill in the art would not have thought about rock carvings, engraved signage, or Prussian Blue in considering how to mark interface plates. J.A. 1387-88, 1397, 1430-32, 1434, 1443-44, 1447. The jury was entitled to weigh this testimony, find" }, { "docid": "14948778", "title": "", "text": "validity. Trio Process Corp. v. L. Goldstein’s Sons, Inc., 461 F.2d 66, 70 (3d Cir.), cert. denied 409 U.S. 997, 93 S.Ct. 319, 34 L.Ed.2d 262 (1972), cert. denied 449 U.S. 827, 101 S.Ct. 91, 66 L.Ed.2d 30 (1980); L.D. Schreiber Cheese Company v. Clearfield Cheese Company, 540 F.Supp. 1128, 1134 (W.D.Pa.1982), aff’d 716 F.2d 891 (3d Cir.1983). One who challenges validity has the burden of proving invalidity by a standard of clear and convincing proof. Id.; Northern Engineering and Plastics Corp. v. Eddy, 652 F.2d 333 (3d Cir.1981), cert. denied 454 U.S. 1146, 102 S.Ct. 1009, 71 L.Ed.2d 299 (1982); Universal Athletic Sales Co. v. American Gym, Recreational and Athletic Co., 546 F.2d 530 (3d Cir.1976), cert. denied 430 U.S. 984, 97 S.Ct. 1681, 52 L.Ed.2d 378 (1977). The plaintiff here contends that the statutory presumption of validity is strengthened where the Patent Office specifically has considered the prior art relied upon by the party challenging the patentability in a court action, Universal, 546 F.2d at 540 n. 28; where it cannot be demonstrated that any uncited prior art was more pertinent than that cited by the patent examiner, General Battery Corp. v. Gould, Inc., 545 F.Supp. 731, 740 (D.Del.1982); see also Otto v. Koppers Company, 246 F.2d 789 (4th Cir.1957), cert. denied 355 U.S. 939, 78 S.Ct. 427, 2 L.Ed.2d 420 (1958); where the party who challenges validity participated fully in an inter partes proceeding before the PTO and raised virtually the same contentions and prior art before the PTO that the party asserts in the court proceedings; and where the patent claims have been reviewed and affirmed by the PTO Board of Appeals. CMI Corp. v. Metropolitan Enterprises, Inc., 534 F.2d 874, 880 (10th Cir.1976). However, as defendants correctly note, the statutory presumption of validity attaching to an issued patent may be weakened where it can be shown to the court that relevant prior art was not examined by the PTO. Allegheny Drop Forge Company v. Portec, Inc., 541 F.2d 383, 384 n. 3 (3d Cir.1976); Black & Decker Manufacturing Company v. Disston, Inc., 436 F.Supp. 1175," } ]

[ { "docid": "2731921", "title": "", "text": "not alone dispositive; indeed, the Supreme Court has held that a suspect interrogated in his own bedroom in a boardinghouse that had other occupants was in custody under Miranda, see Orozco v. Texas, 394 U.S. 324, 325-26, 89 S.Ct. 1095, 1096-97, 22 L.Ed.2d 311 (1969), but that a suspect who voluntarily came to a police station was not, see Mathiason, 429 U.S. at 494-95, 97 S.Ct. at 713-14. More important than the familiarity of the surroundings where Sprosty was being held is the degree to which the police dominated the scene. See Griffin, 7 F.3d at 1518-19 (“Where police are in full control of the questioning environment, custody is more easily found.”)- When the police arrived at the mobile home, they surrounded Sprosty’s car, blocked the driveway from his car to the street, and escorted him inside. Four of the officers searched for the photographs while Lund, who was armed and in uniform, remained with Sprosty to guard him. Although a purely subjective intent on Lund’s part not to allow Sprosty to leave the presence of an officer is not relevant for purposes of determining whether Sprosty was in custody, see Stansbury v. California, - U.S. -, -, 114 S.Ct. 1526, 1529, 128 L.Ed.2d 293 (1994) (per curiam); Berkemer, 468 U.S. at 442, 104 S.Ct. at 3151-52, as the search progressed, it became increasingly apparent that Lund’s role at the mobile home was to guard Sprosty, not to execute the search warrant. Moreover, during the nearly three-hour period that the officers searched the home, they repeatedly asked Sprosty to tell them where the incriminating photographs were located, and Valley offered him a deal if he would cooperate by disclosing the location of the photographs. Although the district court recognized that giving Miranda warnings to a suspect does not convert an otherwise noncustodial detention into a custodial arrest under Miranda, the court did express concern that in light of the totality of the circumstances facing Sprosty, the formal administration of the Miranda warnings by the police would have led a reasonable person in Sprosty’s position to believe that he was under" } ]

[ { "docid": "11293686", "title": "", "text": "to habeas relief on this ground. IV. Next, Loza argues that the Ohio Supreme Court’s decision upholding the vol-untariness and admissibility of his confession was based on an unreasonable determination of the facts and was contrary to or an unreasonable application of clearly established federal law. After Dorothy Jackson implicated Loza in her family members’ killings and police discovered the victims, Detectives Enable and Jeffery questioned Loza at the detention center where he was being held. At the beginning of the interview, which was videotaped, Loza waived his Miranda rights. After about an hour of questioning, Loza confessed to the killings. The trial court denied Loza’s motion to suppress his confession, and the video of his confession was played at trial. The Ohio Supreme Court held that Loza’s confession was voluntary and properly admitted. The Due Process Clause of the Fourteenth Amendment provides that no State shall “deprive any person of life liberty, or property, without due process of law.” U.S. Const, amend. XIV. “[C]ertain interrogation techniques, either in isolation or as applied to the unique characteristics of a particular suspect, are so offensive to a civilized system of justice that they must be condemned under the Due Process Clause of the Fourteenth Amendment.” Miller v. Fenton, 474 U.S. 104, 109, 106 S.Ct. 445, 88 L.Ed.2d 405 (1985). In order to determine whether a confession was voluntarily made, a court must evaluate the totality of the circumstances surrounding the interrogation to determine whether the defendant’s “will [was] overborne and his capacity for self-determination critically impaired.” Schneckloth v. Bustamante, 412 U.S. 218, 225-26, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973). “[C]oercive police activity is a necessary predicate to the finding that a confession is not ‘voluntary.’ ” Colorado v. Connelly, 479 U.S. 157, 167, 107 S.Ct. 515, 93 L.Ed.2d 473 (1986). “[C]oercion can be mental as well as physical.” Blackburn v. Alabama, 361 U.S. 199, 206, 80 S.Ct. 274, 4 L.Ed.2d 242 (1960). In addition to “the crucial element of police coercion,” courts consider “the length of the interrogation, its location, its continuity, the defendant’s maturity, education, physical condition, and mental" }, { "docid": "23588342", "title": "", "text": "in any significant way’ ” must be given Miranda warnings before being questioned. Stansbury v. California, 511 U.S. 318, 322, 114 S.Ct. 1526, 128 L.Ed.2d 293 (1994) (per curiam) (quoting Miranda v. Arizona, 384 U.S. 436, 444, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966)). In Miranda, the Supreme Court afforded protection to the Fifth Amendment privilege against compelled self-incrimination “from the coercive pressures that can be brought to bear upon a suspect in the context of custodial interrogation.” Berkemer v. McCarty, 468 U.S. 420, 428, 104 S.Ct. 3138, 82 L.Ed.2d 317 (1984). To determine whether a statement is voluntary, we look to see “whether the confession was extracted by any sort of threats or violence, or obtained by any direct or implied promises, however slight, or by the exertion of improper influence.” Hutto v. Ross, 429 U.S. 28, 30, 97 S.Ct. 202, 50 L.Ed.2d 194 (1976) (per curiam) (internal quotation marks and alterations omitted). “[C]oercive police activity is a necessary predicate to the finding that a confession is not voluntary.” United States v. Braxton, 112 F.3d 777, 780 (4th Cir.1997) (internal quotation marks omitted). However, “[t]he mere existence of threats, violence, implied promises, improper influence, or other coercive police activity ... does- not automatically render a confession involuntary. The proper inquiry is whether the defendant’s will has been overborne or his capacity for self-determination critically impaired.” Id. at 780 (internal quotation marks omitted). “[C]ourts must consider the totality of the circumstances, including the characteristics of the defendant, the setting of the interview, and the details of the interrogation.” Id. at 781 (internal quotation marks omitted); see also United States v. Howard, 115 F.3d 1151, 1154 (4th Cir.1997) (“An individual is ‘in custody’ for Miranda purposes when, under the totality of the circumstances, the ‘suspect’s freedom of action is curtailed to a degree associated with formal arrest.’ ” (quoting Berkemer, 468 U.S. at 440, 104 S.Ct. 3138)). When reviewing a motion to suppress admissions of a defendant on the grounds that they were made during a custodial interrogation without Miranda warnings, we must accept the district court’s findings of fact on" }, { "docid": "23667923", "title": "", "text": "contention in turn. A. The inquiry into whether an individual waived effectuation of the rights conveyed in the Miranda warnings has two distinct dimensions. Edwards v. Arizona, 451 U.S. 477, 482, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981). First, the relinquishment of the right “must have been voluntary in the sense that it was the product of free and deliberate choice rather than intimidation, coercion, or deception.” Moran v. Burbine, 475 U.S. 412, 421, 106 S.Ct. 1135, 89 L.Ed.2d 410 (1986). Second, “the waiver must have been made with a full awareness of both the nature of the right being abandoned and the consequences of the decision to abandon it. Only if the ‘totality of the circumstances surrounding the interrogation’ reveal both an uncoerced choice and the requisite level of comprehension may a court properly conclude that the Miranda rights have been waived.” Id. Cristobal insists that the totality of the circumstances demonstrates his waiver was not only involuntary, but was also not knowingly and intelligently given. After carefully reviewing the record, we find to the contrary on each assertion. 1. Cristobal’s statements must be suppressed if his decision to waive his Fifth Amendment privilege was involuntarily made. We engage in the same inquiry when analyzing the voluntariness of a Miranda waiver as when analyzing the voluntariness of statements under the Due Process Clause. See Colorado v. Connelly, 479 U.S. 157, 169, 107 S.Ct. 515, 93 L.Ed.2d 473 (1986) (“There is obviously no reason to require more in the way of a “voluntariness” inquiry in the Miranda waiver context than in the Fourteenth Amendment confession context.”). The test for, determining whether a statement is involuntary under the Due Process Clause “is whether the defendant’s will has been ‘overborne’ or his ‘capacity for self-determination critically impaired,’ ” United States v. Pelton, 835 F.2d 1067, 1071 (4th Cir.1987) (quoting Schneckloth v. Bustamante, 412 U.S. 218, 225, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973)); see also Dickerson v. United States, 530 U.S. 428, 434, 120 S.Ct. 2326, 147 L.Ed.2d 405 (2000), because of coercive police conduct. Colorado v. Spring, 479 U.S. 564, 574," }, { "docid": "13324607", "title": "", "text": "of circumstances, including the specific interrogation tactics employed, the details of the interrogation, and the characteristics of the accused. Id. The court must consider the confession in light of the age of the defendant, his level of education and intelligence, and the length of the questioning. Schneckloth v. Bustamante, 412 U.S. 218, 225-26, 93 S.Ct. 2041, 2047, 36 L.Ed.2d 854 (1973). However, we presume factual questions answered by the state trial court such as “whether the police in fact engaged in the intimidation tactics alleged by defendant” are correct. Hill v. Lockhart, 927 F.2d 340, 346 (8th Cir.) (quoting Miller v. Fenton, 474 U.S. 104, 112, 106 S.Ct. 445, 450, 88 L.Ed.2d 405 (1985)), cert. denied, — U.S.-, 112 S.Ct. 344, 116 L.Ed.2d 283 (1991). Coercive police pressure is a predicate to the finding that the confession is not voluntary and violates an accused’s due process rights. Colorado v. Connelly, 479 U.S. 157, 167, 107 S.Ct. 515, 521, 93 L.Ed.2d 473 (1986). We reject Battle’s contention that his confession was involuntary and violated his due process rights. The state trial court, and the district court in its own examination of the facts, found that Battle voluntarily confessed after being given repeated Miranda warnings. There is substantial evidence in the record to support these findings. Therefore, we affirm the district court’s denial for federal habeas relief on this claim. IY. Battle next asserts that the district court erred in denying him habeas relief based on the state trial court’s exclusion of a venireperson for caus.e on the ground that the venireperson stated in response to voir dire questions that he would automatically refuse to consider imposing the death penalty. Battle argues that the state trial court’s exclusion of this venireperson violates Witherspoon v. Illinois, 391 U.S. 510, 522, 88 S.Ct. 1770, 1777, 20 L.Ed.2d 776 (1968). Witherspoon holds it is a violation óf a defendant’s right to trial by a cross-section of the community to exclude prospective jurors for cause merely because they express general objections to, or scruples against, imposing the death penalty. Id. “[A] juror may not be challenged" }, { "docid": "8570676", "title": "", "text": "in Clark’s possible waiver of his sixth amendment right to counsel representation and advice prior to subjecting himself to police interrogation. It is virtually impossible here to separately analyze and consider the claimed violation of those rights. We observe that evidence which is offered to show that a confession was the product of coercion may also be relevant on the issue of whether there was an accompanying voluntary waiver of the right to counsel. Presented for determination here is the question whether the fifth and sixth amendment rights of an accused, who had previously indicated his desire to consult with an attorney, were violated when he was interviewed at the insistence of government agents without the presence of an attorney. The single issue underlying the purported waiver of each of those constitutional rights is whether the record supports the conclusion that such waiver was voluntarily made. The standard of voluntariness is not whether the accused was coerced in traditional terms but whether appropriate measures were taken to safeguard his rights and to insure that his statements were the product of free choice. Miranda v. Arizona, 384 U.S. 436, 457, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). “In determining whether a defendant’s will was overborne in a particular ease, the Court has assessed the totality of all the surrounding circumstances — both the characteristics of the accused and the details of the interrogation.” Schneckloth v. Bustamonte, 412 U.S. 218, 226, 93 S.Ct. 2041, 2047, 36 L.Ed.2d 854 (1973). The legally significant facts surrounding the interrogation session at which Clark confessed are undisputed. During the initial interview by F.B.I. agents following his arrest, Clark indicated his desire to speak with an attorney prior to answering any questions. “If the individual states that he wants an attorney, the interrogation must cease until an attorney is present.” Miranda v. Arizona, 384 U.S. 436, 474, 86 S.Ct. 1602, 1628, 16 L.Ed.2d 694 (1966). The Government recognizes this principle but insists that Clark, at the subsequent interview waived his right to counsel and voluntarily confessed to the offense charged. We recognize the possibility that, under given" }, { "docid": "12078051", "title": "", "text": "and the provision of proper Miranda warnings-prevents this court from concluding that the [state] courts unreasonably applied clearly established federal law.”). So we are unable to find that the decision of the Indiana Supreme Court was “contrary to” clearly established federal law as determined by the Supreme Court. Turning to whether the Indiana Supreme Court unreasonably applied clearly established federal law to this case, we come up equally short. Allen argues that Detective Logsdon’s conduct coerced him into making statements and involuntarily waiving his rights. Pursuant to Supreme Court authority, a “defendant may waive effectuation” of the rights conveyed in the Miranda warnings “provided the waiver is made voluntarily, knowingly and intelligently.” Moran v. Burbine, 475 U.S. 412, 421, 106 S.Ct. 1135, 89 L.Ed.2d 410 (1986) (quoting Miranda, 384 U.S. at 444, 475, 86 S.Ct. 1602). The voluntariness test takes into consideration “the totality of all the surrounding circumstances — both the characteristics of the accused and the details of the interrogation.” Schneckloth v. Bustamonte, 412 U.S. 218, 226, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973). These circumstances may include the length of the interrogation, the defendant’s maturity, education, and mental health, as well as whether the defendant was advised of his Miranda rights. Withrow v. Williams, 507 U.S. 680, 693-94, 113 S.Ct. 1745, 123 L.Ed.2d 407 (1993). But the element of coercion is “crucial” to a determination that a confession was involuntary. Id.; Colorado v. Connelly, 479 U.S. 157, 167, 107 S.Ct. 515, 93 L.Ed.2d 473 (1986) (“coercive police activity is a necessary predi cate to the finding that a confession is not ‘voluntary’ ”). Here, the Indiana Supreme Court considered the circumstances surrounding Allen’s interrogation and found that there was no coercion. 686 N.E.2d at 772-73 (discussing Allen’s first voluntary waiver two hours before the second waiver, his conduct during the interrogation, his “apparently normal mental capacity,” and his “extensive criminal record” and familiarity with the interrogation process). We are not able to say that finding was “objectively unreasonable.” Jackson, 348 F.3d at 662 (quoting Lockyer v. Andrade, 538 U.S. 63, 123 S.Ct. 1166, 155 L.Ed.2d 144 (2003))." }, { "docid": "3490660", "title": "", "text": "has long held “that certain interrogation techniques, either in isolation or as applied to the unique characteristics of a particular suspect, are so offensive to a civilized system of justice that they must be condemned under the Due Process Clause of the Fourteenth Amendment.” Miller v. Fenton, 474 U.S. 104, 109, 106 S.Ct. 445, 88 L.Ed.2d 405 (1985) (emphasis added). Whether a confession is the involuntary product of coercion is judged by the totality of the circumstances-including an examination of both the conduct of the officers and the characteristics of the accused. Rachlin v. United States, 723 F.2d 1373, 1377 (8th Cir.1983); see also Schneckloth v. Bustamonte, 412 U.S. 218, 226, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973). The Supreme Court has long indicated that one of the key concerns in judging whether confessions were involuntary, or the product of coercion, was the intelligence, mental state, or any other factors possessed by the defendant that might make him particularly suggestible, and susceptible to having his will overborne. See Colorado v. Connelly, 479 U.S. 157, 165, 107 S.Ct. 515, 93 L.Ed.2d 473 (1986) (stating that mental condition is surely relevant to an individual’s susceptibility to police coercion); Spano v. New York, 360 U.S. 315, 321-22, 79 S.Ct. 1202, 3 L.Ed.2d 1265 (1959) (reversing conviction because confession was involuntary because of effect of psychological coercion on suspect who was foreign-born, completed one-half year of high school, and had a history of mental instability); Fikes v. Alabama, 352 U.S. 191, 196-98, 77 S.Ct. 281, 1 L.Ed.2d 246 (1957) (reversing a conviction because the coercion applied against a person who was “weak of will or mind” deprived him of due process of law); see also United States v. Jorgensen, 871 F.2d 725, 729 (8th Cir.1989) (stating that when judging the volun-tariness of a confession one must consider the conduct of law enforcement officers and the ability of the suspect to resist coercion). The appellants’ own investigative reports reveal they were aware that although Wilson graduated from high school, he had attended largely, if not exclusively, special education classes; school officials considered him mentally handicapped;" }, { "docid": "2124105", "title": "", "text": "made a knowing, voluntary, and intelligent waiver of his constitutional rights. Id. at 12. The district court found that Moore’s treatment by the police was unnecessarily harsh but that the police advised Moore of his Miranda rights, had him sign a waiver, and had him re-affirm that waiver before they interrogated him. The court deferred to the state courts’ factual finding that there was no credible evidence that Moore requested an attorney either before or during his custodial interrogation. The district court concluded that the Ohio Supreme Court’s decision was not an unreasonable application of Supreme Court precedent. Moore, 581 F.Supp.2d at 912-15. Analysis In Miranda v. Arizona, 384 U.S. 436, 478, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), the Supreme Court held that under the Fifth Amendment, a suspect may not be subjected to custodial interrogation until he has been informed that he has a right to counsel, that he has a right to remain silent, and that anything he says can be used against him in a court of law. To be valid, a waiver of these rights must be voluntary, knowing, and intelligent. Colorado v. Spring, 479 U.S. 564, 573, 107 S.Ct. 851, 93 L.Ed.2d 954 (1987). To determine whether a waiver is valid, courts examine the totality of the circumstances. Fare v. Michael C., 442 U.S. 707, 724-25, 99 S.Ct. 2560, 61 L.Ed.2d 197 (1979) (citing Miranda, 384 U.S. at 475-77, 86 S.Ct. 1602). Courts consider a number of factors, including “the age, education, and intelligence of the suspect; whether the suspect was advised of his Miranda rights; the length of the questioning; and the use of physical punishment or the deprivation of food, sleep or other creature comforts.” Jackson v. McKee, 525 F.3d 430, 433-34 (6th Cir.2008) (citing Schneckloth v. Bustamonte, 412 U.S. 218, 226, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973)). “A confession is involuntary only if there is (1) police coercion or overreaching which (2) overbore the accused’s will and (3) caused the confession.” Hill v. Anderson, 300 F.3d 679, 682 (6th Cir.2002) (citing Colorado v. Connelly, 479 U.S. 157, 165-66, 107 S.Ct." }, { "docid": "23667924", "title": "", "text": "the contrary on each assertion. 1. Cristobal’s statements must be suppressed if his decision to waive his Fifth Amendment privilege was involuntarily made. We engage in the same inquiry when analyzing the voluntariness of a Miranda waiver as when analyzing the voluntariness of statements under the Due Process Clause. See Colorado v. Connelly, 479 U.S. 157, 169, 107 S.Ct. 515, 93 L.Ed.2d 473 (1986) (“There is obviously no reason to require more in the way of a “voluntariness” inquiry in the Miranda waiver context than in the Fourteenth Amendment confession context.”). The test for, determining whether a statement is involuntary under the Due Process Clause “is whether the defendant’s will has been ‘overborne’ or his ‘capacity for self-determination critically impaired,’ ” United States v. Pelton, 835 F.2d 1067, 1071 (4th Cir.1987) (quoting Schneckloth v. Bustamante, 412 U.S. 218, 225, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973)); see also Dickerson v. United States, 530 U.S. 428, 434, 120 S.Ct. 2326, 147 L.Ed.2d 405 (2000), because of coercive police conduct. Colorado v. Spring, 479 U.S. 564, 574, 107 S.Ct. 851, 93 L.Ed.2d 954 (1987). To determine whether a-defendant’s will has been overborne or his capacity for self determination critically impaired, courts must consider the “totality of the circumstances,” including the characteristics of the defendant, the setting of the interview, and the details of the interrogation. Pelton, 835 F.2d at 1071. Though an appellate court must make an independent determination on the issue of voluntariness, the district court’s findings of fact on the circumstances surrounding the confession are to be accepted unless clearly erroneous. Id. at 1072. Our review of the record leads us to conclude that Cristobal’s waiver was indeed voluntary. We cannot find, as Cristobal asserts, that his will was overborne by the circumstances of the hospital interrogation. Historically, cases of gross abuse have allowed courts to easily deem certain confessions involuntary. Undoubtedly, an accused’s will may be overborne when he or she is subjected to severe physical abuse, see Brown v. Mississippi, 297 U.S. 278, 56 S.Ct. 461, 80 L.Ed. 682 (1936), held incommunicado and questioned for over 36 hours" }, { "docid": "21827344", "title": "", "text": "that the motion was meritorious.”). a. The State Court Unreasonably Determined There was No Impermissible Coercion “A foundational principle of due process of law is that the state cannot procure a criminal conviction through the use of an involuntary confession.” Carrion v. Butler, 835 F.3d 764, 775 (7th Cir. 2016) (citing Schneckloth v. Bustamonte, 412 U.S. 218, 223-26, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973)); see also United States v. Vallar, 635 F.3d 271, 282 (7th Cir. 2011). A confession is voluntary if “it is the product of a rational intellect and free will and not the result of physical abuse, psychological intimidation, or deceptive interrogation tactics that have overcome the defendant’s free will.” Vallar, 635 F.3d at 282 (quoting United States v. Gillaum, 372 F.3d 848, 856-57 (7th Cir. 2004)) (internal quotation marks omitted). To determine whether a confession is voluntary, the court must analyze “the totality of all the surrounding circumstances—both the characteristics of the accused and the details of the interrogation.” Schneckloth, 412 U.S. at 226, 93 S.Ct. 2041; see also Murdock v. Dorethy, 846 F.3d 203, 209 (7th Cir. 2017). Further, “coercive police activity is a necessary predicate to the finding that a confession is not voluntary within the meaning of the Due Process Clause of the Fourteenth Amendment.” United States v. Sturdivant, 796 F.3d 690, 695 (7th Cir. 2015) (quoting Colorado v. Connelly, 479 U.S. 157, 167, 107 S.Ct. 515, 93 L.Ed.2d 473 (1986)) (internal quotation marks omitted). We evaluate coercion from the perspective of a reasonable person in the suspect’s position. United States v. Huerta, 239 F.3d 865, 871 (7th Cir. 2001). In doing so, we consider “the defendant’s age, education, intelligence level, and mental state; the length of the defendant’s detention; the nature of the interrogations; the inclusion of advice about constitutional rights; and the use of physical punishment, including deprivation of food or sleep.” Sturdivant, 796 F.3d at 695 (quoting Huerta, 239 F.3d at 871) (internal quotation marks omitted). Hicks argues that the state court erred when it determined that he did not feel threatened by E.J. during the call. The Wisconsin" }, { "docid": "23093322", "title": "", "text": "confession is not voluntary when obtained under circumstances that overbear the defendant’s will at the time it is given. See Lynumn v. Illinois, 372 U.S. 528, 534, 83 S.Ct. 917, 920, 9 L.Ed.2d 922 (1963). Whether a confession is a product of coercion may only be determined after a careful evaluation of the totality of all the surrounding circumstances, including the accused’s characteristics, the conditions of interrogation, and the conduct of law enforcement officials. See Schneckloth v. Bustamonte, 412 U.S. 218, 226, 93 S.Ct. 2041, 2047, 36 L.Ed.2d 854 (1973); Green v. Scully, 850 F.2d 894, 901-02 (2d Cir.), cert. denied, 488 U.S. 945, 109 S.Ct. 374, 102 L.Ed.2d 363 (1988); see also Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461 (1938) (to determine whether defendant made “an intentional relinquishment or abandonment of a known right or privilege” courts must examine “the particular facts and circumstances surrounding that case, including the background, experience, and conduct of the accused”). The prosecution has the burden of establishing by a preponderance of the evidence that a suspect waived his Miranda rights, and that his confession is truly the product of free choice. See Colorado v. Connelly, 479 U.S. 157, 168-69, 107 S.Ct. 515, 522-23, 93 L.Ed.2d 473 (1986). The district court did not consider these factors in making its decision. Instead, it held that because the agents' statements to the defendant were intended to trick and cajole the defendant into confessing, it was impossible to find that he waived his rights voluntarily. Though the “trickery” premise is correct, the district court’s conclusion respecting the “impossibility of a waiver” is not. Trickery does not make it impossible per se to find that a defendant voluntarily waived his rights. For example, the facts could reveal that the suspect was knowledgeable about Miranda waivers in federal court, and therefore highly unlikely to be tricked by an agent’s statements. Hence, the application of a per se rule is inappropriate. Regardless of whether the agent’s statements were false, misleading, or intended to trick and cajole the defendant into confessing, specific findings must" }, { "docid": "16669350", "title": "", "text": "States.” Colorado v. Connelly, 479 U.S. at 163, 107 S.Ct. at 519-20 (citing Miller v. Fenton, 474 U.S. at 109-10, 106 S.Ct. at 449). Thus, the Fourteenth Amendment due process cases provide the clearest definition of “voluntariness.” See Schneckloth v. Bustamonte, 412 U.S. 218, 223, 93 S.Ct. 2041, 2045-46 (1973) (“The most extensive judicial exposition of the meaning of ‘voluntariness’ has been developed in those eases in which the Court has had to determine the ‘voluntariness’ of a defendant’s confession for purposes of the Fourteenth Amendment.”). “In determining whether a confession was voluntary, we must satisfy ourselves that the confession was ‘the product of an essentially free and unconstrained choice by its maker,’ that it was ‘the product of a rational intellect and a free will’ and that the appellant’s will was not ‘Overborne.’ ” United States ex rel. Hayward v. Johnson, 508 F.2d at 326 (citations omitted). [C]ourts look to the totality of circumstances to determine whether a confession was voluntary. . Those potential circumstances include not only the crucial element of police coercion, Colorado v. Connelly, 479 U.S. 157, 167, 107 S.Ct. 515, 521, 93 L.Ed.2d 473 (1986); the length of the interrogation, Ashcraft v. Tennessee, 322 U.S. 143, 153-54, 64 S.Ct. 921, 925-26, 88 L.Ed. 1192 (1944); its location, see Reck v. Pate, 367 U.S. 433, 441, 81 S.Ct. 1541, 1546 [6 L.Ed.2d 948] (1961); its continuity, Ley-ra v. Denno, 347 U.S. 556, 561, 74 S.Ct. 716, 719, 98 L.Ed. 948 (1954); the defendant’s maturity, Haley v. Ohio, 332 U.S. 596, 599-601, 68 S.Ct. 302, 303-05, 92 L.Ed. 224 (1948) (opinion of Douglas, J.); education, Clewis v. Texas, 386 U.S. 707, 712, 87 S.Ct. 1338, 1341, 18 L.Ed.2d 423 (1967);, physical condition, Greenwald v. Wisconsin, 390 U.S. 519, 520-21, 88 S.Ct. 1152, 1153-54, 20 L.Ed.2d 77 (1968) (per curiam); and mental health, Fikes v. Alabama, 352 U.S. 191, 196, 77 S.Ct. 281, 284, 1 L.Ed.2d 246 (1957). They also include the failure of police to advise the defendant of his rights to remain silent and to have counsel present during custodial interrogation. Haynes v. Washington, 373 U.S." }, { "docid": "19136256", "title": "", "text": "needs to be—unreasonable. While the governing test may be difficult to reduce to a helpful formula, however, it is not difficult to apply to this case, where Supreme Court precedent offers a well-established test, and the state courts applied it in a manifestly reasonable manner. As the Supreme Court stated in Dickerson v. United States, 530 U.S. 428, 434, 120 S.Ct. 2326, 147 L.Ed.2d 405 (2000), the correct test for determining whether a statement is voluntary or coerced under the due process clause is “whether a defendant’s will was overborne” by the circumstances surrounding the giving of a confession. Schneckloth [v. Bustamonte], 412 U.S. [218,] 226, 93 S.Ct. 2041, 36 L.Ed.2d 854 [(1973)]. The due process test takes into consideration “the totality of all the surrounding circumstances—both the characteristics of the accused and the details of the interrogation.” Ibid. See also Colorado v. Connelly, 479 U.S. 157, 163-64 & n. 1, 107 S.Ct. 515, 93 L.Ed.2d 473 (1986). While neither the trial court nor the Appellate Division cited specific federal cases, the trial court made perfectly plain that it understood that “psychological coercion [is a recognized] basis for suppressing statements,” and that in evaluating such a claim, “the Court must examine the totality of circumstances to determine whether statements uttered by a defendant were the product of psy chological pressure that overbore the defendant’s will.” (Decision and Order at 17.) The state courts thus applied the correct legal standard for determining the voluntariness of Holland’s confession. The state courts’ application of the governing “totality of the circumstances” standard is reasonable by any definition. It can of course be argued, as Holland does, that an interrogation is coercive when it is conducted after lengthy custody, without food, under uncomfortable conditions, and with implicit warnings that cooperation will likely lead to reduced punishment. But the trial court carefully weighed this argument against the actual circumstances of Holland’s confinement in a careful opinion, pointing out that Holland was not subjected to lengthy interrogation (he was questioned on only four occasions, most of them quite brief); that “[t]here is no evidence that the defendant" }, { "docid": "15073999", "title": "", "text": "cause and without presentation to a judicial officer for four months, his confession was coerced and therefore obtained in violation of the Due Process Clause of the Fourteenth Amendment. On review of a habeas petition, we make an independent assessment of the voluntariness of the confession. Miller v. Fenton, 474 U.S. 104, 110, 106 S.Ct. 445, 449, 88 L.Ed.2d 405 (1985). The subsidiary and historical facts found by the state trial court, however, are presumed correct under 18 U.S.C. § 2254(d). Id. at 112, 106 S.Ct. at 450. When a state court fails to make explicit findings, a state court’s denial of the claim “resolves all conflicts in testimony bearing on that claim against the criminal defendant.” Culombe v. Connecticut, 367 U.S. 568, 604-05, 81 S.Ct. 1860, 1880, 6 L.Ed.2d 1037 (1961). To determine whether a confession is voluntary, the court must assess “the totality of all the surrounding circumstances— both the characteristics of the accused and the details of the interrogation.” Schneckloth v. Bustamonte, 412 U.S. 218, 226, 93 S.Ct. 2041, 2047, 36 L.Ed.2d 854 (1973). The inquiry focuses on whether there has been any “police overreaching.” Colorado v. Connelly, 479 U.S. 157, 163, 107 S.Ct. 515, 520, 93 L.Ed.2d 473 (1986). Factors to be considered include the “[accused’s] lack of education, or his low intelligence, the lack of any advice to the accused of his constitutional rights, the length of detention, the repeated and prolonged nature of the questioning, and the use of physical punishment such as the deprivation of food or sleep.” Schneckloth, 412 U.S. at 226, 93 S.Ct. at 2047 (citations omitted). The trial court held an evidentiary hearing on Waldrop’s oral motion to suppress the October 18, 1982, confession. In denying the motion to suppress, the court implicitly found that (1) Waldrop had been advised of and understood his Miranda rights before making his statement; (2) Waldrop asserted that he knew the rights better than the officers did; (3) he wished to talk to the authorities; (4) he asserted that he did not want or need a lawyer; (5) he never requested counsel; (6) no" }, { "docid": "662682", "title": "", "text": "the statement. Colorado v. Connelly, 479 U.S. 157, 167, 107 S.Ct. 515, 93 L.Ed.2d 473 (1986); see also Reck v. Pate, 367 U.S. 433, 440, 81 S.Ct. 1541, 6 L.Ed.2d 948 (1961) (holding that an interrogation violates due process if the suspect’s will is overborne at the time he confessed). Whether an interrogation rises to the level of coercion turns on a spectrum of factors: the age, education and intelligence of the suspect; whether the suspect was advised of his Miranda rights; the length of the ques tioning; and the use of physical punishment or the deprivation of food, sleep or other creature comforts. Schneckloth v. Bustamonte, 412 U.S. 218, 226, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973). Consistent with these factors, the Michigan courts reasonably determined that Jackson’s interrogation was not coercive. Jackson voluntarily reported to the police station and agreed to be questioned. Before asking any questions, the officers advised Jackson of his Miranda rights, which he waived no fewer than four times during the interrogations. And when Jackson ultimately confessed, he added a statement of remorse, saying he was “sorry for what happened,” JA 107 — suggesting that it was his conscience, not the police, that overbore his prior efforts to disclaim any responsibility for the robbery and murder. Other contextual clues point in the same direction. Jackson told the officers that he could read and write and that he understood the rights he was waiving. At no point during the questioning did Jackson indicate that he did not understand his rights. He never said he was tired, confused or uncomfortable. And he confirmed in his written confession that he was not “deprived of food, water or use of the restroom.” JA 567. Nor was Jackson unfamiliar with the criminal justice system. He had six juvenile indictments filed against him prior to this arrest. He was not ill, injured or under the influence of drugs or alcohol. He never asked for an attorney. He never asked the agents to stop questioning him. And he acknowledges that he was not threatened, harmed or promised anything to compel his" }, { "docid": "15444766", "title": "", "text": "100 kilograms of marihuana, in violation of id. § 841(a)(1). Various defendants in No. 91-8298 appeal the admission of their confessions, the failure to sever Carrillo, and the constitutionality of sentencing. The defendants in No. 91-8218 challenge the sufficiency of the evidence and the increase in their sentence for their role as organizers. We affirm. III. No. 91-8298. A. Voluntariness of Confessions. The defendants attempted to suppress the confessions made on the night of their arrest, arguing four factors as demonstrating that the confessions were involuntary and coerced: (1) the physical conditions of their confinement; (2) the deception and psychological coercion used by the questioners; (3) the failure to advise them of their rights; and (4) the delay in presenting them to a magistrate after detention. The government has the burden of proving by a preponderance of the evidence that each defendant voluntarily waived his rights and that the statements he made were voluntary. Colorado v. Connelly, 479 U.S. 157, 168-69, 107 S.Ct. 515, 522-23, 93 L.Ed.2d 473 (1986). Voluntariness depends upon the totality of the circumstances and must be evaluated on a case-by-case basis. Schneckloth v. Bustamonte, 412 U.S. 218, 226, 93 S.Ct. 2041, 2047, 36 L.Ed.2d 854 (1973). Under Connelly, a confession is voluntary in the absence of official overreaching, in the form either of direct coercion or subtle forms of psychological persuasion. United States v. Raymer, 876 F.2d 383, 386-87 (5th Cir.), cert. denied, 493 U.S. 870, 110 S.Ct. 198, 107 L.Ed.2d 152 (1989). We treat the district court’s findings of fact as valid unless clearly erroneous but make an independent review of the legal conclusion of voluntariness. Raymer, id. at 386. Defendants complain that they were wet, cold, and fatigued at the time of the interrogation. They argue that they were misled by the sympathetic plain-clothes officer and frightened by the uniformed officer. These circumstances do not demonstrate official coercion. The defendants were apprehended after 10:30 p.m. and arrived at the border patrol station at approximately 11:30 p.m. When a suspect is apprehended in a criminal act late at night, the government is not required to" }, { "docid": "51557", "title": "", "text": "[or she] is entitled to a reliable and clear cut determination that the confession was in fact voluntarily rendered. Thus, the prosecution must prove by at least a preponderance of the evidence that the confession was voluntary. Lego v. Twomey, 404 U.S. 477, 489, 92 S.Ct. 619, 626-27, 30 L.Ed.2d 618 (1972); see Colorado v. Connelly, 479 U.S. 157, 169, 107 S.Ct. 515, 522-23, 93 L.Ed.2d 473 (1986). Where voluntariness is concerned, “the question in each case is whether the defendant’s will was overborne at the time he [or she] confessed.” Haynes v. Washington, 373 U.S. 503, 513, 83 S.Ct. 1336, 1343, 10 L.Ed.2d 513 (1963); see Lynumn v. Illinois, 372 U.S. 528, 534, 83 S.Ct. 917, 920, 9 L.Ed.2d 922 (1963). ‘Whether a confession is a product of coercion may only be determined after a careful evaluation of the totality of all the surrounding circumstances.... ” United States v. Anderson, 929 F.2d 96, 99 (2d Cir.1991); see Miller v. Fenton, 796 F.2d 598, 604 (3d Cir.) (“To determine the voluntariness of a confession, the court must consider the effect that the totality of the circumstances had upon the will of the defendant.”), cert. denied, 479 U.S. 989, 107 S.Ct. 585, 93 L.Ed.2d 587 (1986). The factors to be considered include: the youth of the accused; his [or her] lack of education or his [or her] low intelligence; the lack of any advice to the accused of his [or her] constitutional rights; the length of detention; the repeated and prolonged nature of the questioning; and the use of physical punishment such as the deprivation of food or sleep. Miller, 796 F.2d at 604 (citing Schneckloth v. Bustamonte, 412 U.S. 218, 226, 93 S.Ct. 2041, 2047, 36 L.Ed.2d 854 (1973)); see Anderson, 929 F.2d at 99 (listing among factors to be considered: “the accused’s characteristics, the conditions of interrogation, and the conduct of law enforcement officials”). The Circuit has emphasized that the test for voluntariness is not a but-for test: we do not ask whether the confession would have been made in the absence of the interrogation. New criminals feel impelled" }, { "docid": "13324606", "title": "", "text": "a statement on a videotape. The officers once again advised him of his constitutional rights and again he waived them. After repeating his confession on the videotape, he was arrested. He also made inculpatory statements while in his jail cell. The state trial court suppressed all statements Battle made before the audiotape statement and those made after the videotape confession, but admitted into evidence the audiotape and videotape. The district court found that the state trial court did not err in admitting the confessions on the audiotape and videotape bécause the officer’s testimony, the execution of the waiver form, the transcripts of both tapes, and Battle’s trial testimony “clearly show he was given multiple Miranda warnings and repeatedly waived them.” In determining whether a defendant confessed involuntarily, a reviewing court must examine the entire record to determine if the accused was coerced or his will was overborne. United States v. Wilson, 787 F.2d 376, 380-81 (8th Cir.), cert. denied, 479 U.S. 857, 107 S.Ct. 197, 93 L.Ed.2d 129 (1986). The court must consider the totality of circumstances, including the specific interrogation tactics employed, the details of the interrogation, and the characteristics of the accused. Id. The court must consider the confession in light of the age of the defendant, his level of education and intelligence, and the length of the questioning. Schneckloth v. Bustamante, 412 U.S. 218, 225-26, 93 S.Ct. 2041, 2047, 36 L.Ed.2d 854 (1973). However, we presume factual questions answered by the state trial court such as “whether the police in fact engaged in the intimidation tactics alleged by defendant” are correct. Hill v. Lockhart, 927 F.2d 340, 346 (8th Cir.) (quoting Miller v. Fenton, 474 U.S. 104, 112, 106 S.Ct. 445, 450, 88 L.Ed.2d 405 (1985)), cert. denied, — U.S.-, 112 S.Ct. 344, 116 L.Ed.2d 283 (1991). Coercive police pressure is a predicate to the finding that the confession is not voluntary and violates an accused’s due process rights. Colorado v. Connelly, 479 U.S. 157, 167, 107 S.Ct. 515, 521, 93 L.Ed.2d 473 (1986). We reject Battle’s contention that his confession was involuntary and violated his due" }, { "docid": "11293687", "title": "", "text": "unique characteristics of a particular suspect, are so offensive to a civilized system of justice that they must be condemned under the Due Process Clause of the Fourteenth Amendment.” Miller v. Fenton, 474 U.S. 104, 109, 106 S.Ct. 445, 88 L.Ed.2d 405 (1985). In order to determine whether a confession was voluntarily made, a court must evaluate the totality of the circumstances surrounding the interrogation to determine whether the defendant’s “will [was] overborne and his capacity for self-determination critically impaired.” Schneckloth v. Bustamante, 412 U.S. 218, 225-26, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973). “[C]oercive police activity is a necessary predicate to the finding that a confession is not ‘voluntary.’ ” Colorado v. Connelly, 479 U.S. 157, 167, 107 S.Ct. 515, 93 L.Ed.2d 473 (1986). “[C]oercion can be mental as well as physical.” Blackburn v. Alabama, 361 U.S. 199, 206, 80 S.Ct. 274, 4 L.Ed.2d 242 (1960). In addition to “the crucial element of police coercion,” courts consider “the length of the interrogation, its location, its continuity, the defendant’s maturity, education, physical condition, and mental health” and the failure of police to advise the defendant of his Miranda rights. Withrow v. Williams, 507 U.S. 680, 693-94, 113 S.Ct. 1745, 123 L.Ed.2d 407 (1993) (internal citations omitted); see also Schneckloth, 412 U.S. at 226, 93 S.Ct. 2041 (discussing factors). If a defendant has been advised of his Miranda rights and voluntarily waived them, it will be difficult to claim that his confession was nonetheless involuntary. Missouri v. Seibert, 542 U.S. 600, 609, 124 S.Ct. 2601, 159 L.Ed.2d 643 (2004) (plurality opinion) (noting that “maintaining that a statement is involuntary even though given after warnings and voluntary waiver of rights requires unusual stamina”); see also Berkemer, 468 U.S. at 433 n. 20, 104 S.Ct. 3138 (“[Cjases in which a defendant can make a colorable argument that a self-incriminating statement was ‘compelled’ despite the fact that the law enforcement authorities adhered to the dictates of Miranda are rare.”). The Ohio Supreme Court examined the totality of the circumstances surrounding Loza’s confession and upheld the trial court’s denial of Loza’s suppression motion, reasoning, in" }, { "docid": "662681", "title": "", "text": "This case, the parties agree, is covered by the Anti-Terrorism and Effective Death Penalty Act of 1996. 28 U.S.C. § 2254. To prevail on any of his three requests for habeas relief, as a result, Jackson must show not only that the state courts erred in ruling on his constitutional claim but also that their decision was contrary to, or an unreasonable application of, Supreme Court precedent. See id. § 2254(d). A. Jackson first argues that the state court’s admission of his confession at his criminal trial violated due process because he made it involuntarily. See Miranda v. Arizona, 384 U.S. 436, 462, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). “[Certain interrogation techniques,” it is true, “are so offensive to a civilized system of justice that they must be condemned under the Due Process clause.” Miller v. Fenton, 474 U.S. 104, 109, 106 S.Ct. 445, 88 L.Ed.2d 405 (1985). Accordingly, when a criminal defendant can show that “coercive police activity” caused him to make an involuntary confession, due process prohibits the government from relying on the statement. Colorado v. Connelly, 479 U.S. 157, 167, 107 S.Ct. 515, 93 L.Ed.2d 473 (1986); see also Reck v. Pate, 367 U.S. 433, 440, 81 S.Ct. 1541, 6 L.Ed.2d 948 (1961) (holding that an interrogation violates due process if the suspect’s will is overborne at the time he confessed). Whether an interrogation rises to the level of coercion turns on a spectrum of factors: the age, education and intelligence of the suspect; whether the suspect was advised of his Miranda rights; the length of the ques tioning; and the use of physical punishment or the deprivation of food, sleep or other creature comforts. Schneckloth v. Bustamonte, 412 U.S. 218, 226, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973). Consistent with these factors, the Michigan courts reasonably determined that Jackson’s interrogation was not coercive. Jackson voluntarily reported to the police station and agreed to be questioned. Before asking any questions, the officers advised Jackson of his Miranda rights, which he waived no fewer than four times during the interrogations. And when Jackson ultimately confessed, he added" } ]

[ { "docid": "22747202", "title": "", "text": "found invalid by the District Court. D We also agree with the District Court that the decision to censor or withhold délivery of a particular letter must be accompanied by minimum procedural safeguards. The interest of prisoners and their correspondents in uncensored communication by letter, grounded as it is in the First Amendment, is plainly a “liberty” interest within the meaning of the Fourteenth Amendment even' though qualified of necessity by the circumstance of imprisonment. As such, it-is protected from arbitrary governmental invasion. See Board of Regents v. Roth, 408 U. S. 564 (1972); Perry v. Sindermann, 408 U. S. 593 (1972). The District Court required that an inmate be notified of the rejection of a letter written by or addressed to him, that the author of that letter be given a reasonable opportunity to protest that decision, and that complaints be referred to a prison official other than the person who originally disapproved the correspondence. These requirements do not appear to be unduly burdensome, nor do appellants so contend. Accordingly, we affirm the judgment of the District Court with respect to the Department’s regulations relating to prisoner mail. II The District Court' also enjoined continued enforcement of Administrative Rule MV-IV-02, which provides in pertinent part: “Investigators for an attorney-of-record will be confined-to not more than two. Such investigators must be licensed by the State or must be members of the State Bar. Designation must be made in writing by the Attorney.” By restricting access to prisoners to members of the bar and licensed private investigators, this regulation imposed an absolute ban on the use by attorneys of law students and legal paraprofessionals to interview inmate clients. In fact, attorneys could not even, delegate to such persons the task of obtaining prisoners’ signatures on legal documents. The District Court reasoned that this rule constituted an unjustifiable restriction on the right of access to the courts. We agree. The' constitutional guarantee of due process of law has as a corollary the requirement that prisoners be afforded access to the courts in order to challenge unlawful convictions and to seek redress for" } ]

[ { "docid": "22792352", "title": "", "text": "U.S. 78, 84, 107 S.Ct. 2254, 96 L.Ed.2d 64 (1987). “Thus, when a prison regulation or practice offends a fundamental constitutional guarantee, federal courts will discharge their duty to protect [prisoners’] constitutional rights.” Mauro v. Arpaio, 188 F.3d 1054, 1058 (9th Cir.1999) (en banc) (internal citation omitted). “Nevertheless, prisoners’ constitutional rights are subject to substantial limitations and restrictions in order to allow prison officials to achieve legitimate correctional goals and maintain institutional security.” Walker v. Sumner, 917 F.2d 382, 385 (9th Cir.1990) (internal citations omitted). “In Turner v. Safley, the Supreme Court set forth the standard for evaluating prisoners’ constitutional claims.” Id. Turner held that “a regulation that impinges upon a prisoner’s constitutional rights is valid if the regulation ‘is reasonably related to legitimate penological interests.’ ” Frost v. Symington, 197 F.3d 348, 354 (9th Cir.1999) (quoting Turner, 482 U.S. at 89, 107 S.Ct. 2254). To guide courts in evaluating whether a challenged regulation is reasonably related to legitimate penological interests, Tuner established the following four-part test: (1) whether the regulation is rationally related to a legitimate and neutral governmental objective; (2) whether there are alternative avenues that remain open to the inmates to exercise the right; (3) the impact that accommodating the asserted right will have on other guards and prisoners, and on the allocation of prison resources; and (4) whether the existence of easy and obvious alternatives indicates that the regulation is an exaggerated response by prison officials. Prison Legal News, 238 F.3d at 1149 (citing Turner, 482 U.S. at 89-90, 107 S.Ct. 2254). Although all four Tuner factors are relevant to our analysis, the Ninth Circuit has recognized that “[t]he first of these factors constitutes a sine qua non.” Walker, 917 F.2d at 385 (emphasis added). Our court recently relied on the Tuner test in an as-applied constitutional challenge to the same OSP regulation prohibiting prisoners from receiving bulk rate, third, and fourth class mail. Prison Legal News, 238 F.3d at 1146-48. In Prison Legal News, inmate subscribers and publishers of the non-profit newsletter “Prison Legal News” challenged the same OSP mail regulation “as applied to subscription" }, { "docid": "2794903", "title": "", "text": "withheld, due process requires that an inmate receive written notice of the identity of the correspondent, the reason the mail is being withheld, and the name of the withholding officer. The court also indicated that review by an independent officer should be available to an inmate whose mail has been withheld. Although Gregory also contended the Reformatory had been constitutionally required to notify the chambers of commerce that his receipt of the mailings would be delayed, the district court rejected this contention. The state defendants argue the Reformatory offered Gregory adequate procedural protections. Specifically, defendants note Gregory received oral notice his mail would be withheld; they also note Gregory could have invoked, but did not, the established inmate grievance procedure to obtain review of the decision to withhold mail. We find these contentions to be without merit. “The interest of prisoners and their correspondents in uncensored communication by letter, grounded as it is in the First Amendment, is plainly a ‘liberty’ interest within the meaning of the Fourteenth Amendment even though qualified of necessity by the circumstance of imprisonment.” Procunier v. Martinez, 416 U.S. at 418, 94 S.Ct. at 1814. Consequently, governmental invasions of that interest must be accompanied by appropriate procedural safeguards. Id. The written notice required here by the district court will ensure that inmates receive the necessary information, and will also prevent disputes and misunderstandings over the content of notice given. Furthermore, while the record indicates an inmate could invoke the grievance procedure to protest a decision to withhold mail, the record does not establish whether relief could be obtained in the event a valid complaint were made. The newly-issued DD 1 mail policy states that the third floor supervisor will make the “final determination” regarding whether mail will be withheld; it was the third floor supervisor in the present case who decided to withhold Gregory’s mail in the first place. We cannot say that the grievance procedure offers a meaningful avenue for independent review in these circumstances. Cf. Williams v. Morris, 697 F.2d 1349, 1351 (10th Cir.1982) (conclusive presumption applied in course of grievance procedure rendered" }, { "docid": "18749362", "title": "", "text": "or addressed to him, that the author of that letter be given a reasonable opportunity to protest that decision, and that complaints be referred to a prison official other than the person who originally disapproved the correspondence.” Martinez, 416 U.S. at 418-19, 94 S.Ct. at 1814. None of these safeguards are included in section 5120-9-17. The Martinez Court did not express an opinion, however, as to whether any, or all, of these procedures were required for a regulation to be constitutional. For the reasons below, we believe each of these procedural safeguards are required under Martinez. As an initial matter, we note that the “minimum procedural safeguards” referred to in Martinez are not mandated solely because of the Due Process Clause of the Fourteenth Amendment, but are primarily required because of the First Amendment free speech rights that are being protected. It is because of the concerns over protecting the freedom of speech and preventing the chilling of speech that procedural safeguards must be in place before letters are withheld or censored. See Martinez, 416 U.S. at 406 n. 10, 418-19, 94 S.Ct. at 1808 n. 10, 1814. Campbell v. Sumner, 587 F.Supp. 376, 378 (D.Nev.1984). Therefore, we must determine which procedures are required under the Due Process Clause to adequately protect the important First Amendment interests at stake. We first hold that an incoming mail censorship regulation must provide that notice of rejection be given to the inmate-recipient. The need for such a requirement is evident: without notice of rejection, censorship of protected speech can escape detection by inmates and therefore go unchallenged. Although prison officials may have occasionally, or even consistently, given notice to inmates, the regulation does not require that notice be given. Second, we hold that the mail censorship regulation is insufficient because it fails to require that notice and an opportunity to protest the decision be given to the author of the rejected letter. We reach this conclusion for two reasons. First, the decision in Martinez, as previously discussed, was premised on the fact that the First Amendment rights of free citizens were implicated by" }, { "docid": "17405822", "title": "", "text": "Defendants’ favor. As to the fourth enumerated factor, Mr. Matthews has not alleged that his placement at ADX increases the length of his sentence. In sum, Mr. Matthews’ allegations do not give rise to a protected liberty interest to support a claim for violation of due process based on his continued placement at ADX. Even if a protected liberty interest exists, Defendants assert that Mr. Matthews received adequate due process. To determine what level of process is due, the court considers three 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, 47 L.Ed.2d 18 (1976). “Prisoners held in lawful confinement have their liberty interests curtailed by definition, so the procedural protections to which they are entitled are more limited than in cases where the right at stake is the right to be free from confinement at all.” Wilkinson, 545 U.S. at 225, 125 S.Ct. 2384. Due process is satisfied if Mr. Matthews re ceived: (1) a sufficient level initial level of process, i.e., a reasoned examination of the assignment; (2) the opportunity to receive notice of and respond to the decision; and (3) safety and security concerns are weighed as part of the placement decision. DiMarco, 473 F.3d at 1344 (citation omitted). The BOP’s regulation on security classification provides for review on at least an annual basis. Mr. Matthews’ pleadings indicate that he received regular reviews of his placement at ADX. (See doc. # 2 at p. 10 of 19). Due process requires no more than the annual review procedure that the BOP provides. See Jones v. Mabry, 723 F.2d 590, 594 (8th Cir.1983) (due process requires procedure for periodic review of administrative segregation status); Hunt v. Sapien, 480 F.Supp.2d 1271, 1277 (D.Kan.2007) (placement was not" }, { "docid": "18749357", "title": "", "text": "94 S.Ct. at 1812. The Court also concluded that mail censorship regulations could suffer from another deficiency. Concluding that an individual’s interest in uncensored mail is a liberty interest which must be “protected from arbitrary governmental invasion,” id. at 418, 94 S.Ct. at 1814, the Court further held that due process requires a “decision to censor or withhold delivery of a particular letter ... be accompanied by minimal procedural safeguards” to be constitutional. Id. at 417, 94 S.Ct. at 1814 (emphasis supplied). The Court thereafter approved the district court’s order requiring that: (1) notice be given to the inmate of the rejected letter; (2) a reasonable opportunity be given to the author of the letter to protest the rejection decisions; and (3) complaints concerning the rejection be reviewed by someone other than the individu al who originally rejected the letter. Id. at 418-19, 94 S.Ct. at 1814. There are two potential problems with the regulation challenged in the instant case. The first is a concern that the regulation’s sweep is too broad, and the second relates to the adequacy of procedural safeguards. 1. Section 5120-9-17 provides that mail must be withheld from the inmate and returned to the sender if the managing officer determines that it constitutes “a clear and present danger to institutional security.” Section 5120-9-17, however, does not define this phrase, nor does it otherwise provide specific guidelines for when mail can be censored. Without guidance, prison officials would be provided with complete discretion to censor mail. If a prisoner mail censorship regulation is not narrowly tailored to meet the articulated governmental interest involved, then it violates the First Amendment. Martinez, 416 U.S. at 415-16, 94 S.Ct. at 1812. Cf. Plain Dealer Publishing Co. v. City of Lakewood, 794 F.2d 1139, 1143-46 (6th Cir.1986) (vesting unbridled discretion in municipal official for granting newsrack license is not narrowly tailored and is therefore unconstitutional under First Amendment). However, we do not believe that section 5120-9-17 should be held invalid on the theory that it is overbroad and allows for the censorship of protected speech. If it is possible to interpret" }, { "docid": "22327713", "title": "", "text": "358-359. This proposition does not follow from Sandin. Sandin concerned only whether a state-created liberty interest existed so as to trigger Mathews balancing at all. Having found no liberty interest to be at stake, Sandin had no occasion to consider whether the private interest was weighty vis-á-vis the remaining Mathews factors. Applying the three factors set forth in Mathews, we find Ohio’s New Policy provides a sufficient level of process. We first consider the significance of the inmate’s interest in avoiding erroneous placement at OSP. Prisoners held in lawful confinement have their liberty curtailed by definition, so the procedural protections to which they are entitled are more limited than in cases where the right at stake is the right to be free from confinement at all. See, e. g., Gerstein v. Pugh, 420 U. S. 103 (1975); Wolff, 418 U. S. 539. The private interest at stake here, while more than minimal, must be evaluated, nonetheless, within the context of the prison system and its attendant curtailment of liberties. The second factor addresses the risk of an erroneous placement under the procedures in place, and the probable value, if any, of additional or alternative procedural safeguards. The New Policy provides that an inmate must receive notice of the factual basis leading to consideration for OSP placement and a fair opportunity for rebuttal. Our procedural due process cases have consistently observed that these are among the most important procedural mechanisms for purposes of avoiding erroneous deprivations. See Greenholtz v. Inmates of Neb. Penal and Correctional Complex, 442 U. S. 1, 15 (1979); Cleveland Bd. of Ed. v. Loudermill, 470 U. S. 532, 543 (1985); Fuentes v. Shevin, 407 U. S. 67, 80 (1972) (“For more than a century the central meaning of procedural due process has been clear: ‘Parties whose rights are to be affected are entitled to be heard; and in order that they may enjoy that right they must first be notified’ ” (quoting Baldwin v. Hale, 1 Wall. 223, 233 (1864))). Requiring officials to provide a brief summary of the factual basis for the classification review and allowing" }, { "docid": "22116091", "title": "", "text": "is that “the issue ... has been litigated extensively and courts have consistently recognized” the right at issue. Malik, 71 F.3d at 729-30. The “no gift publication” policy, by contrast, has not been extensively litigated and, to the extent it has, cases go both ways. We emphasize one additional point: This is not a case in which defendants chose not to appeal unfavorable trial court rulings to avoid a decision in the court of appeals clearly establishing the law. To the contrary, it was the prison officials in Crofton v. Roe who appealed the district court ruling striking down the “no gift publication” policy, thus teeing up the issue for a definitive ruling in the Ninth Circuit. It is entirely possible that the law could become clearly established when a party repeatedly litigates an issue, repeatedly loses, but avoids an adverse appellate decision by opting not to appeal. Such was not the case here, however. In sum, we conclude that defendants are entitled to summary judgment as to Sorrels’s First Amendment claim. There is no published caselaw on point, and the policy was not so far-fetched that its illegality was necessarily obvious to a reasonable prison official. Consideration of unpublished decisions presented by the parties does not alter our conclusion. We therefore affirm the district court’s grant of summary judgment as to Sorrels’s First Amendment claim on grounds of qualified immunity. B. Dismissal of Procedural Due Process Claim Sorrels’s second argument is that the district court erred in granting summary judgment for defendants on his procedural due process claim that the Georgetown Law Journal was rejected without notice. It is undisputed that “withholding] delivery of [inmate mail] must be accompanied by minimum procedural safeguards.” Procunier v. Martinez, 416 U.S. 396, 417-18, 94 S.Ct. 1800, 40 L.Ed.2d 224 (1974), overruled on other grounds by Thornburgh v. Abbott, 490 U.S. 401, 413-14, 109 S.Ct. 1874, 104 L.Ed.2d 459 (1989). Specifically, an inmate “has a Fourteenth Amendment due process liberty interest in receiving notice that his incoming mail is being withheld by prison authorities.” Frost v. Symington, 197 F.3d 348, 353 (9th Cir.1999)." }, { "docid": "17418990", "title": "", "text": "in uncensored communication by letter, grounded as it is in the First Amendment, is plainly a ‘liberty’ interest within the meaning of the Fourteenth Amendment even though qualified of necessity by the circumstance of imprisonment.” Martinez, 416 U.S. at 417-18, 94 S.Ct. 1800. This liberty interest attaches not only to communications by letter, but also to a prisoner’s receipt of subscription publications. See Prison Legal News v. Cook, 238 F.3d 1145, 1152-53 (9th Cir.2001) (holding that a prisoner has a “constitutionally protected right” to receive nonprofit organization’s newsletter); Frost v. Symington, 197 F.3d 348, 353 (9th Cir.1999) (holding that a prisoner has a “due process liberty interest in receiving notice that his incoming [magazines are] being withheld by prison authorities”); see also Morrison v. Hall, 261 F.3d 896, 906 (9th Cir.2001) (“The Supreme Court has repeatedly recognized that restrictions on the delivery of mail burden an inmate’s ability to exercise his or her First Amendment rights.”). In light of this protected liberty interest, Krug has a constitutional right to two-level review. In Procunier v. Martinez, 416 U.S. 396, 417-18, 94 S.Ct. 1800, 40 L.Ed.2d 224 (1974), the Supreme Court held that given the liberty interest involved, the decision to censor or withhold delivery of correspondence to a prisoner must be accompanied by minimum procedural safeguards. It affirmed the district court’s requirement of two-level review: “complaints [shall] be referred to a prison official other than the person who originally disapproved the correspondence.” Id. at 418-19, 94 S.Ct. 1800. Martinez also had a substantive component: it held that the censorship of personal correspondence is justified if it furthers interests of security, order or inmate rehabilitation and is no greater than necessary to further the legitimate government interest at issue. Id. at 413-14, 94 S.Ct. 1800. Fifteen years later, the Court revisited Martinez and overruled parts of the earlier decision. See Thornburgh v. Abbott, 490 U.S. 401, 109 S.Ct. 1874, 104 L.Ed.2d 459 (1989). Although Thornburgh overruled Martinez’s substantive component, it did not disturb Martinez’s procedural due process aspects. See Cal. First Amendment Coalition v. Woodford, 299 F.3d 868, 878 n. 5 (9th" }, { "docid": "17419000", "title": "", "text": "right to receive his nonobscene subscription materials and a corresponding right to fair procedures governing the withholding of allegedly obscene materials. Procedural due process is implicated even in cases where the publications at issue could be construed as allegedly obscene. See Frost, 197 F.3d at 353-54 (the district court erred by not considering an inmate’s procedural due process claim regarding the withholding of Penthouse and Gallery magazines). As Justice Stevens observed, “[c]ommentators have discussed the importance of procedural safeguards in our analysis of obscenity. The purpose of these safeguards is to insure that the government treads with sensitivity in areas freighted with First Amendment concerns.” Chicago Teachers Union v. Hudson, 475 U.S. 292, 303 n. 12, 106 S.Ct. 1066, 89 L.Ed.2d 232 (1986) (citations omitted). . We therefore reject the ADOC officials’ suggestions that Martinez is wholly inapplicable to incoming mail and that, accordingly, we must apply the \"reasonableness” standard of Turner v. Safley, 482 U.S. 78, 89, 107 S.Ct. 2254, 96 L.Ed.2d 64 (1987), to their decision to forgo two-level review. . Other courts of appeals that have considered the question have concluded that Martinez requires two-level review. See Murphy v. Mo. Dep’t of Cons., 814 F.2d 1252, 1258 (8th Cir.1987) (holding that appeal to prison official other than the one who made the initial determination was mandated by Martinez); Martin v. Kelley, 803 F.2d 236, 244 (6th Cir.1986) (such an appeal is \"necessary to ensure that future rejection decisions are fair, and based on appropriate factors”); Hopkins v. Collins, 548 F.2d 503, 504 (4th Cir.1977) (such appeal is one of the minimal standards of procedural due process under Martinez). Although predating Thornburgh, these cases make clear that two-level review is inherent in minimum procedural due process. . We have located no opinion, published or unpublished, which indicates that two-level review is not one of the minimum procedural safeguards to which prisoners are entitled under Martinez. . As the district court noted, in 1999 we cited Thornburgh for the proposition that inmates are entitled to procedural due process protections when incoming publications are excluded by prison officials. See Frost," }, { "docid": "11235016", "title": "", "text": "imposed against him by the sentencing judge in his state criminal proceeding. Nor does he otherwise seek to undermine the validity of his criminal sentence. Such a challenge would not be cognizable in a § 1983 action unless the prisoner could prove that he had previously obtained á favorable termination of his state court criminal proceeding. See, e.g., Heck v. Humphrey, 512 U.S. 477, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994); Gilles v. Davis, 427 F.3d 197, 208-09 (3d Cir.2005). Further, Hale does not suggest that any additional process must be given by the Pennsylvania courts rather than DOC administrators. Cf. Buck v. Beard, 583 Pa. 431, 879 A.2d 157 (2005) (rejecting the argument that the due process considerations require a judicial default hearing before deductions may be made from inmate accounts). Instead, Hale’s due process claim is narrowly focused on whether inmates must be provided with notice of the DOC Policy and an opportunity to be heard regarding application of the Policy prior to the first deduction, and, if they must, whether the current procedures implemented by the Corrections Officials are sufficient. It is to these narrow issues that we now turn. 2. The District Court ruled that the DOC’s post-deprivation grievance procedures are sufficient to meet Hale’s procedural due process rights, and that no pre-deprivation hearing was required. We disagree and will reverse. Procedural due process claims are governed by the standard first enunciated in Mathews v. Eldridge, 424 U.S. 319, 335, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976). Under that standard, a court is to weigh three factors: (1) “the private interest that will be affected by the official action”, (2) “the risk of an erroneous deprivation of such interest through the procedures used” and the value of “additional or substitute procedural safeguards”, and (3) the governmental interest, “including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirements would entail.” Id. State prisoners plainly have a property interest in the funds in their inmate accounts. See, e.g., Reynolds, 128 F.3d at 179. As other courts have held, however, this interest" }, { "docid": "9946272", "title": "", "text": "recognized that both inmates and correspondents have a qualified liberty interest in uncensored communications that are protected by the First Amendment. The Court required “minimum procedural safeguards” and affirmed a district court requirement “that an inmate be notified of the rejection of a letter written by or addressed to him, that the author of the letter be given a reasonable opportunity to protest that decision, and that complaints be referred to a prison official other than the person who originally disapproved the correspondence.” Id. Thornburgh v. Abbott, 490 U.S. 401, 413-14, 109 S.Ct. 1874, 104 L.Ed.2d 459, overruled Martinez in part and imposed the Turner reasonableness standard on regulations concerning all correspondence. However, nothing suggests that the qualified liberty interest recognized in Martinez was overruled. Indeed, Thornburgh involved a challenge to the Bureau of Prisons censorship and the court commented that “[t]he regulations provide procedural safeguards for both the recipient and the sender.” 490 U.S. at 406, 109 S.Ct. 1874. The Court cited the regulation requiring the Bureau of Prisons to provide a copy of the rejection letter notifying the inmate to the publisher, 28 C.F.R. § 540.71(e). Thornburgh, 490 U.S. at 406, 109 S.Ct. 1874. Were there any doubt, the Court stated that “there is no question that publishers who wish to communicate with those who, through subscription, willingly seek their point of view have a legitimate First Amendment interest in access to prisoners.” Id. at 408, 109 S.Ct. 1874. Other courts have recognized that both inmates and publishers have a right to procedural due process when publications are rejected. See Prison Legal News v. Cook, 238 F.3d 1145, 1152-53 (9th Cir.2001); Montcalm Publ’g Co. v. Beck, 80 F.3d 105, 109 (4th Cir.1996). In Montcalm, the Fourth Circuit considered the lack of notice afforded the publisher of a disapproved magazine sent to an inmate. The court held “that publishers are entitled to notice and an opportunity to be heard when their publications are disapproved for receipt by inmate-subscribers.” 80 F.3d at 106. We agree. Defendants suggest that its lack of notification is reasonable, arguing that the cost to the" }, { "docid": "17418991", "title": "", "text": "416 U.S. 396, 417-18, 94 S.Ct. 1800, 40 L.Ed.2d 224 (1974), the Supreme Court held that given the liberty interest involved, the decision to censor or withhold delivery of correspondence to a prisoner must be accompanied by minimum procedural safeguards. It affirmed the district court’s requirement of two-level review: “complaints [shall] be referred to a prison official other than the person who originally disapproved the correspondence.” Id. at 418-19, 94 S.Ct. 1800. Martinez also had a substantive component: it held that the censorship of personal correspondence is justified if it furthers interests of security, order or inmate rehabilitation and is no greater than necessary to further the legitimate government interest at issue. Id. at 413-14, 94 S.Ct. 1800. Fifteen years later, the Court revisited Martinez and overruled parts of the earlier decision. See Thornburgh v. Abbott, 490 U.S. 401, 109 S.Ct. 1874, 104 L.Ed.2d 459 (1989). Although Thornburgh overruled Martinez’s substantive component, it did not disturb Martinez’s procedural due process aspects. See Cal. First Amendment Coalition v. Woodford, 299 F.3d 868, 878 n. 5 (9th Cir.2002) (acknowledging the limited extent of Thornburgh’s effect on Martinez). We reject the ADOC officials’ argument to the contrary. Following Thornburgh, this circuit has repeatedly acknowledged that withholding delivery of inmate mail must be accompanied by the minimum procedural safeguards established in Martinez. See Sorrels, 290 F.3d at 972 (the withholding of the Georgetown Law Journal from an inmate “undisputed[ly]” must be accompanied by minimum procedural safeguards, including notice to the inmate); Prison Legal News, 238 F.3d at 1152(the withholding of an inmate’s subscription newsletter must be accompanied by Martinez due process safeguards, including notice and administrative review). Although these cases have focused upon the minimum procedural safeguard of notice to the prisoner, the right to appeal the exclusion of incoming publications to a prison official other than the one who made the initial exclusion decision is equally necessary. As noted earlier, the Martinez Court specifically approved of the district court’s requiring two-level review, describing the combined procedural safeguards as not “unduly burdensome.” 416 U.S. at 419, 94 S.Ct. 1800. In this case, it is" }, { "docid": "18749363", "title": "", "text": "U.S. at 406 n. 10, 418-19, 94 S.Ct. at 1808 n. 10, 1814. Campbell v. Sumner, 587 F.Supp. 376, 378 (D.Nev.1984). Therefore, we must determine which procedures are required under the Due Process Clause to adequately protect the important First Amendment interests at stake. We first hold that an incoming mail censorship regulation must provide that notice of rejection be given to the inmate-recipient. The need for such a requirement is evident: without notice of rejection, censorship of protected speech can escape detection by inmates and therefore go unchallenged. Although prison officials may have occasionally, or even consistently, given notice to inmates, the regulation does not require that notice be given. Second, we hold that the mail censorship regulation is insufficient because it fails to require that notice and an opportunity to protest the decision be given to the author of the rejected letter. We reach this conclusion for two reasons. First, the decision in Martinez, as previously discussed, was premised on the fact that the First Amendment rights of free citizens were implicated by the censorship of prisoners’ mail. Without notifying the free citizen of the impending rejection, he would not be able to challenge the decision which may infringe his right to free speech. Cf. Trudeau v. Wyrick, 713 F.2d 1360, 1366 (8th Cir.1983) (author of letter brought a First Amendment challenge); Abdul Wali v. Coughlin, 754 F.2d 1015, 1027-28 (2d Cir.1985) (the author would have standing to challenge interference with prisoners’ mail). Second, since the inmate-recipient would not have seen the contents of the withheld letter, he may require the aid of the author to meaningfully challenge the rejection decision. See Cofone v. Manson, 409 F.Supp. 1033, 1042 (D.Conn.1976) (holding that a publisher must receive notice when a prison official decides to withhold a particular publication since a prisoner “cannot be expected to marshal arguments in favor of its admission without the assistance of someone familiar with the material”). We conclude, finally, that a mail censorship regulation must provide for an appeal of the rejection decision to an impartial third party prior to the letter being returned." }, { "docid": "17418989", "title": "", "text": "by the decrees. Id. at 1289. Just as Hiser was allowed to bring his independent constitutional action, so should Krug. We have stated that “[a] court may choose not to exercise its jurisdiction when another court having jurisdiction over the same matter has entertained it and can achieve the same result.” Crawford v. Bell, 599 F.2d 890, 893(9th Cir.1979) (emphasis added). This does not mean, however, that we must necessarily reverse a district court’s granting of an injunction when it declines to refer the request to the district court more familiar with the facts of the case, and we decline to do so here. II. Krug’s Procedural Due Process Claim Krug has a liberty interest in the receipt of his subscription mailings suffi cient to trigger procedural due process guarantees. See Bd. of Regents v. Roth, 408 U.S. 564, 569, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972) (such guarantees apply only when a constitutionally protected liberty or property interest is at stake). The Supreme Court has held that “[t]he interest of prisoners and their correspondents in uncensored communication by letter, grounded as it is in the First Amendment, is plainly a ‘liberty’ interest within the meaning of the Fourteenth Amendment even though qualified of necessity by the circumstance of imprisonment.” Martinez, 416 U.S. at 417-18, 94 S.Ct. 1800. This liberty interest attaches not only to communications by letter, but also to a prisoner’s receipt of subscription publications. See Prison Legal News v. Cook, 238 F.3d 1145, 1152-53 (9th Cir.2001) (holding that a prisoner has a “constitutionally protected right” to receive nonprofit organization’s newsletter); Frost v. Symington, 197 F.3d 348, 353 (9th Cir.1999) (holding that a prisoner has a “due process liberty interest in receiving notice that his incoming [magazines are] being withheld by prison authorities”); see also Morrison v. Hall, 261 F.3d 896, 906 (9th Cir.2001) (“The Supreme Court has repeatedly recognized that restrictions on the delivery of mail burden an inmate’s ability to exercise his or her First Amendment rights.”). In light of this protected liberty interest, Krug has a constitutional right to two-level review. In Procunier v. Martinez," }, { "docid": "9822777", "title": "", "text": "entitled to use, the standard rate to take additional costly steps to mail his individual newsletter. In Turner the Supreme Court says: “when a prison regulation impinges on inmates’ constitutional rights, the regulation is valid if it is reasonably related to legitimate penological interests.” 482 U.S. at 89, 107 S.Ct. 2254. There are four factors relevant to the Turner reasonableness inquiry: (1) whether the regulation is rationally related to a legitimate and neutral governmental objective; (2) whether there are alternative avenues that remain open to the inmates to exercise the right; (3) the impact that accommodating the asserted right will have on other guards and prisoners, and on the allocation of prison resources; and (4) whether the existence of easy and obvious alternatives indicates that the regulation is an exaggerated response by prison officials. Id. at 89-90, 107 S.Ct. 2254. The same analysis applies to regulations affecting publishers’ rights to send materials to prisoners. See Thornburgh, 490 U.S. at 413, 109 S.Ct. 1874 (applying Turner to regulations affecting incoming inmate mail regardless of the sender’s identity). The first element of the Turner test directs us to (1) determine whether the Department’s regulation is legitimate and neutral; and (2) assess whether there is a rational relationship between the governmental objective and the regulation. We hold that tying the receipt of subscription non-profit newsletters to postal service rate classifications is not rationally related to any legitimate penological interest put forth by the Department. In Frost v. Symington, 197 F.3d 348 (9th Cir.1999), we clarified that the level of scrutiny to be applied to the decisions of prison administrators depends on the circumstances in each case: When the inmate presents sufficient ... evidence that refutes a common-sense connection between a legitimate objective and a prison regulation, Walker [v. Sumner, 917 F.2d 382 (9th Cir.1990),] applies, and the state must present enough counter-evidence to show that the connection is not so remote as to render the policy arbitrary or irrational. On the other hand, when the inmate does not present enough evidence to refute a common-sense connection between a prison regulation and the [asserted]" }, { "docid": "17418992", "title": "", "text": "Cir.2002) (acknowledging the limited extent of Thornburgh’s effect on Martinez). We reject the ADOC officials’ argument to the contrary. Following Thornburgh, this circuit has repeatedly acknowledged that withholding delivery of inmate mail must be accompanied by the minimum procedural safeguards established in Martinez. See Sorrels, 290 F.3d at 972 (the withholding of the Georgetown Law Journal from an inmate “undisputed[ly]” must be accompanied by minimum procedural safeguards, including notice to the inmate); Prison Legal News, 238 F.3d at 1152(the withholding of an inmate’s subscription newsletter must be accompanied by Martinez due process safeguards, including notice and administrative review). Although these cases have focused upon the minimum procedural safeguard of notice to the prisoner, the right to appeal the exclusion of incoming publications to a prison official other than the one who made the initial exclusion decision is equally necessary. As noted earlier, the Martinez Court specifically approved of the district court’s requiring two-level review, describing the combined procedural safeguards as not “unduly burdensome.” 416 U.S. at 419, 94 S.Ct. 1800. In this case, it is undisputed that beginning in 1997 the ADOC stopped providing Krug with the opportunity for two-level review. Accordingly, we affirm the district court’s conclusion that the ADOC’s policy violates Krug’s procedural due process rights, and the court’s injunction requiring the ADOC officials to implement a system that provides objecting prisoners with the right to appeal the decision to exclude incoming mail to a prison official other than the one who made the initial exclusion decision. III. Qualified Immunity Krug, for his part, challenges the district court’s conclusion that the ADOC officials are entitled to qualified immunity from his claim for damages. As we concluded above, the ADOC officials violated Krug’s procedural due process rights by failing to grant him two-level reviews. In so concluding, we have answered Saucier v. Katz’s initial question in the affirmative. See 533 U.S. 194, 201, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001) (“A court required to rule upon the qualified immunity issue must consider, then, this threshold question: ... [D]o the facts alleged show the officer’s conduct violated a constitutional right?”)." }, { "docid": "9822786", "title": "", "text": "fliers, and other bulk rate mail except that received from a recognized religious organization sent in care of the institutional chaplain.” 97 F.3d 164, 165 n. 1 (6th Cir.1996). Language in that case, however, distinguished between bulk rate mail and personal subscriptions, without directly addressing subscription bulk rate mail. See id. at 167. In Minihken v. Walter, on the other hand, a district court struck down a ban on bulk mail as applied to subscription non-profit organization mail such as Publisher’s newsletter. 978 F.Supp. 1356 (E.D.Wash.1997). This ruling was based, in part, on the fact that publications like Publisher’s newsletter did not fall within the prison regulations’ own definition of “bulk mail.” See id. at 1361. Moreover, two Oregon district judges have upheld the Department regulation at issue in unpublished decisions. See Hunter v. Baldwin, Civ. No. 93-1579 (Or.1995), aff'd on other grounds, 78 F.3d 593 (9th Cir.1996) (table decision) (upholding former Or. Admin. R. 291-131-0025(8)); Morrison v. Hall, Civ. No. 93-6383-HO (Or.1998). Although unpublished decisions carry no precedential weight, Department Officials may have relied on these decisions to inform their views on whether the regulation was valid and whether enforcing it would be lawful. V Last, Publisher and Prisoners argue that the Department’s failure to provide ' notice and administrative review of standard mail rejections deprives inmates and publishers of due process safeguards required by Procunier v. Martinez, 416 U.S. 396, 417, 94 S.Ct. 1800, 40 L.Ed.2d 224 (1974) (holding that the “decision to censor or withhold delivery of a particular letter must be accompanied by minimum procedural safeguards”), overruled on other grounds by Thornburgh, 490 U.S. at 413-14, 109 S.Ct. 1874. Due process guarantees apply only when a constitutionally protected liberty or property interest is at stake. Board of Regents v. Roth, 408 U.S. 564, 569, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972). Because we decide that Publisher and Prisoners have a constitutionally protected right to receive subscription non-profit organization standard mail, it follows that such mail must be afforded the same procedural protections as first class and periodicals mail under Department regulations. VI We hold that the" }, { "docid": "22116092", "title": "", "text": "published caselaw on point, and the policy was not so far-fetched that its illegality was necessarily obvious to a reasonable prison official. Consideration of unpublished decisions presented by the parties does not alter our conclusion. We therefore affirm the district court’s grant of summary judgment as to Sorrels’s First Amendment claim on grounds of qualified immunity. B. Dismissal of Procedural Due Process Claim Sorrels’s second argument is that the district court erred in granting summary judgment for defendants on his procedural due process claim that the Georgetown Law Journal was rejected without notice. It is undisputed that “withholding] delivery of [inmate mail] must be accompanied by minimum procedural safeguards.” Procunier v. Martinez, 416 U.S. 396, 417-18, 94 S.Ct. 1800, 40 L.Ed.2d 224 (1974), overruled on other grounds by Thornburgh v. Abbott, 490 U.S. 401, 413-14, 109 S.Ct. 1874, 104 L.Ed.2d 459 (1989). Specifically, an inmate “has a Fourteenth Amendment due process liberty interest in receiving notice that his incoming mail is being withheld by prison authorities.” Frost v. Symington, 197 F.3d 348, 353 (9th Cir.1999). Thus, completely separate from the question of whether withholding inmate gift mail is constitutional (it is not) is the issue of whether such withholding complied with the requisite procedural safeguards. An initial question is whether the prison ever in fact received the Journal. Because this case was resolved below on a summary judgment motion, all facts must be taken in the light most favorable to Sorrels as the non-moving party. Lopez v. Smith, 203 F.3d 1122, 1131 (9th Cir.2000) (en banc). Though defendants seesaw in their briefs as to whether or not they received the Journal, they concede that they admitted this fact below. Defendants have waived the right to argue to the contrary on appeal. See Export Group v. Reef Indus., Ind., 54 F.3d 1466, 1470-71 (9th Cir.1995) (by pleading certain facts in the district court, a party may waive the right to allege contrary facts on appeal). If a meaningful post-deprivation remedy exists for an alleged deprivation of property, then that post-deprivation remedy is sufficient to satisfy the requirements of due process. Parrott," }, { "docid": "22307465", "title": "", "text": "Fourteenth Amendment due process liberty interest in receiving notice that his incoming mail is being withheld by prison authorities. See Miniken v. Walter, 978 F.Supp. 1356, 1363-64 (E.D.Wash.1997) (holding that prison officials’ failure to notify an inmate that his incoming non-junk mail was being withheld violated the inmate’s Fourteenth Amendment Rights); see also Thornburgh v. Abbott, 490 U.S. 401, 406, 109 S.Ct. 1874, 104 L.Ed.2d 459 (1989) (upholding a prison’s restrictions on inmates receiving publications detrimental to prison security where the prison regulations required the warden to promptly notify an inmate that his mail was being withheld); Hook Consent Decree (requiring “[p]rompt written notice” when publications withheld); ADOC Internal Management Policy No. 302.4 § 6.9.6 (requiring notice “within 24 hours after seizure of items”). The district court therefore erred by not considering Frost’s Fourteenth Amendment claims, which were supported by unrebutted evidence that (1) Frost did not receive the February or March 1994 issues of Penthouse and Gallery, the June, July, August, or September 1996 issues of Penthouse, and was not notified that these magazines were being withheld; (2) Frost received notice that the November 1995 issue of Penthouse was being withheld three months after the ADOC had received the magazine; (3) Frost received the December 1995 issues of Gallery and Penthouse almost two months after the ADOC had received these magazines; and (4) Frost received the January 1996 issues of Gallery and Penthouse approximately three weeks after the ADOC had received these magazines. On remand, the district court should consider whether the Defendants’ actions satisfied the minimum procedural safeguards required by the Due Process Clause. IV. Frost next contends that, with respect to the sexually explicit magazines, the district court erred by granting the Defendants’ motion for summary judgment on alternate grounds: (1) that the Defendants did not violate his First Amendment rights by withholding issues of Gallery and Penthouse magazines, and (2) that the Defendants were entitled to qualified immunity for their actions. Frost’s First Amendment claim prompts us to reconcile our recent en banc opinion in Mauro v. Arpaio, 188 F.3d 1054 (9th Cir.1999) with our earlier" }, { "docid": "17418999", "title": "", "text": "particular rate. Given that they sought enforcement of the contract, the court concluded that they would also be bound by a contract provision providing for \"decision by the architect ‘on all ... matters relating to the execution and progress of the work or the interpretation of the Contract Documents.' ” Id. In contrast to the journeymen in Rogers, Krug is not seeking enforcement of the Hook Consent Decree. His complaint makes clear that his claim for two-level review is \"a separate issue from Hook ” and actually alleges that ADOC Director Stewart stated that \"[a]ppeals are not covered under the Hook Consent [D]ecree.” In any event, as discussed above, one-level review is not a term or condition of the decree and two-level review can be accomplished without modifying the decree. . The ADOC officials' argument that Krug has no protected liberty or property interest in obscene material, and thus no procedural due process claim, misframes the issue. Krug is not claiming that he has a right to possess obscenity, but rather that he has a right to receive his nonobscene subscription materials and a corresponding right to fair procedures governing the withholding of allegedly obscene materials. Procedural due process is implicated even in cases where the publications at issue could be construed as allegedly obscene. See Frost, 197 F.3d at 353-54 (the district court erred by not considering an inmate’s procedural due process claim regarding the withholding of Penthouse and Gallery magazines). As Justice Stevens observed, “[c]ommentators have discussed the importance of procedural safeguards in our analysis of obscenity. The purpose of these safeguards is to insure that the government treads with sensitivity in areas freighted with First Amendment concerns.” Chicago Teachers Union v. Hudson, 475 U.S. 292, 303 n. 12, 106 S.Ct. 1066, 89 L.Ed.2d 232 (1986) (citations omitted). . We therefore reject the ADOC officials’ suggestions that Martinez is wholly inapplicable to incoming mail and that, accordingly, we must apply the \"reasonableness” standard of Turner v. Safley, 482 U.S. 78, 89, 107 S.Ct. 2254, 96 L.Ed.2d 64 (1987), to their decision to forgo two-level review. . Other courts" } ]

[ { "docid": "12480273", "title": "", "text": "federal courts on the ground of diversity of citizenship. Possibly no better reason for this fact exists than that such citizens were not thought of when the judici-aiy article of the federal Constitution was drafted. It is even more probable that citizens of the United States, occupying the very unusual status that Pannill does, were also not thought of; but in any event a citizen of the United States, who is not a citizen of any state, is not within the language of the Constitution. And to my mind Pan-nill is not a citizen of California, simply because he never intends to return to that state, .and has finally severed his connection with that state. The theoretical domicile which is equivalent to* state citizenship is always one which exists animo revertendi. The theoretical domicile which clings to a homeless wanderer, who never intends to return, has its uses in deciding rights of succession to property, in respect to taxation and to the administration of pauper laws, but is not, I think, equivalent to citizenship in the sense in which the word “citizen” is used in the Judiciary Act. While domicile, in some sense, may not be lost by mere departure with intent not to return, state citizenship is thus lost. In other words, where the word “domicile” is used as meaning home, where absence from domicile is animo re-vertendi, domicile may be equivalent to state citizenship; but where domicile exists merely by legal fiction, and absence is accompanied by intent never to return to the state of domicile, the word is not synonymous with citizenship. 2. The Pannill Case having been dismissed for want of jurisdiction, the trial of the Jerrick Case proceeded until all the evidence was in. At this juncture defendant moved for a directed verdict. When this motion was submitted, and before giving any intimation as to my decision thereon, I required plaintiff’s counsel to then elect whether he would or would not suffer a voluntary nonsuit. He elected to suffer a nonsuit. Thereupon counsel for defendant excepted to the ruling permitting the plaintiff to then take" } ]

[ { "docid": "3358590", "title": "", "text": "California state court. III. THE CITIZENSHIP OF BEN LIPPS A. Legal Standard For diversity purposes, the citizenship of an individual is determined by the location of his or her domicile. Rodriguez-Diaz v. Sierra-Marbinez, 853 F.2d 1027, 1030 (1st Cir.1988). “A person’s domicile is the place where he has his true, fixed home and principal establishment, and to which, whenever he is absent, he has the intention of returning.” Id. (internal quotation marks and citation omitted). In other words, it is “the place where one is present and intends to stay.” Rodriguez v. Señor Frog’s de la Isla, Inc., 642 F.3d 28, 32 (1st Cir.2011). A person can have only one domicile at a time, and until a new domicile is affirmatively established elsewhere, domicile is presumed to continue. See Padilla-Mangual v. Pavia Hosp., 516 F.3d 29, 31-32 (1st Cir.2008) (citing Hawes v. Club Ecuestre El Comandante, 598 F.2d 698, 701 (1st Cir.1979)). A change in domicile requires (1) presence in the new domicile and (2) an intent to remain there. Bank One, Texas, N.A. v. Montle, 964 F.2d 48, 50 (1st Cir.1992). Among the factors relevant to determining this intent include: ‘(the place where civil and political rights are exercised, taxes paid, real and personal property (such as furniture and automobiles) located, driver’s and other licenses obtained, bank accounts maintained, location of club and church membership and places of business or employment.” Id. (citations omitted). Defendants, as the party invoking diversity jurisdiction, have the burden of proving by a preponderance of the evidence the domicile of Mr. Lipps as of the time the underlying actions were filed. See Señor Frog, 642 F.3d at 32; Padillar-Mangual, 516 F.3d at 31. B. Analysis The objective facts, as well as Mr. Lipps’ declarations of intent, tell the following story. Prior to 1996, Mr. Lipps was a citizen of California, where Freseni-us USA, of which he was the CEO, was headquartered. In 1996, when Fresenius USA merged with National Medical Care, Mr. Lipps purchased an apartment in Massachusetts and moved there with his wife. In 2003, Mr. Lipps’ wife returned to California to reside" }, { "docid": "5792025", "title": "", "text": "to invoke this court’s subject matter jurisdiction under 28 U.S.C. Section 1332, plaintiff has the burden of proving that complete diversity of citizenship exists between the parties. See Hawes v. Club Ecuestre El Comandante, 598 F.2d 698, 702 (1st Cir.1979); Cf. Thomason v. Gaskill, 315 U.S. 442, 446, 62 S.Ct. 673, 675, 86 L.Ed. 951 (1942); R.G. Barry Corp. v. Mushroom Makers, Inc., 612 F.2d 651, 655 (2d Cir.1979). Complete diversity is a state of affairs where all plaintiffs are citizens of different states from all defendants. Geidel Fuel Oil Corp. v. Peninsula National Bank, 581 F.Supp. 19, 20 (E.D.N.Y.1984). The diversity of the parties is determined as of the date of the filing of the lawsuit. See Haggerty v. Pratt Institute, 372 F.Supp. 760, 762 (E.D.N.Y.1974); Huddleston v. Angeles Cooperative Creamery, 315 F.Supp. 307, 308 (W.D.Wash.1970). Under 28 U.S.C. Section 1332(c), a corporation is deemed a citizen both of its state of incorporation and of the state where its principal place of business is located. Thus, for diversity purposes, defendants Westinghouse and Millar Elevator are both citizens of New York. If plaintiff is found to be a New York citizen, complete diversity of citizenship will be lacking. In the alternative, if plaintiff is found to be a citizen of no state, this suit will also fail for lack of subject matter jurisdiction because the diversity statute specifically requires that the suit be between citizens of different states. See Mohr v. Allen, 407 F.Supp. 483 (S.D.N.Y.1976). For diversity purposes, it is well-established that the citizenship of an individual is equivalent to her domicile. Yonofsky v. Wernick, 362 F.Supp. 1005 (S.D.N.Y. 1973); Broadstone Realty Corp. v. Evans, 213 F.Supp. 261, 265 (S.D.N.Y.1962). See also Gibbons v. Udaras na Gaeltachta, 549 F.Supp. 1094, 1116 n. 12 (S.D.N.Y.1982) (under the diversity statute, a person is a “citizen of a state” if he is a citizen of the United States and a domiciliary of a state of the United States). Domicile is defined by residence in fact along with the intent to remain there or to return when absent. See, e.g., Kaufman & Broad," }, { "docid": "1897329", "title": "", "text": "1996 Ohio state general elections, but did not vote in the 1996 Puerto Rico general elections. Since August 23, 1996, Plaintiff has had a checking account with Star Bank in Ohio, and his statements are sent to Plaintiff’s address in Ohio. Plaintiff has not filed income tax returns in either Ohio or Puerto Rico. Plaintiff maintains a savings bank account with Banco Popular de Puerto Rico in Puerto Rico, and his statements are sent to his parents’ home in Puerto Rico. II. Issue of Domicile Federal courts have limited jurisdiction, and statutes which grant jurisdiction must be strictly construed. Thomson v. Gaskill, 315 U.S. 442, 446, 62 S.Ct. 673, 86 L.Ed. 951 (1942). This case involves no federal question. Thus, jurisdiction depends solely upon the diversity of citizenship of the parties. Section 1332 of United States Code Title 28 provides federal courts with diversity jurisdiction. 28 U.S.C. § 1332 (1994). Diversity jurisdiction requires complete diversity between all the plaintiffs and all the defendants. Strawbridge v. Curtiss, 7 U.S. (3 Cranch) 267, 2 L.Ed. 435 (1806); Casas Office Machines, Inc. v. Mita Copystar America, Inc., 42 F.3d 668, 673 (1st Cir.1994). Since statutes conferring diversity jurisdiction must be strictly construed, where a plaintiffs claim of diversity is challenged, the plaintiff has the burden of proof. Thomson v. Gaskill, 315 U.S. 442, 446, 62 S.Ct. 673, 86 L.Ed. 951 (1942); Hawes v. Club Ecuestre El Comandante, 598 F.2d 698, 702 (1st Cir.1979). A person is a citizen of the state in which he is domiciled. Lundquist v. Precision Valley Aviation, Inc., 946 F.2d 8, 10 (1st Cir.1991); Rodríguez-Díaz v. Sierra-Martinez, 853 F.2d 1027, 1029 (1st Cir.1988); Valedón Martínez v. Hospital Presbiteriano de la Comunidad, Inc., 806 F.2d 1128, 1132 (1st Cir.1986). “A person’s domicile ‘is the place where he has a true, fixed home and principal establishment, and to which, whenever he is absent he has the intention of returning.’” Rodríguez-Díaz, 853 F.2d at 1029 (quoting C. Wright, A. Miller & E. Cooper, 13B Federal Practice & Procedure § 3612, at 526 (1984)). Once diversity jurisdiction is established, it is not lost" }, { "docid": "22242234", "title": "", "text": "February 1985, Moss and Harlean submitted an application with officials in Hong Kong for residency there. Moss continues to reside with his wife and family at the Hong Kong apartment. At the hearing on Moss’s motion for dismissal, the district court ruled that Lew bore the burden of establishing that Moss’s domicile was California at the time the complaint was filed. The court stated that the “[p]laintiff always has the burden of establishing subject matter jurisdiction.” The court found that: [T]he plaintiff has not met his burden of establishing that the defendant was a citizen of California at the time this lawsuit was instituted. And so on that basis, I conclude that there is no subject matter jurisdiction because a citizen of the United States cannot be sued under diversity jurisdiction unless he is a citizen of some other state. And in October of ’84 the defendant Stanton Moss was not a citizen of California or of any other state of the United States. The court dismissed Lew’s suit “in its entirety” against both Moss and Harlean. Lew appeals. II LEGAL STANDARD AND STANDARD OF REVIEW Federal district courts are vested with original jurisdiction over civil actions where the matter in controversy exceeds the sum or value of $10,000, exclusive of interest and costs, and is between “citizens of different States.” 28 U.S.C. § 1332(a)(1). To demonstrate citizenship for diversity purposes a party must (a) be a citizen of the United States, and (b) be domiciled in a state of the United States. See, e.g., Kantor v. Wellesley Galleries, Ltd., 704 F.2d 1088, 1090 (9th Cir.1983); Hill v. Rollen, 615 F.2d 886, 889 (9th Cir.1980). Our cases have established several principles to guide this inquiry. First, the party asserting diversity jurisdiction bears the burden of proof. Resnik v. La Paz Guest Ranch, 289 F.2d 814, 819 (9th Cir.1961). Second, a person is “domiciled” in a location where he or she has established a “fixed habitation or abode in a particular place, and [intends] to remain there permanently or indefinitely.’ ” Owens v. Huntling, 115 F.2d 160, 162 (9th Cir.1940) (quoting" }, { "docid": "2183579", "title": "", "text": "for lack of subject matter jurisdiction as both Kubin and Miller are citizens of Connecticut. Specifically, defendants contend that Miller’s numerous contacts with Connecticut support the assertion that Connecticut is his domicile, thus destroying diversity jurisdiction. The Court disagrees. For diversity purposes, an individual’s citizenship is defined as his domicile. See Hawes v. Club Ecuestre El Comandante, 598 F.2d 698, 701 (1st Cir.1979). Justice Holmes explained that every individual may have only one domicile because the law must assign to each person a “technically pre-eminent headquarters ... in order that certain rights and duties that have been attached to it by the law may be determined.” Hawes, 598 F.2d at 701 (citing Williamson v. Osenton, 232 U.S. 619, 625, 34 S.Ct. 442, 443, 58 L.Ed. 758 (1914)). An individual’s domicile is determined by physical presence in the place combined with intent to remain there. Mississippi Band of Choctaw Indians v. Holyfield, 490 U.S. 30, 48, 109 S.Ct. 1597, 1608, 104 L.Ed.2d 29 (1989) (citing Texas v. Florida, 306 U.S. 398, 59 S.Ct. 563, 83 L.Ed. 817 (1939)). When the plaintiff has shown that the defendant had a former domicile, the burden shifts to the defendant to prove that his domicile has changed. Kaiser v. Loomis, 391 F.2d 1007, 1009-10 (6th Cir.1968) (citing Stine v. Moore, 213 F.2d 446, 448 (5th Cir.1954)). To sustain this burden, the defendant must show that he has acquired a new residence and intends to remain there. Kaiser, 391 F.2d at 1009 (cit ing Mitchell v. United States, 88 U.S. (21 Wall.) 350, 353, 22 L.Ed. 584 (1874)). In the present case, the parties do not dispute that Miller was originally domiciled in New York. Defendants contend, however, that Miller’s domicile changed in 1981 when he purchased a home in South Kent, Connecticut. In support of this contention, Miller points to many factors suggesting that Connecticut is his true domicile, including: he renovated the Connecticut home and installed a pool, married in Connecticut in 1983, rented a condominium there during his divorce, uses an office in Connecticut, lists Connecticut as his principal residence on his tax" }, { "docid": "1415111", "title": "", "text": "diversity jurisdiction under 28 U.S.C. § 1332(a)(1), state citizenship is the equivalent of domicile. To effect a change in domicile, two things are indispensable: First, residence in a new domicile, and second, the intention to remain there indefinitely. A “floating intention” to return to a former domicile does not prevent the acquisition of a new domicile. Statutes conferring diversity jurisdiction are to be strictly construed. Where a plaintiff’s claim of diversity is challenged, plaintiff has the burden of proof. Although a trial court’s determination of domicile may be a mixed question of fact and law, such determination on appeal should not be set aside unless clearly erroneous. See Hawes v. Club Ecuestre El Comandante, 598 F.2d 698 (1st Cir.1979) for a discussion of these general principles, and the citations in support thereof. In the instant case, it is undisputed that Crowley was residing in Minnesota for one year before he filed the present suit. What is disputed is whether when he brought suit he intended to remain in Minnesota indefinitely. During the intervening year, Crowley made two short visits to Colorado, and, significantly, had in each instance returned to Minnesota. Crowley had indeed expressed a desire, or possibly only a hope, to return to Colorado if, as and when his condition permitted. However, as indicated, a “floating intention” to return to a former domicile does not prevent the acquisition of a new domicile. In their respective depositions, both Crowley and his mother indicated that when Crowley filed suit he intended to remain in Minnesota indefinitely. Such statements are of course self-serving, but such does not mean that they must be discarded by the trier of the facts, who, on the contrary, may choose to give credence to them. Further, the facts and circumstances of the instant case are such as to permit the inference that Crowley did have the intent to remain indefinitely in Minnesota. Based then on permissible inferences, coupled with the direct testimony of Crowley and his mother, there is ample support in the record for the district court’s determination that Crowley was a citizen of Minnesota when" }, { "docid": "3358589", "title": "", "text": "district court refused to grant the requested relief. Cf. Inter-Gen, 344 F.3d at 144 (determining that case was “poor candidate for judicial estoppel” because it did not present “a situation in which a party has adopted one position, secured a favorable decision, and then taken a contradictory position in search of legal advantage”). If I were to grant the requested estoppel, it would effectively bind Fresenius USA — and the courts — to a mistaken, counter-factual and disavowed statement from which Fresenius has derived no benefit and which in turn inflicts no unfair disadvantage on any plaintiff. Accordingly, I decline to exercise my discretion to estop the removal action of Fre-senius USA. D. Conclusion As a factual matter, I find Fresenius USA’s principal place of business, as well as the state of its incorporation, is located in Massachusetts. The corporation is diverse from the California Plaintiffs, and it is not an in-state defendant for the purposes of the forum defendant rule. The citizenship of Fresenius USA, therefore, does not warrant remand of these cases to California state court. III. THE CITIZENSHIP OF BEN LIPPS A. Legal Standard For diversity purposes, the citizenship of an individual is determined by the location of his or her domicile. Rodriguez-Diaz v. Sierra-Marbinez, 853 F.2d 1027, 1030 (1st Cir.1988). “A person’s domicile is the place where he has his true, fixed home and principal establishment, and to which, whenever he is absent, he has the intention of returning.” Id. (internal quotation marks and citation omitted). In other words, it is “the place where one is present and intends to stay.” Rodriguez v. Señor Frog’s de la Isla, Inc., 642 F.3d 28, 32 (1st Cir.2011). A person can have only one domicile at a time, and until a new domicile is affirmatively established elsewhere, domicile is presumed to continue. See Padilla-Mangual v. Pavia Hosp., 516 F.3d 29, 31-32 (1st Cir.2008) (citing Hawes v. Club Ecuestre El Comandante, 598 F.2d 698, 701 (1st Cir.1979)). A change in domicile requires (1) presence in the new domicile and (2) an intent to remain there. Bank One, Texas, N.A. v." }, { "docid": "15793119", "title": "", "text": "entered March 27, 1986. There is diversity of citizenship if the plaintiff and the defendant are “citizens” of different states. 28 U.S.C. § 1332(a)(1). For the purposes of § 1332(a)(1), state citizenship is the equivalent of “domicile.” Hawes v. Club Ecuestre el Comandante, 598 F.2d 698, 701 (1st Cir.1979). “Domicile” is “the technically preeminent headquarters that every person is compelled to have in order that certain rights and duties that have been attached to it by the law may be determined.” Williamson v. Osenton, 232 U.S. 619, 625 (1914) (Holmes, J.). To effect a change in domicile, two things are required: “ ‘First, residence in a new domicil; and second, the intention to remain there.’ ” Hawes, supra, 598 F.2d at 701 (quoting Sun Printing and Publishing Association v. Edwards, 194 U.S. 377, 383 (1904)). It is well settled that “[d]omicile at the time suit is filed is the test and jurisdiction once established is not lost by a subsequent change in citizenship.” Hawes, supra, 598 F.2d at 701. Accord, Smith v. Sperling, 354 U.S. 91, 93 n. 1 (1957). In denying appellant’s first motion to dismiss for lack of jurisdiction, the district court recognized and correctly applied these principles. The court’s determination that appellee was a citizen of Florida at the time she commenced the action is a mixed question of law and fact and as such may not be set aside unless clearly erroneous. Fed.R.Civ.P. 52(a); Hawes, supra, 598 F.2d at 702; Lyons v. Salve Regina College, 565 F.2d 200, 203 (1st Cir.1977) (although evidence on diversity of citizenship “was both sharply conflicting and rather slim ..., the findings of fact by the District Court cannot be said to be plainly wrong on this record and will, therefore, not be disturbed by this Court.”), cert. denied, 435 U.S. 971 (1978). “ ‘[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.’ ” Anderson v. City of Bessemer City, 470 U.S. 564, 573 (1985) (quoting" }, { "docid": "11507548", "title": "", "text": "appeal, see Velez v. Crown Life Ins. Co., 599 F.2d 471 (1st Cir.1979), and may be raised by either party or the court itself. Basso v. Utah Power and Light Co., 495 F.2d 906 (10th Cir.1974) (citing Atlas Life Ins. Co. v. W.I. Southern, Inc., 306 U.S. 563, 59 S.Ct. 657, 83 L.Ed. 987 (1939). It goes without saying that without proper jurisdiction the federal court has no author ity to decide the merits of a case. See F.R.C.P. 12(h)(3). The federal court has diversity jurisdiction under 28 U.S.C. sect. 1332 of claims in excess of $10,000 when complete diversity of citizenship exists between the parties. Whenever a proper challenge to plaintiffs allegations of diversity jurisdiction is made, plaintiff has the burden of supporting the allegations by a preponderance of the evidence. McNutt v. General Motors Acceptance Corp., 298 U.S. 178, 56 S.Ct. 780, 80 L.Ed. 1135 (1936); Reyes v. Eastern Airlines, Inc., 528 F.Supp. 765 (D.P.R.1981). Plaintiff must establish that the court had jurisdiction as of the date the complaint was filed. Janzen v. Goos, 302 F.2d 421, 424 (8th Cir.1962); Lefkowitz v. Lider, 443 F.Supp. 352, 355 (D.Mass.1978). A party’s citizenship for diversity purposes is the place of domicile. Hawes v. Club Ecuestre el Comandante, 598 F.2d 698, 702 (1st Cir.1979). Two elements are necessary to establish domicile: 1) physical presence in the claimed domicile, and 2) an intent to remain there indefinitely. Sun Printing & Publishing Assn. v. Edwards, 194 U.S. 377, 383, 24 S.Ct. 696, 698, 48 L.Ed. 1027 (1904); Miller Press Factory, Inc. v. Douglas, 385 F.Supp. 874 (D.P.R. 1974). Though no minimum period of physical presence is required, Hawes, supra at 701, both elements must exist simultaneously to establish domicile; one element alone is insufficient. Sun Printing, supra; see also, Honneus v. Donovan, 93 F.R.D. 433, 434, fn. 1 (D.Mass.1982); Wright, Miller & Cooper, Federal Practice and Procedure: Jurisdiction 2nd., sect. 3613. Once the elements are met a new domicile is established instantaneously. A plaintiff who claims to have changed his domicile in favor of a new one has a particularly heavy burden of" }, { "docid": "1897330", "title": "", "text": "Casas Office Machines, Inc. v. Mita Copystar America, Inc., 42 F.3d 668, 673 (1st Cir.1994). Since statutes conferring diversity jurisdiction must be strictly construed, where a plaintiffs claim of diversity is challenged, the plaintiff has the burden of proof. Thomson v. Gaskill, 315 U.S. 442, 446, 62 S.Ct. 673, 86 L.Ed. 951 (1942); Hawes v. Club Ecuestre El Comandante, 598 F.2d 698, 702 (1st Cir.1979). A person is a citizen of the state in which he is domiciled. Lundquist v. Precision Valley Aviation, Inc., 946 F.2d 8, 10 (1st Cir.1991); Rodríguez-Díaz v. Sierra-Martinez, 853 F.2d 1027, 1029 (1st Cir.1988); Valedón Martínez v. Hospital Presbiteriano de la Comunidad, Inc., 806 F.2d 1128, 1132 (1st Cir.1986). “A person’s domicile ‘is the place where he has a true, fixed home and principal establishment, and to which, whenever he is absent he has the intention of returning.’” Rodríguez-Díaz, 853 F.2d at 1029 (quoting C. Wright, A. Miller & E. Cooper, 13B Federal Practice & Procedure § 3612, at 526 (1984)). Once diversity jurisdiction is established, it is not lost by a later change in domicile. Lundquist, 946 F.2d at 10; Valedón Martínez, 806 F.2d at 1132; Hawes, 598 F.2d at 701; Bank One, Texas, N.A. v. Montle, 964 F.2d 48, 49-50 (1st Cir.1992). It is the party seeking to invoke the federal court’s jurisdiction by asserting change in domicile that has the burden of proving such a change by clear and convincing evidence. See Katz v. Goodyear Tire & Rubber Co., 737 F.2d 238, 243 (2d Cir.1984). In other words, a Plaintiff maintains his original domicile until he can prove by clear and convincing evidence that he has changed that domicile. Therefore, in his case, we consider Plaintiff’s domicile to be in Puerto Rico unless he can show by clear and convincing evidence that he has changed his domicile. Domicile generally requires two elements: 1) physical presence in a state, and 2) the intent to make such a state a home. Rodríguez-Díaz v. Sierra-Martinez, 853 F.2d 1027, 1029 (1st Cir.1988). “The relevant standard is ‘citizenship,’ ie. ‘domicile,’ not mere residence; a party may reside" }, { "docid": "2553043", "title": "", "text": "v. Masonite Corp., 455 F.2d 955 (5 Cir. 1972). There are several cases in which a per son who claimed a certain domicile was held to have retained citizenship in another place. E. g., Herzog v. Herzog, 333 F.Supp. 477 (D.C.Pa.1971). Domicile is usually a matter of physical presence. When this physical presence is coupled with an intention of making it a home, change in domicile is instantaneous. Case v. Clarke, 5 Fed.Case 254, 5 Mason 70 (1828) (J. Story). Where, however, there is no true intent to make a place a permanent home, domicile cannot be said to lie there. Id. A court should not inquire into the motives for a change in domicile. Where, however, a person absents himself from a place for the purpose of avoiding jurisdiction, and has no bonafide intent to change his domicile, a Court need not “wink so hard as not to see, that the [party] never had any intention to change his domicile. . . .” Id. In addition, courts have tackled with the problem of an individual who has relinquished his prior domicile, but has not established a domicile elsewhere. Some cases hold that such a person is “stateless,” and has no place of domicile. Pannill v. Roanoke Times Co., 252 F. 910 (W.D.Va.1918). The better proposition, however, is that a person who leaves his domicile retains that domicile until he acquires a new one. Kaiser v. Loomis, 391 F.2d 1007 (6 Cir. 1968). Thus, even if Bussey has left the state, he will be considered to be a citizen of the State of Florida unless he has established a place of domicile elsewhere. Accordingly, an evidentiary hearing will be scheduled for the purpose of determining jurisdiction under the diversity statute. Plaintiffs will have the burden of making a prima facie showing that federal jurisdiction exists. Fisher v. First Nat. Bank of Omaha, 338 F.Supp. 525 (S.D.Iowa 1972). The parties should, where possible, submit affidavits in support of their contentions. The parties may, of course, subpoena witnesses or other parties to appear to testify at the hearing, but every effort should" }, { "docid": "12480270", "title": "", "text": "doubt a question of domicile (in fact) is often determinative of the question of citizenship (Morris v. Gilmer, 129 U. S. 315, 328, 9 Sup. Ct. 289, 32 L. Ed. 690); but it is a very different thing to assert that a mere theoretical domicile, existing with intent never to return to it, is the same thing as citizenship. In the case before us the plaintiff at the institution of the suit did not reside in California, he had no place of abode there, and he intended nfver to return there. Assuredly it is very difficult to reconcile any theory of citizenship or any definition of the word “citizen\" with such facts. Citizenship implies membership in a political society, the relation of allegiance and protection, identification with the state, and a participation in its functions. While a temporary absence may suspend the relation between a state and its citizen, the latter’s identification with the former remains because of his intention to return. If A., a citizen of California, sells his home and with his family takes up his residence in Virginia, for a temporary purpose, intending to return to California, he undoubtedly retains his domicile and citizenship in California; and his case may bear close resemblance to the case at bar. A. may also be said to have only a theoretical domicile in California. But the essential difference between A.’s status and that of Pannill is that A. intends to return to California and Pannill does not; California is A.’s home, and it is not in any sense Pannill’s home. A. has only temporarily surrendered his membership in the political society of California and his participation in its functions; while Pan-nill has permanently ended his connection with that state. It is true that a citizen of the United States, who- is a mere homeless wanderer and not a citizen of any state, would encounter the same risk of local prejudice in the state courts that would be encountered by citizens of other states. But so would citizens of the District of Columbia: The latter are not included in the grant" }, { "docid": "11507549", "title": "", "text": "Goos, 302 F.2d 421, 424 (8th Cir.1962); Lefkowitz v. Lider, 443 F.Supp. 352, 355 (D.Mass.1978). A party’s citizenship for diversity purposes is the place of domicile. Hawes v. Club Ecuestre el Comandante, 598 F.2d 698, 702 (1st Cir.1979). Two elements are necessary to establish domicile: 1) physical presence in the claimed domicile, and 2) an intent to remain there indefinitely. Sun Printing & Publishing Assn. v. Edwards, 194 U.S. 377, 383, 24 S.Ct. 696, 698, 48 L.Ed. 1027 (1904); Miller Press Factory, Inc. v. Douglas, 385 F.Supp. 874 (D.P.R. 1974). Though no minimum period of physical presence is required, Hawes, supra at 701, both elements must exist simultaneously to establish domicile; one element alone is insufficient. Sun Printing, supra; see also, Honneus v. Donovan, 93 F.R.D. 433, 434, fn. 1 (D.Mass.1982); Wright, Miller & Cooper, Federal Practice and Procedure: Jurisdiction 2nd., sect. 3613. Once the elements are met a new domicile is established instantaneously. A plaintiff who claims to have changed his domicile in favor of a new one has a particularly heavy burden of establishing citizenship, since the law presumes that a domicile once established continues unless and until a new domicile is acquired. Anderson v. Watt, 138 U.S. 694, 11 S.Ct. 449, 34 L.Ed. 1078 (1891); Holmes v. Sopuch, 639 F.2d 431 (8th Cir.1981); Slaughter v. Toye Bros. Yellow Cab Co., 359 F.2d 954 (5th Cir.1966); Wright, Miller & Cooper, supra, sect. 3612. The reason for this presumption is to solve the problem of locating an individual who has clearly abandoned his present domicile but either has not arrived at a new one or has arrived without formulating the intent to stay. Wright, Miller & Cooper, supra, sect. 3612. This presumption may also apply in the case of an American citizen living abroad temporarily. In our Opinion and Order of October 1, 1985, we relied on plaintiff’s statements in his affidavit of his desire to move to California and his intent to remain there indefinitely. In the affidavit plaintiff testifies that he and his wife had decided to settle in California because they liked the area, his wife" }, { "docid": "2183578", "title": "", "text": "courts have original jurisdiction over civil actions where “the matter in controversy exceeds the sum or value of $50,000, exclusive of interest and costs, and is between ... citizens of different states.” 28 U.S.C. § 1332. It is well-settled that the diversity of citizenship requirement is not met when any opposing parties are citizens of the same state. Strawbridge v. Curtiss, 7 U.S. (3 Cranch) 267, 2 L.Ed. 435 (1806). The citizenship of the parties is to be determined by the court as of the time the action is commenced. See, e.g., Dullard v. Berkeley Associates Co., 606 F.2d 890, 893 (2d Cir.1979); Caldararo v. Au, 570 F.Supp. 39, 40 (S.D.N.Y.1983). The party seeking to invoke diversity jurisdiction must sustain the burden of proving that complete diversity existed at the time the action was commenced. See, e.g., Boyd, Weir & Sewell Inc. v. Fritzen-Halcyon LIJN, Inc., 709 F.Supp. 77, 78 (S.D.N.Y.1989) (citing Willis v. Westin Hotel Co., 651 F.Supp. 598, 601 (S.D.N.Y.1986)). A. Citizenship of Larry Miller Defendants contend that this action should be dismissed for lack of subject matter jurisdiction as both Kubin and Miller are citizens of Connecticut. Specifically, defendants contend that Miller’s numerous contacts with Connecticut support the assertion that Connecticut is his domicile, thus destroying diversity jurisdiction. The Court disagrees. For diversity purposes, an individual’s citizenship is defined as his domicile. See Hawes v. Club Ecuestre El Comandante, 598 F.2d 698, 701 (1st Cir.1979). Justice Holmes explained that every individual may have only one domicile because the law must assign to each person a “technically pre-eminent headquarters ... in order that certain rights and duties that have been attached to it by the law may be determined.” Hawes, 598 F.2d at 701 (citing Williamson v. Osenton, 232 U.S. 619, 625, 34 S.Ct. 442, 443, 58 L.Ed. 758 (1914)). An individual’s domicile is determined by physical presence in the place combined with intent to remain there. Mississippi Band of Choctaw Indians v. Holyfield, 490 U.S. 30, 48, 109 S.Ct. 1597, 1608, 104 L.Ed.2d 29 (1989) (citing Texas v. Florida, 306 U.S. 398, 59 S.Ct. 563, 83 L.Ed." }, { "docid": "15793118", "title": "", "text": "enrolled in college. In December 1983, appellee returned to Florida and unsuccessfully applied for admission to several universities in Miami. After commencing the instant action on March 21, 1984, appellee worked in Miami until July 1984, when she returned to Puer-to Rico to finish school. She planned to return to Miami on completion of her schooling in the summer of 1985. Throughout this period, appellee kept her personal belongings in Miami, maintained a bank account there and not in Puerto Rico, worked only in Miami, and intended to make Florida her home. As stated above, the district court entered an order on August 20, 1985 denying appellant’s motion to dismiss for lack of subject matter jurisdiction. The court held that appellee was a citizen of Florida at the time she commenced the action and, appellant being a citizen of Puerto Rico, the court had jurisdiction based on diversity of citizenship. On September 6, 1985, appellant filed various post-trial motions, including one to dismiss for lack of jurisdiction. The court denied this motion by an order entered March 27, 1986. There is diversity of citizenship if the plaintiff and the defendant are “citizens” of different states. 28 U.S.C. § 1332(a)(1). For the purposes of § 1332(a)(1), state citizenship is the equivalent of “domicile.” Hawes v. Club Ecuestre el Comandante, 598 F.2d 698, 701 (1st Cir.1979). “Domicile” is “the technically preeminent headquarters that every person is compelled to have in order that certain rights and duties that have been attached to it by the law may be determined.” Williamson v. Osenton, 232 U.S. 619, 625 (1914) (Holmes, J.). To effect a change in domicile, two things are required: “ ‘First, residence in a new domicil; and second, the intention to remain there.’ ” Hawes, supra, 598 F.2d at 701 (quoting Sun Printing and Publishing Association v. Edwards, 194 U.S. 377, 383 (1904)). It is well settled that “[d]omicile at the time suit is filed is the test and jurisdiction once established is not lost by a subsequent change in citizenship.” Hawes, supra, 598 F.2d at 701. Accord, Smith v. Sperling, 354 U.S." }, { "docid": "22242235", "title": "", "text": "and Harlean. Lew appeals. II LEGAL STANDARD AND STANDARD OF REVIEW Federal district courts are vested with original jurisdiction over civil actions where the matter in controversy exceeds the sum or value of $10,000, exclusive of interest and costs, and is between “citizens of different States.” 28 U.S.C. § 1332(a)(1). To demonstrate citizenship for diversity purposes a party must (a) be a citizen of the United States, and (b) be domiciled in a state of the United States. See, e.g., Kantor v. Wellesley Galleries, Ltd., 704 F.2d 1088, 1090 (9th Cir.1983); Hill v. Rollen, 615 F.2d 886, 889 (9th Cir.1980). Our cases have established several principles to guide this inquiry. First, the party asserting diversity jurisdiction bears the burden of proof. Resnik v. La Paz Guest Ranch, 289 F.2d 814, 819 (9th Cir.1961). Second, a person is “domiciled” in a location where he or she has established a “fixed habitation or abode in a particular place, and [intends] to remain there permanently or indefinitely.’ ” Owens v. Huntling, 115 F.2d 160, 162 (9th Cir.1940) (quoting Pickering v. Winch, 48 Or. 500, 87 P. 763, 765 (1906)); 1 J. Moore, Moore’s Federal Practice 110.74(3-3), at 707.58-60 (1985) [hereinafter Moore’s]. Third, the existence of domicile for purposes of diversity is determined as of the time the lawsuit is filed. Hill, 615 F.2d at 889. Finally, a person’s old domicile is not lost until a new one is acquired. Barber v. Varleta, 199 F.2d 419, 423 (9th Cir.1952); see also Restatement (Second) of Conflicts §§ 18-20 (1971) (and examples provided). A change in domicile requires the confluence of (a) physical presence at the new location with (b) an intention to remain there indefinitely. See Owens, 115 F.2d at 162; 13B C. Wright, A. Miller, & E. Cooper, Federal Practice and Procedure § 3613, at 544-45 (1984 & Supp.1986) [hereinafter Wright & Miller ]. Courts in other jurisdictions have recognized additional principles relevant to our present analysis. The courts have held that the determination of an individual’s domicile involves a number of factors (no single factor controlling), including: current residence, voting registration and voting" }, { "docid": "9505686", "title": "", "text": "the newsstands on Aug. 1, 1986. The board fired Buckley on Aug. 8, and Allegheny later declared bankruptcy. Business Week July 3, 1989, cover, p. 68. Plaintiff filed this action on July 20, 1989, alleging that statements in both articles are false and defamatory. I. Subject Matter Jurisdiction Section 1332(a) vests this court with “original jurisdiction of all civil actions where the matter in controversy exceeds the sum or value of $50,000, exclusive of interests and costs, and is between ... (1) citizens of different States.” Defendants contend that the complete diversity demanded by this statute does not exist here because plaintiff is a citizen of Pennsylvania and, as admitted in the complaint, four of the defendants—Symonds, Schroeder, Miles, and Weber—are also Pennsylvania citizens. Plaintiff maintains that he is a Florida citizen. For diversity purposes, state citizenship is equated with domicile. Hawes v. Club Ecuestre El Comandante, 598 F.2d 698, 701 (1st Cir.1979). A person’s domicile “is the place where he has his true, fixed home and principal establishment, and to which, whenever he is absent, he has the intention of returning.” 13B Wright, Miller & Cooper, Federal Practice and Procedure § 3612, at 526. Domicile generally requires two elements: (1) physical presence in a state and (2) the intent to make that state a home. 1 Moore, Lucas, Fink, Weckstein & Wicker, Moore’s Federal Practice 111.74[3.-1]. “It is the domicile at the time the suit is filed which con-trols_” Rodriguez-Diaz v. Sierra-Martinez, 853 F.2d 1027, 1029 (1st Cir.1988). When this court first considered the instant motion, it granted defendants’ request for a hearing on the disputed issue of plaintiff’s citizenship. The magistrate/judge found plaintiff to be a Florida citizen, and defendants object pursuant to 28 U.S.C. § 636(b)(1)(C). For the reasons that follow, the court, after de novo review, 28 U.S.C. § 636(b)(1), accepts the magistrate/judge’s R & R and finds that plaintiff was a Florida citizen at the time this action was filed. The facts relevant to plaintiff’s citizenship are as follows. In 1972, plaintiff be came president of Allegheny International (“AI”) and moved to Sewickley, Pennsylvania. He" }, { "docid": "217525", "title": "", "text": "she filed her Complaint. Domicile generally requires two elements: 1) presence in the alleged state of domicile, and 2) the intent to remain there. Bank One, Texas, N.A., 964 F.2d at 50; Valedon Martinez v. Hospital Presbiteriano de la Comunidad, Inc., 806 F.2d 1128, 1132 (1st Cir.1986); Wright, Miller & Cooper, Federal Practice and Procedure: Jurisdiction 2d § 3613 (1984). Long settled case law holds that state citizenship is equivalent to domicile for purposes of determining diversity jurisdiction. Williamson v. Osenton, 232 U.S. 619, 34 S.Ct. 442, 58 L.Ed. 758 (1914); Lundquist v. Precision Valley Aviation Inc., 946 F.2d 8, 10 (1st Cir.1991). In addressing the issue of domicile, this Circuit has held that “[t]he relevant standard is ‘citizenship,’ i.e. ‘domicile,’ not mere residence; a party may reside in more than one state but can be domiciled, for diversity purposes, in only one.” Lundquist, 946 F.2d at 10. The First Circuit has also held that “a person’s domicile ‘is the place where he has his true, fixed home and principal establishment, and to which, whenever he is absent, he has the intention of returning’.” Rodriguez-Diaz v. Sierra-Martinez, 853 F.2d 1027, 1029 (1st Cir.1988) (citing 13B C. Wright, A. Miller & E. Cooper, Federal Practice & Procedure §§ 3612, at 526 (1984)). The law presumes that once a domicile is acquired, it continues until a new domicile is established. Bank One, Texas, N.A 964 F.2d at 50 (citing Halves v. Club Ecuestre El Comandante, 598 F.2d 698, 701 (1st Cir.1979). Thus, a plaintiff who claims to have changed his domicile carries a heavy burden to demonstrate that he has established a new domicile, in order for the previously established domicile to not control. Id.; White v. All America Cable & Radio, Inc., 642 F.Supp. 69, 72 (D.Puerto Rico 1986). Moreover, once diversity jurisdiction is challenged, a plaintiff asserting it must demonstrate the facts supporting diversity jurisdiction by a preponderance of the evidence. Bank One, Texas, N.A., 964 F.2d at 50; Alicia-Rivera v. SIMED, 12 F.Supp.2d 243, 245 (D.Puerto Rico 1998) (“It is the party seeking to invoke the federal court’s jurisdiction" }, { "docid": "15681600", "title": "", "text": "we turn to the legal issues on appeal, noting further facts as needed. The Diverse-Citizenship Issue The diversity-jurisdiction statute empowers federal courts to hear and decide suits between citizens of different states, provided the amount in controversy is more than $75,000. See 28 U.S.C. § 1332(a). Puerto Rico is a state for diversity-jurisdiction purposes. See id. § 1332(e). And Señor Frog is a citizen of Puerto Rico, see id. § 1332(c)(1), so Rodriguez’s suit is untenable if she was a Puerto Rico citizen when she filed her December 1, 2005 complaint, see, e.g., Hall v. Curran, 599 F.3d 70, 72 (1st Cir.2010) (per curiam). Señor Frog argues that she was, though it did not press this argument until after Rodriguez had rested her case. Cf. generally Valentin v. Hospital Bella Vista, 254 F.3d 358, 362 (1st Cir.2001) (calling a preanswer motion to dismiss under Fed. R.Civ.P. 12(b)(1) the “proper vehicle for challenging a court’s subject-matter jurisdiction”). But after an evidentiary hearing, the judge deemed Rodríguez a citizen of California when she sued, and this conclusion survives dear-error review. See, e.g., Padilla-Mangual v. Pavía Hosp., 516 F.3d 29, 32 (1st Cir.2008) (noting that a district judge’s determination in this area is “a mixed question of law and fact,” which we review under the “clearly erroneous” rubric) (internal quotation marks omitted); Cantellops v. Alvaro-Chapel, 234 F.3d 741, 742 (1st Cir.2000) (similar). Citizenship for diversity purposes is domicile, and domicile is the place where one is present and intends to stay. See, e.g., Padilla-Mangual, 516 F.3d at 31 (explaining that “[a] person’s domicile is the place where he has his true, fixed home and principal establishment, and to which, whenever he is absent, he has the intention of returning”) (quoting Rodríguez-Díaz v. Sierra-Martínez, 853 F.2d 1027, 1029 (1st Cir.1988) (internal quotation marks omitted)); García Pérez v. Santaella, 364 F.3d 348, 350 (1st Cir.2004) (similar); see also Hawes v. Club Ecuestre El Comandante, 598 F.2d 698, 701 (1st Cir.1979) (adding that we require “no minimum period of residency”). As the party invoking diversity jurisdiction, Rodriguez had to prove domicile by a preponderance of the" }, { "docid": "23345302", "title": "", "text": "to dismiss. After a non-evidentiary hearing, held on March 28, 1991, the court denied Montle’s motion. The court then granted Bank One’s motion for summary judgment on its claims and Montle’s counterclaims, explaining its ruling in a Memorandum and Order dated May 6, 1991. 764 F.Supp. 687. Montle appeals. We remand for further proceedings on the question of diversity of citizenship between the parties. I. Federal jurisdiction based on diversity of citizenship requires that the matter in controversy be between citizens of different states. 28 U.S.C. § 1332(a)(1). For purposes of diversity, a person is a citizen of the state in which he is domiciled. Lundquist v. Precision Valley Aviation, Inc., 946 F.2d 8, 10 (1st Cir.1991); Rodriguez-Diaz v. Sierra-Martinez, 853 F.2d 1027, 1029 (1st Cir.1988); Valedon Martinez v. Hospital Presbiteriano de la Comunidad, Inc., 806 F.2d 1128, 1132 (1st Cir.1986). “A person’s domicile ‘is the place where he has a true, fixed home and principal establishment, and to which, whenever he is absent he has the intention of returning.’ ” Rodriguez-Diaz, 853 F.2d at 1029 (quoting C. Wright, A. Miller & E. Cooper, 13B Federal Practice & Procedure § 3612, at 526 (1984)). Domicile is determined as of the time the suit is filed, and once diversity jurisdiction is established, it is not lost by a later change in domicile. Lundquist, 946 F.2d at 10; Valedon Martinez, 806 F.2d at 1132; Hawes v. Club Ecuestre El Comandante, 598 F.2d 698, 701 (1st Cir.1979). II. In contesting Bank One’s assertion of diversity jurisdiction, Montle stated that before the date the complaint was filed, July 30, 1990, he had changed his domicile from Massachusetts to Texas — the same state of which Bank One was a citizen. Generally, once challenged, “the party invoking subject matter jurisdiction [here Bank One] has the burden of proving by a preponderance of the evidence the facts supporting jurisdiction.” James W. Moore et al., Moore’s Federal Practice ¶ 0.71[5.—1] (2d ed. 1985); see also Lundquist, 946 F.2d at 10 (plaintiff must support allegation of jurisdiction by “competent proof”); O’Toole v. Arlington Trust Co., 681 F.2d 94," } ]

[ { "docid": "2106774", "title": "", "text": "State Prison, 415 F.2d 247, 250-51 (3d Cir.1969), cert. denied, 397 U.S. 948, 90 S.Ct. 967, 25 L.Ed.2d 129 (1970); see also Kovats v. Rutgers, the State University, 822 F.2d 1303 (3d Cir.1987). I need not laboriously apply the nine factors to the facts of this case because I agree with the well reasoned, exhaustive analyses of my colleagues Judges Barry and Debevoise, as well as former Judges Stern and Lacey in recent opinions concluding that eleventh amendment immunity does not protect UMDNJ. See Gona v. University of Medicine and Dentistry of New Jersey, Civ. No. 83-3828, slip op. (D.N.J. Aug. 15, 1986) (Debevoise, J.); Cohen v. Board of Trustees of the University of Medicine and Dentistry, Civ. No. 85-3841, slip op. (D.N.J. June 27, 1986) (Barry, J.), appeal docket, No. 87-5121 (3d Cir. February 13, 1987); see also Khalil v. University of Medicine and Dentistry, Civ. No. 86-1066, letter op., (D.N.J. Nov. 30, 1986) (Stern, J.), appeal docket, No. 87-5309 and 87-5443 (3d Cir. May 1, 1987 and July 7, 1987); Mauriello v. University of Medicine and Dentistry, Civ. No. 83-1569 (D.N.J. Aug. 10, 1984), rev’d on other grounds, 781 F.2d 46 (3d Cir.1986). In denying defendant UMDNJ’s motions for summary judgment, Judges Barry and De-bevoise relied primarily on findings that UMDNJ could not establish that judgments against it would be satisfied exclusively from state funds. Cohen, slip op. at 18; Gona, slip op. at 9-10. Moreover, although it is dispositive here, I note that the Appellate Division of New Jersey Superior Court has found that UMDNJ is not an alter-ego of the state in a state court action brought by Ms. Fuchilla. See Fuchilla v. Layman, 210 N.J.Super. 574, 581-82, 510 A.2d 281 (App.Div.), certif. granted, 105 N.J. 563, 523 A.2d 196 (1986). Accordingly, based on the foregoing authorities, I reject this ground for summary judgment. This holding that UMDNJ is not immune also disposes of defendants’ next argument that the individual defendant, Dr. Prockop, enjoys eleventh amendment immunity. Defendants contend that any judgment against him would be paid out of the state treasury. However, immunity of employees" } ]

[ { "docid": "23373577", "title": "", "text": "although important, is not dispositive. We so held in Port Authority Police Benevolent Association v. Port Authority of New York and New Jersey, 819 F.2d 413 (3d Cir.1987). Payment is only meaningful in light of the entity’s other attributes. Blake v. Kline, 612 F.2d 718, 724 (3d Cir.), cert. denied, 447 U.S. 921, 100 S.Ct. 3011, 65 L.Ed.2d 1112 (1980). “If the state structures an entity in such a way that the other relevant criteria indicate it to be an arm of the state, then immunity may be retained even where damage awards are funded by the state at the state’s discretion.” Kovats v. Rutgers, the State University, 822 F.2d 1303, 1310 (3d Cir.1987) (footnote omitted). Although NJTRO is unquestionably something of a hybrid, I believe that overall the factors developed in Urbano v. Board of Managers, 415 F.2d 247 (3d Cir.1969), cert. denied, 397 U.S. 948, 90 S.Ct. 967, 25 L.Ed.2d 129 (1970), relative to this eleventh amendment inquiry weigh in favor of holding NJTRO to be the alter ego of the state. I therefore respectfully dissent. Before commencing with my analysis, I observe that NJTRO is a wholly owned subsidiary of New Jersey Transit Corporation (NJT). Therefore, any eleventh amendment immunity conferred upon NJTRO would be derivative of that possessed by NJT. See Kovats, 822 F.2d at 1306. I. FUNDING The majority combines three of the Ur-bano factors relating to finance under the general heading of “funding”: whether payment will come from the state treasury; whether the entity has the power to satisfy the judgment; and whether the sovereign has immunized itself from responsibility for the entity’s debts. Although I take no exception to that analytic approach, I cannot agree that in the end the funding factor is determinative of the alter ego status. As a preliminary matter, I quite agree with the majority that “the nature of the state’s obligation to contribute may be more important than the size of the contribution.” Maj. op. at 660 (quoting Blake v. Kline, 612 F.2d 718, 723 (3d Cir.1979), cert. denied, 447 U.S. 921, 100 S.Ct. 3011, 65 L.Ed.2d 1112" }, { "docid": "1282909", "title": "", "text": "v. University of Kansas, 451 F.2d 1287 (10th Cir.1971); Walstad v. University of Minnesota Hosps., 442 F.2d 634 (8th Cir.1971); Contra Goss v. San Jacinto Jr. College, 588 F.2d 96 (5th Cir.), modified, 595 F.2d 1119 (1979). In our review we have found only one appellate court decision holding that a state university does not share in its state’s eleventh amendment immunity. Kovats v. Rutgers, the State Univ., 822 F.2d 1303 (3d Cir.1987) (Rutgers not immune). In addition, one court expressed doubt about the matter. Soni v. Board of Trustees of Univ. of Tennessee, 513 F.2d 347 (6th Cir.1975) (court unclear about University of Tennessee's eligibility for immunity, but concluded that if such immunity existed it had been waived by the state), cert. denied, 426 U.S. 919, 96 S.Ct. 2623, 49 L.Ed.2d 372 (1976). . As stated earlier, Sherman's suggestions in opposition to the Curators' Motion to Dismiss presented numerous factual allegations highlighting the degree of funding autonomy enjoyed by the University. For example, Sherman alleged that the State of Missouri provides only one-third of the funds toward the University’s overall operating budget. Sherman also alleged that the University maintains bank accounts separate from the State, and that revenues generated by University operations such as a commercial television station and a nuclear reactor facility are not funneled to or through the State. . As noted earlier, Missouri has abrogated its sovereign immunity in contract cases and now permits such cases to be brought in state court. The question presented here, however, concerns a possible eleventh amendment bar to contract actions against a state-connected entity in federal court. . In Kovats, where the court found Rutgers not entitled to eleventh amendment immunity, the court delineated nine factors used to determine when an entity shares in its state’s eleventh amendment immunity: (1) local law and decisions defining the status and nature of the agency involved in its relation to the sovereign; (2) most importantly, whether the payment of the judgment will have to be made out of the state treasury; (3) whether the agency has the funds or the power to satisfy" }, { "docid": "23373576", "title": "", "text": "received from other sources (plus interest) can be considered as coming from monies that NJT obtained from the other sources, and thus do not fall under the rubric of state-provided funds. And, in any case, in light of the discussion above, see supra even if some of the money that pays the judgments came from state appropriations, that does not entitle NJT to sovereign immunity. . Because we so conclude, we need not reach the issue of whether Congress has abrogated NJT’s sovereign immunity, or whether New Jersey has waived it. ROSENN, Circuit Judge, dissenting. The majority holds that NJTRO is so independent of the state as to not merit its eleventh amendment immunity. The majority reaches this result by relying, in essence, only on its analysis of one of the Urbano factors, the impact of a judgment against NJTRO on the treasury of the State of New Jersey. This court, however, has stated that funding alone does not resolve the immunity issue. Whether payment is from the state treasury or from an independent entity, although important, is not dispositive. We so held in Port Authority Police Benevolent Association v. Port Authority of New York and New Jersey, 819 F.2d 413 (3d Cir.1987). Payment is only meaningful in light of the entity’s other attributes. Blake v. Kline, 612 F.2d 718, 724 (3d Cir.), cert. denied, 447 U.S. 921, 100 S.Ct. 3011, 65 L.Ed.2d 1112 (1980). “If the state structures an entity in such a way that the other relevant criteria indicate it to be an arm of the state, then immunity may be retained even where damage awards are funded by the state at the state’s discretion.” Kovats v. Rutgers, the State University, 822 F.2d 1303, 1310 (3d Cir.1987) (footnote omitted). Although NJTRO is unquestionably something of a hybrid, I believe that overall the factors developed in Urbano v. Board of Managers, 415 F.2d 247 (3d Cir.1969), cert. denied, 397 U.S. 948, 90 S.Ct. 967, 25 L.Ed.2d 129 (1970), relative to this eleventh amendment inquiry weigh in favor of holding NJTRO to be the alter ego of the state. I" }, { "docid": "1282902", "title": "", "text": "established a framework for determining whether the eleventh amendment applies to a subdivision of the state: ‘Courts typically look at the degree of local autonomy and control and most important ly whether the funds to pay any award will be derived from the state treasury.’ Id. at 453 (quoting Laje, 665 F.2d at 727). Sherman contends that the district court failed to analyze whether the University maintains non-state funds out of which the judgment could be paid, and failed to consider the University’s overall degree of autonomy from the State of Missouri. We agree that the analysis reflected in the district court’s Order fails to meet the demands of Greenwood. Nothing in the district court’s Order indicates that the court considered Sherman’s factual allegations about the Uni versity’s autonomy, funding sources, or non-state revenues. The Curators assert that although the district court did not expressly discuss any factual considerations in its Order, the court did consider the unique characteristics of the University before making its immunity determination. The Curators farther maintain that the district court properly grounded its finding of eleventh amendment immunity on federal district court and Missouri cases which have found the University to be an “arm of the state” entitled to partake of the state’s immunity. See Hoferek, 604 F.Supp. at 940; Hemphill v. Moore, 661 F.Supp. 1192, 1195 (E.D.Mo.1987); Krasney v. Curators of Univ. of Missouri, 765 S.W.2d 646, 649 (Mo.Ct.App.1989); Strong v. Curators of Univ. of Missouri, 575 S.W.2d 812 (Mo.Ct.App.1978). Stare decisis, according to the Curators, requires that we affirm the dismissal here. While the Curators assert correctly that federal courts consider state law in determining whether a state-related entity shares eleventh amendment immunity, see Greenwood, 778 F.2d at 453 (court must examine entity’s characteristics “as created by state law”), the state court cases cited by the Curators are inapposite because they concern the University’s status with respect to sovereign immunity rather than eleventh amendment immunity. The two federal district court cases cited by the Curators, Hoferek and Hemphill, hold that the University shares in the State of Missouri’s eleventh amendment immunity. Neither Hoferek" }, { "docid": "14452878", "title": "", "text": "finances — the essence of the Eleventh Amendment inquiry — the State Board’s ultimate authority is ensured by its power to withhold state funding if NACTC fails to comply with “prescribed standards of administration or instruction.” § 6-53-105 (Supp.1993). Read together , the provisions delimiting the responsibility of the State and Local Boards reveal a community college system that blends state and local interests and authorities. The local control is of course relevant but falls short, in our view, of making NACTC the Eleventh Amendment equivalent of a political subdivision. In the final analysis, while Eleventh Amendment immunity is a question of federal law, the structuring of state government is the province of the States. Nothing precludes a State from delivering regional or even local governmental services through an arm of the State, from permitting voters in an affected locale to help staff a state agency, or from providing highly structured local input to state agency deci-sionmaking. Here, Arkansas calls NACTC a state agency, allows for substantial local autonomy but provides ultimate state control, and — most importantly — funds the agency’s general operations primarily from the state treasury. We agree with the district court that NACTC is entitled to Eleventh Amendment immunity. The judgment of the district court is affirmed. . The HONORABLE H. FRANKLIN WATERS, Chief Judge, United States District Court for the Western District of Arkansas. . For cases involving Eighth Circuit institutions, see Dover Elevator Co. v. Arkansas State Univ., 64 F.3d 442, 446-47 (8th Cir.1995); Richmond v. Board of Regents of Univ. of Minn., 957 F.2d 595, 599 (8th Cir.1992); Sherman v. Curators of Univ. of Mo., 871 F.Supp. 344, 345 (W.D.Mo.1994); Van Pilsum v. Iowa State Univ. of Science and Tech., 863 F.Supp. 935, 937 (S.D.Iowa 1994); Assaad-Faltas v. University of Ark. for Medical Sciences, 708 F.Supp. 1026, 1030 (E.D.Ark.1989), aff'd, 902 F.2d 1572 (8th Cir.), cert. denied, 498 U.S. 905, 111 S.Ct. 271, 112 L.Ed.2d 227 (1990). A fact specific exception to the general rule is Kovats v. Rutgers, the State Univ., 822 F.2d 1303, 1307 (3d Cir.1987). . See, e.g., Mitchell v." }, { "docid": "1282905", "title": "", "text": "These cases do not resolve the question. Accordingly, we remand this case for factual findings in light of this opinion and Greenwood. If Sherman’s unrebutted factual allegations are true — for example, that only one-third of the University’s operating budget comes from state appropriations — the University should explain why payment of contractual damages would necessarily implicate the state fisc. We add this comment. The University cannot create its own eleventh amendment immunity by structuring its resources so as to pay all breach of contract damages out of state funds. Thus, the question on remand is not whether the University chooses to pay contract damages out of state funds, but whether a judgment against the University can be paid from non-state funds under the University’s discretionary control. See Kovats v. Rutgers, The State Univ., 822 F.2d 1303, 1309 (3d Cir.1987). III. CONCLUSION Based on the foregoing discussion, we reverse and remand for findings on the jurisdictional question of eleventh amendment immunity, and any further proceedings as may be required in this matter. . We use the names \"Curators” and \"University” interchangeably in this opinion, but add the following clarification. Sherman brought this action against the University, and properly styled his suit \"Sherman v. Curators of the University of Missouri” in accordance with Missouri law titling the University, as a public corporation, \"Curators of the University of Missouri”. Mo. Rev.Stat. § 172.020. Importantly, Sherman is not suing the Curators as individuals. Thus we need not pursue the distinction under the eleventh amendment between suits against government representatives acting in their official capacity as opposed to their personal capacity. Cf. Dube v. State Univ. of New York, 900 F.2d 587, 595 (2d Cir.1990) (eleventh amendment immunizes state officials acting in official capacity except for suits seeking to enjoin unconstitutional conduct; amendment provides no immunity for state official’s action in personal capacity), cert. denied, — U.S. -, 111 S.Ct. 2814, 115 L.Ed.2d 986 (1991). . Sherman alleged jurisdiction under the diversity statute, 28 U.S.C. § 1332. The University does not dispute that Sherman meets the amount in controversy and diverse residency requirements. We" }, { "docid": "22421133", "title": "", "text": "233 (3d Cir.2005), we held that “we can no longer ascribe primacy to the first factor,” concluding that it was relegated “to the status of one factor coequal with others in the immunity analysis.” Id. at 239-40. Accordingly, each of the factors must be considered equally in this case in assessing whether the University of Iowa is an arm of the state for Eleventh Amendment purposes. Whether a public university is entitled to Eleventh Amendment immunity is a fact-intensive review that calls for individualized determinations. Although we have held in the past that the Pennsylvania System of Higher Education was entitled to Eleventh Amendment immunity, Skehan v. State System of Higher Educ., 815 F.2d 244 (3d Cir.1987), we have also held that Rutgers, the State University of New Jersey, was not. Kovats v. Rutgers, The State Univ., 822 F.2d 1303, 1312 (3d Cir.1987). With this in mind, we proceed to examine each of the Fitchik factors with respect to the particular relationship between the State of Iowa and the University of Iowa. 1. The State of Iowa is not obligated to pay a judgment against the University The funding prong of Fitchik requires us to determine whether the payment of any judgment against the University of Iowa would come from the public treasury of the State of Iowa, i.e., whether the State is legally liable to pay the judgment. See Regents of the Univ. of Ca. v. Doe, 519 U.S. at 431, 117 S.Ct. 900. In making this determination, we “consider as a critical factor whether any judgment rendered against the entity would ultimately come out of state funds.” Edelman v. Jordan, 415 U.S. 651, 668, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974). The District Court determined that the first factor weighed against affording the University immunity because: (1) the State of Iowa was not the predominant source of the funds for the University, as only 21 % of the University’s funding came from the State; (2) the State did not proclaim itself legally obligated to assume responsibility for the University; and (3) the University maintained its own funding sources" }, { "docid": "8405376", "title": "", "text": "Eleventh Circuit succinctly noted, “[i]n the context of Eleventh Amendment immunity, we have held that state universities are ‘agencies or instru-mentalities’ of the state, and thus are immune from suit in federal court.” Univ. of S. Ala., 168 F.3d at 412. See also Watson v. Univ. of Utah Med. Ctr., 75 F.3d 569, 575 (10th Cir.1996) (“Our cases have consistently found state universities are arms of the state.”). In fact, research reveals only two circuit court opinions concluding that a particular state university was not an arm of the state. See A.W. Chesterton, 2 F.3d at 1211, Kovats v. Rutgers, 822 F.2d 1303, 1312 (3d Cir.1987). We, too, have previously treated several public universities as arms of the state. See Litman v. George Mason Univ., 186 F.3d 544, 550 (4th Cir.1999); Huang v. Bd. of Governors of the Univ. of N.C., 902 F.2d 1134, 1139 (4th Cir.1990); Richard Anderson Photography v. Brown, 852 F.2d 114, 122 (4th Cir.1988). Moreover, prior to this litigation, two district courts in Maryland had found that the University System of Maryland was an arm of the State of Maryland. See Palotai v. Univ. of Md., 959 F.Supp. 714, 716 (D.Md.1997); Bickley v. Univ. of Md., 527 F.Supp. 174, 181 (D.Md.1981). “Despite this overwhelming precedent, “each state university must be evaluated in light of its unique characteristics.” A.W. Chesterton, 2 F.3d at 1204. Accordingly, we will conduct our own inquiry into whether the University is an alter ego of Maryland. First, and most importantly, the State of Maryland would directly benefit from any recovery by the University in this case. Quite simply, by statute all income generated by the University is deposited into the state treasury or as directed by the state treasurer and all property of the University is property of the state. See Md.Code Ann., Educ. § 12-105. It is true that, if the University takes in revenue beyond that expected for a fiscal year, that money does not automatically revert to the general state treasury at the close of the year. That excess revenue, however, must be reported to the Comptroller and is" }, { "docid": "1282904", "title": "", "text": "nor Hemphill, however, analyzed the University’s eligibility for eleventh amendment immunity in accordance with the requirements of Greenwood. Hoferek, decided before Greenwood, contains no factual analysis of the University’s autonomy or ability to pay judgments out of non-state funds. Hoferek, 604 F.Supp. at 940 (“Putting aside the semantics and nuances of University funding, the Curators of the University of Missouri presumptively represent the State of Missouri”) (emphasis added). Hemphill, decided after Greenwood, comes closer to following our directives, but also falls short of the mark. In Hemphill, the district court stated: “Based upon the Curators’ limited autonomy and the source of university funding, this Court concludes that the Board of Curators is entitled to immunity from suits for money damages under the Eleventh Amendment.” Hemphill, 661 F.Supp. at 1195. Our review of Hemphill, however, reveals that while the district court conducted some independent statutory analysis, it failed to make any factual findings on the critical issues of the University’s level of autonomy and sources of judgment funding. Moreover, the Hemphill decision relied expressly on Hoferek. These cases do not resolve the question. Accordingly, we remand this case for factual findings in light of this opinion and Greenwood. If Sherman’s unrebutted factual allegations are true — for example, that only one-third of the University’s operating budget comes from state appropriations — the University should explain why payment of contractual damages would necessarily implicate the state fisc. We add this comment. The University cannot create its own eleventh amendment immunity by structuring its resources so as to pay all breach of contract damages out of state funds. Thus, the question on remand is not whether the University chooses to pay contract damages out of state funds, but whether a judgment against the University can be paid from non-state funds under the University’s discretionary control. See Kovats v. Rutgers, The State Univ., 822 F.2d 1303, 1309 (3d Cir.1987). III. CONCLUSION Based on the foregoing discussion, we reverse and remand for findings on the jurisdictional question of eleventh amendment immunity, and any further proceedings as may be required in this matter. . We use" }, { "docid": "10486697", "title": "", "text": "Fitchik v. New Jersey Transit Rail Operations, 873 F.2d 655, 659 (3d Cir.1989), grouped these factors into three categories. The factors grouped according to their category are (1) Whether the money that would pay the judgment would come from the state (this includes three of the Urbano factors-whether payment will come from the state’s treasury, whether the agency has the money to satisfy the judgment, and whether the sovereign has immunized itself from responsibility for the agency’s debts); (2) The status of the agency under state law (this includes four factors-how state law treats the agency generally, whether the entity is separately incorporated, whether the agency can sue or be sued in its own right, and whether it is immune from state taxation); and (3) What degree of autonomy the agency has. Courts in other Circuits have utilized similar tests to determine whether a Court should grant Eleventh Amendment immunity to an agency. See Vaughn v. Regents of University of California, 504 F.Supp. 1349 (E.D.Ca.1981); Selman v. Harvard Medical School, 494 F.Supp. 603 (S.D.N.Y.), aff'd, 636 F.2d 1204 (2d Cir.1980). Under these tests,, the Regents qualifies as an alter ego of California, and is entitled to Eleventh Amendment protection. In Kovats, the Third Circuit determined that Rutgers was not an arm of the state immune from suit: In doing so the Kovats court examined the factors announced in Urbano. First, the Court considered whether the funds that would pay a judgment would come from the state. The court noted that Rutgers “has four distinct sources of income: auxiliary income, derived from Rutgers’ auxiliary services and restricted to use in funding those services which include dining services, room rentals and intercollegiate athletic programs; restricted income from moneys received from private or government groups and limited to use in the specific program generating the funds; general university income from tuition, fees, and investments; and state appropriations.” Kovats 822 F.2d at 1308. The court further stated that general university income and state appropriations are commingled in a separate account. Additionally, the court found that Rutgers held title to land and buildings worth more" }, { "docid": "13200725", "title": "", "text": "over that claim is barred by the Eleventh Amendment.” Pennhurst State School & Hosp. v. Halderman, 465 U.S. 89, 121, 104 S.Ct. 900, 919, 79 L.Ed.2d 67 (1983). The court earlier ordered the parties to brief the issue of the applicability of the Eleventh Amendment to plaintiff’s claims. The briefs have been filed and supplemented, and oral arguments have been heard. Discussion Before examining plaintiffs claims individually, the court must first decide whether defendants Iowa State Board of Regents and I.S.U. share in the State of Iowa’s Eleventh Amendment immunity. The overwhelming majority of courts that have considered the question of whether state universities share in their respective state’s Eleventh Amendment immunity have found that they do. See Sherman v. Curators of Univ. of Mo., 16 F.3d 860, 863 n. 3 (8th Cir.1994) (citing cases). The court must examine the particular circumstances of each entity, however, to determine whether the suit is in reality against an “arm or alter ego of the state.” Greenwood v. Ross, 778 F.2d 448, 453 (8th Cir.1985); Sherman, 16 F.3d at 863. “ ‘Courts typically look at the degree of local autonomy and control and most importantly whether the funds to pay any award will be derived from the state treasury.’” Sher man, 16 F.3d at 863 (quoting Greenwood, 778 F.2d at 453). The Sherman court approved of the nine factors identified in Kovats v. Rutgers, The State Univ., 822 F.2d 1303, 1309 (3d Cir.1987) for use in evaluating an entity’s status under the Eleventh Amendment: (1) local law and decisions defining the status and nature of the agency involved in its relation to the sovereign; (2) most importantly, whether the payment of the judgment will have to be made out of the state treasury; (3) whether the agency has the funds or the power to satisfy the judgment; (4) whether the agency is performing a governmental or proprietary function; (5) whether it has been separately incorporated; (6) the degree of autonomy over its operations; (7) whether it has the power to sue and be sued and to enter into contracts; (8) whether its property" }, { "docid": "13200726", "title": "", "text": "at 863. “ ‘Courts typically look at the degree of local autonomy and control and most importantly whether the funds to pay any award will be derived from the state treasury.’” Sher man, 16 F.3d at 863 (quoting Greenwood, 778 F.2d at 453). The Sherman court approved of the nine factors identified in Kovats v. Rutgers, The State Univ., 822 F.2d 1303, 1309 (3d Cir.1987) for use in evaluating an entity’s status under the Eleventh Amendment: (1) local law and decisions defining the status and nature of the agency involved in its relation to the sovereign; (2) most importantly, whether the payment of the judgment will have to be made out of the state treasury; (3) whether the agency has the funds or the power to satisfy the judgment; (4) whether the agency is performing a governmental or proprietary function; (5) whether it has been separately incorporated; (6) the degree of autonomy over its operations; (7) whether it has the power to sue and be sued and to enter into contracts; (8) whether its property is immune from state taxation; and (9) whether the sovereign has immunized itself from responsibility for the agency’s operations. Sherman, 16 F.3d at 865 n. 6. Availability of Non-state Funds Plaintiff relies heavily on the fact that less than forty percent of I.S.U.’s annual operating budget originates directly from state appropriations. According to plaintiff, these budget figures demonstrate that I.S.U. has ample non-state funds with which to pay any judgment in this case. The fact that I.S.U. generates a substantial amount of income from such things as athletic events, bookstores, and residence halls, and receives money from grants and donations, however, is not dispositive. All state-supported uni-versifies generate income from similar sources and yet, in the vast majority of reported appellate decisions, they have been found to share in their respective, state’s Eleventh Amendment immunity. A similar argument was made in Kashani v. Purdue Univ., 813 F.2d 843 (7th Cir.1987). For the 1982-83 academic year, Purdue University received 36% of its income from state appropriations. After reviewing the budgeting scheme established under Indiana law, and" }, { "docid": "22421171", "title": "", "text": "financial liability.\" 519 U.S. 425, 431, 117 S.Ct. 900, 137 L.Ed.2d 55 (1997). The relevant inquiry is \"the entity's potential legal liability, rather than its ability or inability to require a third party to reimburse it, or to discharge the liability in the first instance.” Id. See also Fed. Mar. Comm’n v. S.C. State Ports Auth., 535 U.S. 743, 765, 122 S.Ct 1864, 152 L.Ed.2d 962 (2002) (“While state sovereign immunity serves the important function of shielding state treasuries ... the doctrine's central purpose is to accord the States the respect owed them as joint sovereigns.”). .The party asserting that it is entitled to sovereign immunity has the burden of production and persuasion. Christy v. Pa. Turnpike Comm’n, 54 F.3d 1140, 1144 (3d Cir.1995). . Our focus can be distinguished from Brine v. Univ. of Iowa, 90 F.3d 271, 275 (8th Cir.1996) (holding University of Iowa entitled to immunity) and Van Pilsum v. Iowa State Univ. of Sci. and Tech., 863 F.Supp. 935 (S.D.Iowa 1994) (holding Iowa State entitled to immunity), in which the courts considered the effect of a judgment on the state treasury, including whether it would cause the State to increase expenditures. As we follow a different approach, those cases are inapposite with respect to the funding prong. . Article IX, Section 11 of the Iowa Constitution states that “The State University shall be established at one place without branches at any other place, and the University fund shall be applied to that Institution and no else.” Iowa Const. Art. IX, § 11. . By contrast, in Kovats, the New Jersey governor had the power to appoint some of the board members to Rutgers, and there were only two limitations on the board’s operation of University: the board had to comply with (1) state budget appropriations; and (2) with state laws and regulations. Kovats, 822 F.2d at 1312. . The Court has also sustained other challenges to overly broad and disproportional legislation that went beyond the scope of § 5. City of Boerne v. Flores, 521 U.S. 507, 532, 117 S.Ct. 2157, 138 L.Ed.2d 624 (1997) (finding" }, { "docid": "23029681", "title": "", "text": "(id. at 417) that the Authority was not autonomous because the governors appointed the Authority’s commissioners and because the governors and legislatures retained substantial power over Authority actions. We also observed (id. at 418) that the Authority was exempt from state taxation. Although the Authority possessed the power to sue and be sued, this was insufficient to persuade us that the Authority was not an arm of the state. In Kovats v. Rutgers, the State Univ., 822 F.2d 1303 (3d Cir.1987), we found that Rutgers was not an alter ego of the state. Although the university was, in part, state-created and received “a large degree of state funding,” we noted (id. at 1312) that it was “independent” and “directed] its own actions.” Perhaps most importantly, we stated (id. at 1312) that Rutgers was “responsible on its own for judgments resulting from [its] actions.” We wrote (id. at 1309): “Rutgers has substantial amounts of non-state funds in both commingled and segregated accounts out of which a judgment can be paid.... Rutgers retains sole discretionary control over both its commingled and segregated accounts, subject only to audit by the state.... Thus, a judgment against Rutgers can be paid from non-state funds under Rutgers’ discretionary control.” We noted (id. at 1309) that the state might choose to increase funding of the university if the university paid a judgment that reduced the non-state funds available for its educational activities. But we distinguished Rutgers from the Port Authority since the state had no statutory obligation to provide funding to Rutgers under that circumstance. We wrote (id. at 1309): “Any increase in Rutgers’ state appropriations as a result of a judgment against Rutgers will be entirely the result of discretionary action by the state.” In Fitchik, 873 F.2d at 659 (footnote omitted), we condensed the Urbano factors into three larger questions: 1) Whether the money that would pay the judgment would come from the state (this includes three of the Urbano factors — whether payment will come from the state treasury, whether the agency has the money to satisfy the judgment, and whether the sovereign has" }, { "docid": "1550943", "title": "", "text": "F.Supp. at 1354 (holding that University of California is arm of the state based, in part, on fact that “although the Regents is vested with legal title to the University’s property ... all the University’s property is property of the state” under the California constitution and noting that “[t]he majority of federal courts which have considered the ‘alter-ego’ relationship of a state university to its state have concluded that a suit against the university is a suit against the state for purposes of the Eleventh Amendment”); Hutsell v. Sayre, 5 F.3d 996, 1002 (6th Cir.1993) (holding that University of Kentucky was entitled to Eleventh Amendment immunity based, in part, on fact that all funds collected by the University were deemed state funds under Kentucky statute). The Court is not persuaded by Fujitsu’s assertion that UI may not be an arm of the state because it has authority under Illinois law to acquire, hold, sell, lease and convey real and personal property without state approval. See Fujitsu Surreply at 2 (citing to 110 ILCS §§ 305/1, 305/7d, 420/l(f)). As the court in Barrett made clear, UI’s organizational independence from the State of Illinois as a public corporation does not preclude it from being an alter-ego of the state for the purposes of ownership. The Court also rejects Fujitsu’s assertion that UI has not established that it performs any essential governmental function — the second factor in the five-factor test. See Jackson v. Hayakawa, 682 F.2d at 1349. The cases that have addressed the issue have held, almost uniformly, that the provision of higher education is an essential governmental function for the purposes of Eleventh Amendment immunity analysis. See, e.g., Hutsell, 5 F.3d at 1002 (holding that “higher education has long been recognized as a governmental function”); Kovats v. Rutgers, 822 F.2d 1303, 1310 (3d Cir.1987) (holding that Rutgers University was not an arm of the state but recognizing that “providing edu cation has long be recognized as a function of state government”). Similarly, this Court finds that in providing higher education, UI performs an essential governmental function. Fujitsu is correct that" }, { "docid": "10486698", "title": "", "text": "636 F.2d 1204 (2d Cir.1980). Under these tests,, the Regents qualifies as an alter ego of California, and is entitled to Eleventh Amendment protection. In Kovats, the Third Circuit determined that Rutgers was not an arm of the state immune from suit: In doing so the Kovats court examined the factors announced in Urbano. First, the Court considered whether the funds that would pay a judgment would come from the state. The court noted that Rutgers “has four distinct sources of income: auxiliary income, derived from Rutgers’ auxiliary services and restricted to use in funding those services which include dining services, room rentals and intercollegiate athletic programs; restricted income from moneys received from private or government groups and limited to use in the specific program generating the funds; general university income from tuition, fees, and investments; and state appropriations.” Kovats 822 F.2d at 1308. The court further stated that general university income and state appropriations are commingled in a separate account. Additionally, the court found that Rutgers held title to land and buildings worth more than $40 million. Moreover, Rutgers had segregated accounts of interest derived from its assets. Between 1983 and 1985, it used $44 million and $48 million of this account as a pledge to bondholders. Importantly, the court established that Rutgers retained complete control over both the commingled and segregated accounts, \"subject only to audit by the state.” At least equally significantly, the court recognized that New Jersey had insulated itself twice from any of Rutgers’ liabilities. Accordingly, this factor weighed against immunity. The court next considered Rutgers’ status under New Jersey law. Here the court found factors weighing both in favor of immunity and against immunity. Initially, the court found that the “statute under which Rutgers is incorporated and case law state that Rutgers is an instrumentality of the State.” Moreover Rutgers provides education, an essential state function. Id. at 1310. Contrastingly, the Court found that the state did not consider Rutgers part of the state for New Jersey Contractual Liability Act because Rutgers can sue or be sued. Moreover, Rutgers was not subjected to civil" }, { "docid": "4055188", "title": "", "text": "arguing that granting immunity based on discretionary funding would be contrary to the generally accepted denial of immunity to municipalities, including those which receive funding from the state. See Monell v. Department of Social Services of the City of New York, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). Because funding alone is not dis- positive of the immunity issue, those arguments miss the point. As this court stated in Blake, “The issue of whether payment is from the state treasury or from PSERB funds, although important, is not dispositive. It is only meaningful in light of the agency's other attributes.” 612 F.2d at 724. If the state structures an entity in such a way that the other relevant criteria indicate it to be an arm of the state, then immunity may be retained even where damage awards are funded by the state at the state’s discretion. c. Status Under State Law On the one hand, as the district court in Miller stated, “the University is an instrumentality of the state. Both the statute under which Rutgers is incorporated and case law expressly so state.” 619 F.Supp. at 1389. The 1956 statute establishing Rutgers as the state university created Rutgers as a corporation which “is the instrumentality of the state for the purpose of operating the state university.” NJSA 18A:65-2. New Jersey court decisions have treated Rutgers as the “alter ego of the State” and as a “full-fledged state agency.” Rutgers, The State University v. Piluso, 60 N.J. 142, 158-59, 286 A.2d 697, 705 (1972) (holding Rutgers immune from local zoning ordinances); Trustees of Rutgers College v. Richman, 41 N.J.Super. 259, 298, 125 A.2d 10, 31 (Ch.Div.1956). In addition, Rutgers’ primary purpose is the provision of higher education. NJSA 18A:65-2. We have stated that “[providing education has long been recognized as a function of state government.” Skehan, 815 F.2d at 248. See also Miller, 619 F.Supp. at 1391; Handsome v. Rutgers, 445 F.Supp. 1362, 1367 n. 7 (D.N.J.1978). Rutgers is therefore distinguishable from state related entities which perform only proprietary functions. On the other hand, Rutgers is not" }, { "docid": "22421132", "title": "", "text": "(quoting Lake Country Estates, Inc. v. Tahoe Regional Planning Agency, 440 U.S. 391, 401, 99 S.Ct. 1171, 59 L.Ed.2d 401 (1979)). We have adopted a three-part test to apply in order to determine whether an entity is an arm of the state for Eleventh Amendment purposes. That test examines the following three elements: (1) whether the payment of the judgment would come from the state; (2) what status the entity has under state law; and (3) what degree of autonomy the entity has. Febres v. Camden Bd. of Educ., 445 F.3d 227, 229 (3d Cir.2006) (citing Fitchik, 873 F.2d at 659). In the past, we have afforded some prominence to the first factor, the so-called “funding prong,” i.e., whether payment comes from the state treasury. Fitchik, 873 F.2d at 659 (“Although no single Urbano factor is dispositive, the most important is whether any judgment would be paid from the state treasury.”) (citing Urbano v. Bd. of Managers, 415 F.2d 247 (3d Cir.1969)). More recently, however, in Benn v. First Judicial Dist. of Pa., 426 F.3d 233 (3d Cir.2005), we held that “we can no longer ascribe primacy to the first factor,” concluding that it was relegated “to the status of one factor coequal with others in the immunity analysis.” Id. at 239-40. Accordingly, each of the factors must be considered equally in this case in assessing whether the University of Iowa is an arm of the state for Eleventh Amendment purposes. Whether a public university is entitled to Eleventh Amendment immunity is a fact-intensive review that calls for individualized determinations. Although we have held in the past that the Pennsylvania System of Higher Education was entitled to Eleventh Amendment immunity, Skehan v. State System of Higher Educ., 815 F.2d 244 (3d Cir.1987), we have also held that Rutgers, the State University of New Jersey, was not. Kovats v. Rutgers, The State Univ., 822 F.2d 1303, 1312 (3d Cir.1987). With this in mind, we proceed to examine each of the Fitchik factors with respect to the particular relationship between the State of Iowa and the University of Iowa. 1. The State" }, { "docid": "14452879", "title": "", "text": "— most importantly — funds the agency’s general operations primarily from the state treasury. We agree with the district court that NACTC is entitled to Eleventh Amendment immunity. The judgment of the district court is affirmed. . The HONORABLE H. FRANKLIN WATERS, Chief Judge, United States District Court for the Western District of Arkansas. . For cases involving Eighth Circuit institutions, see Dover Elevator Co. v. Arkansas State Univ., 64 F.3d 442, 446-47 (8th Cir.1995); Richmond v. Board of Regents of Univ. of Minn., 957 F.2d 595, 599 (8th Cir.1992); Sherman v. Curators of Univ. of Mo., 871 F.Supp. 344, 345 (W.D.Mo.1994); Van Pilsum v. Iowa State Univ. of Science and Tech., 863 F.Supp. 935, 937 (S.D.Iowa 1994); Assaad-Faltas v. University of Ark. for Medical Sciences, 708 F.Supp. 1026, 1030 (E.D.Ark.1989), aff'd, 902 F.2d 1572 (8th Cir.), cert. denied, 498 U.S. 905, 111 S.Ct. 271, 112 L.Ed.2d 227 (1990). A fact specific exception to the general rule is Kovats v. Rutgers, the State Univ., 822 F.2d 1303, 1307 (3d Cir.1987). . See, e.g., Mitchell v. Los Angeles Community College Dist., 861 F.2d 198, 201-202 (9th Cir.1988), cert. denied, 490 U.S. 1081, 109 S.Ct. 2102, 104 L.Ed.2d 663 (1989); Goss v. San Jacinto Junior College, 588 F.2d 96, 98-99 (5th Cir.), modified on other grounds, 595 F.2d 1119 (5th Cir.1979); Korgich v. Regents of New Mexico Sch. of Mines, 582 F.2d 549, 551 (10th Cir.1978); Durrani v. Valdosta Technical Inst., 810 F.Supp. 301, 305 (M.D.Ga.1992), aff'd, 3 F.3d 443 (11th Cir.1993); Moche v. City Univ. of New York, 781 F.Supp. 160, 165-66 (E.D.N.Y.1992), aff'd, 999 F.2d 538 (2nd Cir.1993); Thomquest v. King, 626 F.Supp. 486, 488-89 (M.D.Fla.1985). . Essentially, expenditures for land, buildings, and furniture and equipment. See § 6-61-501(2). . \"Operating expenses” include \"funds devoted to or required for the regular or ordinary expense of the college, including administrative, maintenance, and salary expenses, but excluding capital outlay expenses, student activity expenses, and expense for intercollegiate athletics.” § 6-61-501(3) (Supp.1993); see also § 6-53-103(9) (Supp.1993). . Arkansas has also characterized NACTC as a “state agency” in other governmental contexts. For example," }, { "docid": "1282908", "title": "", "text": "489 U.S. 1033, 109 S.Ct. 1171, 103 L.Ed.2d 229 (1989); Estate of Ritter by Ritter v. University of Michigan, 851 F.2d 846 (6th Cir.1988); Kashani v. Purdue Univ., 813 F.2d 843 (7th Cir.), cert. denied, 484 U.S. 846, 108 S.Ct. 141, 98 L.Ed.2d 97 (1987); Hall v. Medical College of Ohio at Toledo, 742 F.2d 299 (6th Cir.1984), cert. denied, 469 U.S. 1113, 105 S.Ct. 796, 83 L.Ed.2d 789 (1985); United Carolina Bank v. Board of Regents of Stephen F. Austin State Univ., 665 F.2d 553 (5th Cir. Unit A 1982) (Stephen F. Austin State University in Texas); Rutledge v. Arizona Bd. of Regents, 660 F.2d 1345 (9th Cir. 1981) (Arizona State University), aff'd sub nom. Kush v. Rutledge, 460 U.S. 719, 103 S.Ct. 1483, 75 L.Ed.2d 413 (1983); Jagnandan v. Giles, 538 F.2d 1166 (5th Cir.1976) (Mississippi State University), cert. denied, 432 U.S. 910, 97 S.Ct. 2959, 53 L.Ed.2d 1083 (1977); Prebble v. Brodrick, 535 F.2d 605 (10th Cir.1976) (University of Wyoming); Long v. Richardson, 525 F.2d 74 (6th Cir.1975) (Memphis State University); Brennan v. University of Kansas, 451 F.2d 1287 (10th Cir.1971); Walstad v. University of Minnesota Hosps., 442 F.2d 634 (8th Cir.1971); Contra Goss v. San Jacinto Jr. College, 588 F.2d 96 (5th Cir.), modified, 595 F.2d 1119 (1979). In our review we have found only one appellate court decision holding that a state university does not share in its state’s eleventh amendment immunity. Kovats v. Rutgers, the State Univ., 822 F.2d 1303 (3d Cir.1987) (Rutgers not immune). In addition, one court expressed doubt about the matter. Soni v. Board of Trustees of Univ. of Tennessee, 513 F.2d 347 (6th Cir.1975) (court unclear about University of Tennessee's eligibility for immunity, but concluded that if such immunity existed it had been waived by the state), cert. denied, 426 U.S. 919, 96 S.Ct. 2623, 49 L.Ed.2d 372 (1976). . As stated earlier, Sherman's suggestions in opposition to the Curators' Motion to Dismiss presented numerous factual allegations highlighting the degree of funding autonomy enjoyed by the University. For example, Sherman alleged that the State of Missouri provides only one-third of" } ]

[ { "docid": "22814964", "title": "", "text": "any suit or proceeding against a collector or other officer of the revenue for any act done by him, or for the recovery of any money exacted by or paid to him and by him paid into the Treasury, in the performance of his official duty.” A recovery for acts done by the defendant is the only one contemplated by the words “ by him.” The same is true of Rev. Stats., § 771, requiring District Attorneys to defend such suits. No different conclusion results from the Act of February 8, 1899, c. 121, 30 Stat. 822. That is a general provision that a suit by or against an “ officer of the United States ill his official capacity ” should not abate by reason of his death, or the expiration of his term of office, &c., but that the Court upon motion within twelve months showing the necessity for the survival of the suit to obtain a settlement of the question involved, may allow the same to be maintained by or against his successor in office. Whether this would apply to a suit of the present kind is at least doubtful. Roberts v. Lowe, 236 Fed. 604, 605. In Patton v. Brady, 184 U. S. 608, a suit against a collector begun after the passage of this statute, it was held that it could be revived against his executrix, which shows again that the action is personal; as also does the fact that the collector may be held liable for interest. Erskine v. Van Arsdale, 15 Wall. 75. Redfield v. Bartels, 139 U. S. 694. But in any event the statute supposes a suit already begun against the officer in his lifetime. We need not consider the remedies against the United States. United States v. Emery, Bird, Thayer Realty Co., 237 U. S. 28; Sage v. United States, 250 U. S. 33. It appears to us plain without further discussion that both questions must be answered: No. Answers to Questions 1 and 2- No. Mr. Justice McKenna and Mr. Justice Clarke dissent." } ]

[ { "docid": "4378811", "title": "", "text": "capacity but as the agent of the United States. Second Nat’l Bank of Saginaw v. Woodworth, D.C.S.D.Mich., 54 F.2d 672, affirmed 6 Cir., 66 F.2d 170. While he was the formal party defendant, the real party in interest was the United States, which, by its intervention in the suit, likewise became a formal party thereto. The interests of the Collector and the United States were, however, identical. The tax, if collected, would be remitted to the Treasury of the United States. The appeal could have been prosecuted either by Glenn or the government. While it has been held, Sage v. United States, 250 U.S. 33, 39 S.Ct. 415, 63 L.Ed. 828, that a suit against the Collector for the recovery of an illegally held tax is not a suit against the United States, in respect to the application of the doctrine of res judicata, yet it has also been held that a judgment for or against the United States is binding upon the Collector who is the agent or trustee for the government. Second Nat’l Bank of Saginaw v. Woodworth, supra. However, it has been with great clarity pointed out that a suit against a Collector is today “an anomalous relic of bygone modes of thought” when he is engaged merely in the fulfillment of a ministerial duty. Moore Ice Cream Co. v. Rose, 289 U.S. 373, 382, 53 S.Ct. 620, 623, 77 L.Ed. 1265. There Mr. Justice Cardozo observed, “There may have been utility in such procedural devices in days when the government was not suable as freely as now (citing cases). They have little utility today, at all events where the complaint against the officer shows upon its face that in the process of collecting he was acting in the line of duty, * * * In such circumstances his presence as a defendant is merely a remedial expedient for bringing the government into court.” Whether the present appeal could be by us entertained, in the name of the United States, in view of this identity of interest between the government and the Collector, we need not now" }, { "docid": "15972142", "title": "", "text": "1121; Pullman Co. v. Croom, 1913, 231 U.S. 571, 34 S.Ct. 182, 58 L.Ed. 375, and Shaffer v. Howard, 1919, 249 U.S. 200, 39 S.Ct. 255, 63 L.Ed. 559, abatement was or dered as in the Boutwell case and for the same reason, since the Act of 1899, modifying abatement, did not affect cases in state courts. In Murphy v. Utter, 1902, 186 U.S. 95, 22 S.Ct. 776, 46 L.Ed. 1070, and Marshall v. Dye, 1913, 231 U.S. 250, 34 S.Ct. 92, 58 L.Ed. 206, the doctrine of Board of Commissioners of Leavenworth County v. Sellew, 1878, 99 U.S. 624, 25 L.Ed. 333, was followed and the causes were held not to have abated because the actions were against boards which act as continuing entities. In 1925 Congress again entered the field of abatement by enacting § 11 of the Judiciary Act of February 13, 1925, Title 28 U.S.C.A. former § 780, 43 Stat. 936, 941. By this legislation, the abatement occurred upon the expiration of six months after separation from office, but the court “of first instance or an appellate tribunal” was given power “to permit the cause to be continued and maintained by or against the successor in office * * * ” if it be “satisfactorily shown * * * that there is a substantial need for so continuing and maintaining the cause and obtaining an adjudication of the questions involved.” The case of U. S. ex rel. Claussen v. Curran, 1928, 276 U.S. 590, 48 S.Ct. 206, 72 L.Ed. 720, relied upon very heavily in the instant cases as requiring abatement in them, and Mathues v. U. S. ex rel. Cunningham, 1930, 282 U.S. 802, 51 S.Ct. 84, 75 L.Ed. 721 (habeas corpus proceedings), and Davis v. Preston, 1930, 280 U.S. 406, 50 S.Ct. 171, 74 L.Ed. 514, followed the statute and the cases were dismissed because the officer-defendant had left office and the successor had qualified but had not been substituted in the action within six months. The reason for abatement was the same as in Boutwell, and is entirely consistent with our conclusion that" }, { "docid": "22059782", "title": "", "text": "not absolute, it is true, but subject to a condition. 12 Stat. 741, § 12; United Stated v. Sherman, 98 U.S. 565; Philadelphia v. Collector, supra, p. 733; Smietanka v. Indiana Steel Co., supra. The condition was that a certificate be graritéd by the court either (a) that there was probable cause for the act done by the Collector or other officer, or (b) that he acted under, the directions of the Secretary of the Treasury or other proper officer of the Government. 12 Stat. 741, § 12; Act of March 3, 1863. In that event no execution was to issue upon the judgment, but the amount of the recovery was to be paid out of the Treasury. The pledge of indemnity was carried forward into the Revised Statutes with only verbal changes (R.S. 989), and stands upon the books today. 28 U.S.C., § 842. The effect of the certificate, when given, is to convert the suit against the Collector into a suit against the Government. United States v. Sherman, supra. This Collector did act under the directions of the Secretary of the Treasury, or other proper officer of the Government in the collection of the tax. The complaint shows upon its.face that the tax had been duly assessed by the Commissioner of Internal Revenue. ■ In that situation the Collector was under a ministerial duty to proceed to collect it. R.S. § 3182; 26 U.S.C., § 102; Erskine v. Hohnbach, 14 Wall. 613. There was nothing left to his discretion. ' Other duties less definitely prescribed may leave a margin for judgment and for individual initiative. Cf. Agnew v. Haymes, 141 Fed. 631. There was no such margin here. His duty being imperative, he is protected by the command of his superior from liability for trespass (Erskine v. Hohnbach, supra; Haffin v. Mason, 15 Wall. 671, 675; Harding v. Woodcock, 137 U.S. 43, 46), and is entitled as of right to a certificate converting the suit against him into one against the Government. United States v. Sherman, supra. His position could be no better if there had been protest" }, { "docid": "14732140", "title": "", "text": "trust, and no higher obligation rested upon him than to obey the instructions of his superior officers. “The basis of an action against the collector is his receipt of the tax, and if he has not received it we do not see how he can be called on to pay it back; and the fact that Lederer was the channel by which the Commissioner-transmitted the refusal to refund did not impose liability. Lederer was liable, if at all, for the tax of 1912, for this had come into his own hands; but no statute made him liable for money that was collected by his predecessor, but had never been sued for.” Philadelphia, H. & P. R. Co. v. Lederer (C. C. A.) 242 F. 492, 494. “This action is not based upon anything that the collector of internal revenue, did, or failed to do, while in office, but is based solely upon an act of Congress for the allowance and payment of interest on sums wrongfully collected by collectors of internal revenue. This claim arising specifically under this act of Congress, we are of the opinion that the action is not properly brought against the former collector, and could be maintained only against the United States, which, by act of Congress, has provided for its payment. The act of Congress did not place upon the collector of internal revenue the duty of paying interest on sums wrongfully collected, but provided for its payment by the United States. We conclude, therefore, that this action may not be maintained against the collector in person.” Penn Smokeless Coal Co. v. Lewellyn (D. C.) 26 F.(2d) 743, 744. See, also, Smietanka v. Indiana Steel Co. 257 U. S. 1, 42 S. Ct. 1, 66 L. Ed. 99; Union Trust Co. of San Francisco v. Wardell, 258 U. S. 537, 42 S. Ct. 393, 66 L. Ed. 753. “Where income tax was paid without protest, and no demand was made for return prior to expiration of collector’s term of office, remedy in 'case tax not legally due had been paid was by action against the" }, { "docid": "4510086", "title": "", "text": "said: “To show that the action still is personal, as laid down in Sage v. United States, 250 U.S. 33, 37, 39 S.Ct. 415, 63 L.Ed. 828, it would seem to be enough to observe that when the suit is begun it cannot be known with certainty that the judgment will be paid out of the Treasury. That depends upon the certificate of the Court in the case. It is not to be supposed that a stranger to an unwarranted transaction is made answerable for it; yet that might be the result of the suit if it could be brought against a successor to the collectorship. A personal execution is denied only when the certificate is given.” In Graham & Foster v. Goodcell, 282 U.S. 409, 430, 51 S.Ct. 186, 194, 75 L.Ed. 415, 1931, the court, in passing, rejected an argument that the United States, without substituting another remedy, could enact a valid statute depriving citizens of the right to recover from a Collector monies unlawfully collected by him, saying: “Such an action is personal and not against the United States”, citing the Sage and Smietanka cases. In Bankers Pocahontas Coal Co. v. Burnet, 287 U.S. 308, 53 S.Ct. 150, 77 L.Ed. 325, 1932, it was held, on the authority of the Sage and Smietanka cases, supra, that issues determined in a suit against a Collector were not res judicata in a subsequent suit against the Commissioner. Congress had provided, in 1924, Revenue Act 1924, § 1014, 26 U.S.C.A. Int.Rev. Acts, page 128, that a suit against the Collector for recovery of taxes unlawfully collected might be brought, regardless of whether the tax had been paid under protest, and made that provision retroactive. In Moore Ice Cream Co. v. Rose, 289 U.S. 373, 53 S.Ct. 620, 77 L.Ed. 1265, 1933, no protest had been filed, and the tax had been paid and the Collector had remitted the funds to the Treasury before the 1924 amendment was enacted; the collector, when sued, argued that the suit was personal and that the retroactive provision of that statute infringed his individual rights" }, { "docid": "11095238", "title": "", "text": "the decision in the Sage case, the question was presented whether an action against a collector could be continued against his successor. This Court held that it could not, because the Sage case had settled that such a suit was “personal.” See Smietanka v. Indiana Steel Co., 257 U. S. 1; Union Trust Co. v. Wardell, 258 U. S. 537. In Bankers Coal Co. v. Burnet, 287 U. S. 308, a suit against a collector with respect to taxes for the years 1914-1919 had resulted in a determination that the taxpayer was entitled to a depletion allowance of five cents per ton on coal mine royalties. It was contended that this determination was res judicata of that issue in a subsequent action against the Commissioner relating to taxes for later years. The Court, again relying on the Sage case, rejected the argument in these words: “With respect to this contention it is sufficient to say that the suit in the District Court was not against the Commissioner of Internal Revenue, the respondent here, but against the Collector, judgment against whom is not res ad judicata against the Commissioner or the United States.” 287 U. S. at 311-312. The Government leans heavily upon Moore Ice Cream Co. v. Rose, 289 U. S. 373. In that case the constitutionality of § 1014 of the Revenue Act of 1924, 43 Stat. 253, 343, providing that a taxpayer may recover an unlawful federal tax even though he paid the tax without protest, was upheld as applied to a payment without protest made prior to the enactment of the provision. In reaching this conclusion, the Court noted that, under R. S. § 989, 28 U. S. C. § 842, a collector who acts under the directions of the Secretary of the Treasury, or other proper officer of the Government, “is entitled as of right to a certificate converting the suit against him into one against the Government ... A suit against a Collector who has collected a tax in the fulfillment of a ministerial duty is today an anomalous relic of bygone modes of thought." }, { "docid": "4510084", "title": "", "text": "of the revenue for * * * the recovery of any money exacted by or paid to him and by him paid into the Treasury, in the performance of his official duty, and the court certifies” either (1) “that there was probable cause for the act done by the collector or other officer, or (2) that he acted under the directions of the Secretary of the Treasury, or other proper officer of the Government, no execution shall issue against such collector or other officer, but the amount so recovered shall, upon final judgment, be provided for and paid out of the proper appropriation from the Treasury.” In United States v. Sherman, 98 U.S. 565, 25 L.Ed. 235, 1878, (as interpreted in Moore Ice Cream Co. v. Rose, supra) it was held that the effect of the filing of such a certificate is to convert the suit into one against the United States. Nevertheless, in Sage v. United States, 250 U.S. 33, 39 S.Ct. 415, 416, 63 L.Ed. 828, 1919, it was held that, in a suit against the United States for a tax refund, a judgment for part of the claim, entered in a prior suit against the Collector, raising the same issues, was not res judicata. The court said that, under the statute, “the judgment is to be paid * * * if a certificate is granted by the Court that there was probable cause for his [the Collector’s] act”. But it said that a suit against a Collector “is personal [in] its incidents”, and that \"at the time the judgment is entered the United States is a stranger”, because, only if the court, after the entry of judgment, finds that there was probable cause, will the certificate be issued. This thesis was explained in Smietanka v. Indiana Steel Co., 257 U.S. 1, 42 S.Ct. 1, 2, 66 L.Ed. 99, 1921; there the tax had been collected by Collector Fitch, but suit for recovery was brought against his successor, Smietanka; the court held that the suit must be dismissed, because not authorized by statute; in that connection the court" }, { "docid": "22059781", "title": "", "text": "pay.into the Treasury the moneys collected. Elliott v. Swartwout, supra; Smietanka v. Indiana Steel Co., 257 U.S. 1, 4. Statutes first enacted in 1839 (Act of March 3, 1839, c. 82, § 2, 5 Stat. 348) and progressively broadened (R.S., § 3210; 26 U.S.C., § 140), made it the duty of Collectors to pay the money over to the Govern-' ment, whether there had been protest or ho protest. At first this was thought to have relieved them of personal liability (Cary v. Curtis, 3 How. 236; Smietanka v. Indiana Steel Co., supra), but later acts of .Congress established a different rule, though maintaining the duty to make remittance to the Treasury. Philadelphia v. Collector, 5 Wall. 720, 731; Curtis’s Adm’x v. Fiedler, 2 Black 461, 479; Collector v. Hubbard, supra; Arnson v. Murphy, 109 U.S. 238, 241; 5 Stat. 727; 12 Stat. 434, 725, 729; 12 Stat. 741, § 12; 13 Stat. 239; 14 Stat. 329, § 8. Along with the duty there went a pledge of indemnity by the Government itself, a pledge not absolute, it is true, but subject to a condition. 12 Stat. 741, § 12; United Stated v. Sherman, 98 U.S. 565; Philadelphia v. Collector, supra, p. 733; Smietanka v. Indiana Steel Co., supra. The condition was that a certificate be graritéd by the court either (a) that there was probable cause for the act done by the Collector or other officer, or (b) that he acted under, the directions of the Secretary of the Treasury or other proper officer of the Government. 12 Stat. 741, § 12; Act of March 3, 1863. In that event no execution was to issue upon the judgment, but the amount of the recovery was to be paid out of the Treasury. The pledge of indemnity was carried forward into the Revised Statutes with only verbal changes (R.S. 989), and stands upon the books today. 28 U.S.C., § 842. The effect of the certificate, when given, is to convert the suit against the Collector into a suit against the Government. United States v. Sherman, supra. This Collector did act" }, { "docid": "17020005", "title": "", "text": "points to the fact that the former suit was between the taxpayer and the United States, whereas this suit is against the Collector of Internal Revenue in his personal capacity, and contends that since the suits are not between the same parties, the doctrine of estoppel is inapplicable, citing United States v. Nunnally Inv. Co., 316 U.S. 258, 62 S.Ct. 1064, 86 L.Ed. 1455. The Nun-nally case affirmed Sage v. United States, 250 U.S. 33, 39 S.Ct. 415, 63 L.Ed. 828, to the effect that a judgment for a refund of income taxes in a suit against the Collector is not a bar to a later suit against the United States for additional refund of taxes for the same year paid to the same collector. The cases are based upon the concept that the United States was a stranger to the suit against the collector in his personal capacity, and not being in privity with him, was not bound thereby. Applying the reasoning there conversely to our case, it is suggested that the United States is a stranger to this suit, and the taxpayer is therefore not barred from maintaining it against the collector in-his personal capacity on a different cause of action. The effect of the Nunnally case was nullified by • Subsection (d), Section 503, Revenue Act of 1942, Public Laws Chap. 619, 26 U.S.C.A. § 3772, 56 Stat. 956. See H. Rep. 2333, 77th Congress, Second Session, pp. 60-61, 172; and Senate Rep. 1631, 77th Congress, Second Session, pp. 247-248. But in any event, the rule of the Nunnally case is inapplicable in a suit against the collector, for “where a question has been adjudged as between a taxpayer and the government or its official agent, the Commissioner, the collect- or, being an official inferior in authority, and acting under them, is in such' privity with them that he is estopped by the judgment.” Tait v. Western Md. Ry. Co., supra, 289 U.S. at page 627, 53 S.Ct. at page 708, 77 L.Ed. 405. It follows, we think, by the reasoning invoked, that if the Collector would" }, { "docid": "18350908", "title": "", "text": "joining such issue. Such costs shall include only those actually incurred for witnesses and fees paid to the clerk.” Sec. 1346 deals with actions in the District Court against the United States for the recovery of internal revenue taxes alleged to have been erroneously or illegally assessed or collected. Sec. 1491 deals with actions against the United States in the Court of Claims. If the taxpayer is successful in an action against the United States to recover taxes erroneously or illegally assessed, under Sec. 2412(b) costs can be assessed against the United States to a very limited extent which would not exceed $5 in the present case. It is appellee’s contention that although Sec. 2412(b) specifically refers only to actions against the United States, it includes actions against the Collector as well as against the United States because for all practical purposes a suit against the Collector and recovery thereby of taxes illegally collected is a suit against the United States. See: Ewing v. Gardner, 341 U.S. 321, 71 S.Ct. 684, 95 L.Ed. 968. Rule 81(f) plays no part in this argument as it is limited to a construction of the Rules of Civil Procedure and has no application to the statute. The argument of the Collector is theoretically sound but has been consistently rejected by the Supreme Court. In Sage v. Unit ed States, 250 U.S. 33, 39 S.Ct. 415, 63 L.Ed. 828, the Court said that technically a judgment against a Collector is not a judgment against the United States, that such a suit is personal and its incidents, such as the nature of the defenses open and the allowance of interest, are different, and that at the time the judgment is entered, the United States is a stranger. In Smietanka v. Indiana Steel Co., 257 U.S. 1, 42 S.Ct. 1, 66 L.Ed. 99, it was held that an action against a Collector is based upon his personal liability and cannot be maintained against his successor in office. In United States v. Kales, 314 U.S. 186, 62 S.Ct. 214, 220, 86 L.Ed. 132, the Court said, “The judgment" }, { "docid": "4510085", "title": "", "text": "suit against the United States for a tax refund, a judgment for part of the claim, entered in a prior suit against the Collector, raising the same issues, was not res judicata. The court said that, under the statute, “the judgment is to be paid * * * if a certificate is granted by the Court that there was probable cause for his [the Collector’s] act”. But it said that a suit against a Collector “is personal [in] its incidents”, and that \"at the time the judgment is entered the United States is a stranger”, because, only if the court, after the entry of judgment, finds that there was probable cause, will the certificate be issued. This thesis was explained in Smietanka v. Indiana Steel Co., 257 U.S. 1, 42 S.Ct. 1, 2, 66 L.Ed. 99, 1921; there the tax had been collected by Collector Fitch, but suit for recovery was brought against his successor, Smietanka; the court held that the suit must be dismissed, because not authorized by statute; in that connection the court said: “To show that the action still is personal, as laid down in Sage v. United States, 250 U.S. 33, 37, 39 S.Ct. 415, 63 L.Ed. 828, it would seem to be enough to observe that when the suit is begun it cannot be known with certainty that the judgment will be paid out of the Treasury. That depends upon the certificate of the Court in the case. It is not to be supposed that a stranger to an unwarranted transaction is made answerable for it; yet that might be the result of the suit if it could be brought against a successor to the collectorship. A personal execution is denied only when the certificate is given.” In Graham & Foster v. Goodcell, 282 U.S. 409, 430, 51 S.Ct. 186, 194, 75 L.Ed. 415, 1931, the court, in passing, rejected an argument that the United States, without substituting another remedy, could enact a valid statute depriving citizens of the right to recover from a Collector monies unlawfully collected by him, saying: “Such an action is" }, { "docid": "15972141", "title": "", "text": "could “allow the same to be maintained by or against” the officer’s successor in office. The first case on the subject to reach the Supreme Court after the 1899 legislation, was Caledonian Coal Co. v. Baker, 1905, 196 U.S. 432, 25 S.Ct. 375, 49 L.Ed. 540, a mandamus proceeding against a United States District Judge. The judge resigned. His successor consented to be substituted, and the case proceeded to judgment. Le Crone v. McAdoo, 1920, 253 U.S. 217, 40 S.Ct. 510, 64 L.Ed. 869, was in mandamus against Secretary of the Treasury McAdoo, who resigned his office while the action was pending. A judgment had been entered in a trial court to the effect that money should issue from the United States Treasury for payment by the Secretary of State to the plaintiff. The Supreme Court ordered the writ of error dismissed since the action against McAdoo had abated, twelve months having elapsed after his resignation and no substitution having been made. In Richardson v. McChesney, 1910, 218 U.S. 487, 31 S.Ct. 43, 54 L.Ed. 1121; Pullman Co. v. Croom, 1913, 231 U.S. 571, 34 S.Ct. 182, 58 L.Ed. 375, and Shaffer v. Howard, 1919, 249 U.S. 200, 39 S.Ct. 255, 63 L.Ed. 559, abatement was or dered as in the Boutwell case and for the same reason, since the Act of 1899, modifying abatement, did not affect cases in state courts. In Murphy v. Utter, 1902, 186 U.S. 95, 22 S.Ct. 776, 46 L.Ed. 1070, and Marshall v. Dye, 1913, 231 U.S. 250, 34 S.Ct. 92, 58 L.Ed. 206, the doctrine of Board of Commissioners of Leavenworth County v. Sellew, 1878, 99 U.S. 624, 25 L.Ed. 333, was followed and the causes were held not to have abated because the actions were against boards which act as continuing entities. In 1925 Congress again entered the field of abatement by enacting § 11 of the Judiciary Act of February 13, 1925, Title 28 U.S.C.A. former § 780, 43 Stat. 936, 941. By this legislation, the abatement occurred upon the expiration of six months after separation from office, but the court" }, { "docid": "4510083", "title": "", "text": "money wrongfully and involuntarily paid under compulsion, although the Collector had paid the collected funds to the Treasury. Elliot v. Swartwout, 10 Pet. 137, 153, 155, 156, 9 L.Ed. 373, 1836; Story, J. in Cary v. Curtis, 3 How. 236, 254, 11 L.Ed. 576, 1845; Cf. Atchison, etc., R. Co. v. O’Connor, 223 U.S. 280, 287, 32 S.Ct. 216, 56 L.Ed. 436, Ann.Cas.1913C, 1050, 1912. The taxpayer’s protest was a warning not to pay to the Treasury the moneys collected. Later statutes made it the duty of the Collector to turn in the moneys to the government, regardless of the protest; there were decisions to the effect that such statutes barred suits against the collector; but subsequent decisions cleared up that doubt. Philadelphia v. The Collector, 5 Wall. 720, 731, 18 L.Ed. 614; Arnson v. Murphy, 109 U.S. 238, 241, 3 S.Ct. 184, 27 L.Ed. 920. Included in such legislation was a statute, enacted in 1863, 12 Stat. 741, § 12 , which provided that, when judgment is procured against “a collector or other officer of the revenue for * * * the recovery of any money exacted by or paid to him and by him paid into the Treasury, in the performance of his official duty, and the court certifies” either (1) “that there was probable cause for the act done by the collector or other officer, or (2) that he acted under the directions of the Secretary of the Treasury, or other proper officer of the Government, no execution shall issue against such collector or other officer, but the amount so recovered shall, upon final judgment, be provided for and paid out of the proper appropriation from the Treasury.” In United States v. Sherman, 98 U.S. 565, 25 L.Ed. 235, 1878, (as interpreted in Moore Ice Cream Co. v. Rose, supra) it was held that the effect of the filing of such a certificate is to convert the suit into one against the United States. Nevertheless, in Sage v. United States, 250 U.S. 33, 39 S.Ct. 415, 416, 63 L.Ed. 828, 1919, it was held that, in a" }, { "docid": "23669863", "title": "", "text": "the privilege of suing the United States regardless of the amount of the claim, but only on condition that “the collector of internal revenue by whom such tax, penalty or sum was collected” is dead or out of office. This condition makes apparent the intent of the legislation, namely, to permit suit against the United States as an alternative to a suit against a deceased or retired collector. Of suits against a collector, the District Court already had jurisdiction unlimited as to amount. Jud. Code § 24(5) 28 USCA § 41 (5). Such a suit was personal to the collector, would survive his retirement from office and would not abate upon his death. See Smietanka v. Indiana Steel Co., 257 U. S. 1, 42 S. Ct. 1, 66 L. Ed. 99; Union Trust Co. v. Wardell, 258 U. S. 537, 42 S. Ct. 393, 66 L. Ed. 753; Patton v. Brady, 184 U. S. 608, 22 S. Ct. 493, 46 L. Ed. 713. We think it clear that the suits allowed under the amendment must ho of the same kind as those for which they are a substitute. In other words, after the amendment, if the collector by whom the tax was wrongfully collected is still in office, the suit must, as before, be brought against him, if the claim exceeds $10,000; hut, if he is out of office, then it may be brought in the District Court against the United States regardless of the amount claimed. Hence, unless the plaintiff’s suit is one that could be brought against a collector, it is not within the jurisdiction conferred on District Courts by the amendment. Accepting the appellants’ theory of their suit, the cause of action is grounded upon the Commissioner’s determination evidenced by his certificate of overassessment. Bonwit Teller & Co. v. United States, 283 U. S. 258, 265, 51 S. Ct. 395, 75 L. Ed. 3018. The liability of the United States rests upon an implied promise to pay the allowed refund. United States v. Real Estate Savings Bank, 104 U. S. 728, 733, 26 L. Ed. 908; United" }, { "docid": "23669862", "title": "", "text": "claimed was more than $19,009, but they assert that the amendment has removed the limitation as to ainount in such a suit as this. The amendment added to section 24 a paragraph which reads as follows (44 Stat. 121): “Concurrent with the Court of Claims, of any suit or proceeding, commenced after the passage of the Revenue Act of 1921, for the recovery of any internal-revenue tax alleged to have been erroneously or illegally assessed or collected, or of any penalty claimed to have been collected without authority or any sum alleged to have been excessive or in any manner wrongfully collected, under the internal-revenue laws, even if the claim exceeds $10,000, if the collector of internal revenue by whom such tax, penalty, or sum was collected is dead or is not in office as collector of internal revenue at the time such suit or proceeding is commenced.” It is apparent that this amendment enlarges the District Court’s jurisdiction by giving claimants wbo allege that money has been wrongfully collected under the internal revenue laws the privilege of suing the United States regardless of the amount of the claim, but only on condition that “the collector of internal revenue by whom such tax, penalty or sum was collected” is dead or out of office. This condition makes apparent the intent of the legislation, namely, to permit suit against the United States as an alternative to a suit against a deceased or retired collector. Of suits against a collector, the District Court already had jurisdiction unlimited as to amount. Jud. Code § 24(5) 28 USCA § 41 (5). Such a suit was personal to the collector, would survive his retirement from office and would not abate upon his death. See Smietanka v. Indiana Steel Co., 257 U. S. 1, 42 S. Ct. 1, 66 L. Ed. 99; Union Trust Co. v. Wardell, 258 U. S. 537, 42 S. Ct. 393, 66 L. Ed. 753; Patton v. Brady, 184 U. S. 608, 22 S. Ct. 493, 46 L. Ed. 713. We think it clear that the suits allowed under the amendment must" }, { "docid": "11977694", "title": "", "text": "remedy given, which was exclusive.” Expressions in Smietanka v. Indiana Steel Co., 257 U.S. 1, 42 S.Ct. 1, 66 L.Ed. 99; Sage v. United States, 250 U.S. 33, 39 S.Ct. 415, 63 L.Ed. 828; Graham & Foster v. Goodcell, 282 U.S. 409, 51 S.Ct. 186, 75 L.Ed. 415; White v. Hopkins (C.C.A.) 51 E.(2d) 159; Tait v. Western Md. R. Co., 289 U.S. 620, 53 S.Ct. 706, 77 L.Ed. 1405, relied on by appellants as declaring the law to be of a different purport, do not do so. They must be read as applied to the situations specifically dealt with under those decisions and the matters decided in them. They did not purport to deal with the question at issue here, whether the action against the collector for collections made officially would lie at common law independent of the congressional consent evidenced by statute. They may not be distorted into an overruling of the long line of cases beginning with Elliott v. Swartwout, which discuss and point the difference between a common-law action against the collector for his wrongful conduct and the statutory action allowed against him, and through him against the United States, for doing what the law commands, or appears to command, him,to do. Cf. De Lima v. Bidwell, 182 U.S. 1, at page 177, 21 S.Ct. 743, 45 L.Ed. 1041. It is perfectly plain that appellants have not pleaded, we think they cannot plead, a common-law, indeed without the aid of Congress any, action, against appellee. For, as shown at length in the Swartwout and Curtis Cases, appellee has done them no actionable wrong. A collector of internal revenue, obligated by statute to collect taxes and pay them daily over to the Treasury, he has done no wrong in doing so, for which an action, equitable in its nature, like that for moneys had and received, will lie against him. The statute is his master, it is likewise his protection and shield. It directs him to collect and pay over; it protects him when he does so. The law, in the absence of a statute giving one," }, { "docid": "18350909", "title": "", "text": "81(f) plays no part in this argument as it is limited to a construction of the Rules of Civil Procedure and has no application to the statute. The argument of the Collector is theoretically sound but has been consistently rejected by the Supreme Court. In Sage v. Unit ed States, 250 U.S. 33, 39 S.Ct. 415, 63 L.Ed. 828, the Court said that technically a judgment against a Collector is not a judgment against the United States, that such a suit is personal and its incidents, such as the nature of the defenses open and the allowance of interest, are different, and that at the time the judgment is entered, the United States is a stranger. In Smietanka v. Indiana Steel Co., 257 U.S. 1, 42 S.Ct. 1, 66 L.Ed. 99, it was held that an action against a Collector is based upon his personal liability and cannot be maintained against his successor in office. In United States v. Kales, 314 U.S. 186, 62 S.Ct. 214, 220, 86 L.Ed. 132, the Court said, “The judgment against the collector is a personal judgment, to which the United States is a stranger except as it has obligated itself to pay it. * * * While the statutes have for the most practical purposes reduced the personal liability of the collector to a fiction, the course of the legislation indicates clearly enough that it is a fiction intended to be acted upon to the extent that the right to maintain the suit and its incidents, until judgment rendered, are to be left undisturbed.” In United States v. Nunnally Investment Co., 316 U.S. 258, 62 S.Ct. 1064, 1067, 86 L.Ed. 1455, the Court reaffirmed the doctrine of the Sage case speaking as follows: “If the doctrine of the Sage case is now to be abandoned, such a determination of policy in the administration of the income tax law should be made by Congress, which maintains a Joint Committee on Internal Revenue Taxation charged with the duty of investigating the operation of the federal revenue laws and recommending such legislation as may be deemed desirable.”" }, { "docid": "6369817", "title": "", "text": "1923. Each of the defendants filed a separate demurrer to the complaint, relying on two grounds. The first ground in each of the demurrers is that it appears from the complaint that the taxes were paid voluntarily and without compulsion or duress, and without protest on the part of the plaintiff. The second ground of the demurrer of the defendant Mee is that the taxes sought to be recovered in the first and second counts of the complaint were not paid to nor received by him, either in his official or individual capacity, but as shown in these counts they were paid to and received by his codefendant Coffey, then the collector of internal revenue for that district. The second cause of demurrer of the defendant Coffey is upon the same ground as that of the defendant Mee, except that it applies only to the third count, which alleges that the tax was paid to and received by his codefendant Mee, who was then the collector of internal revenue for that district. The demurrers were by the court overruled, and, the defendants declining to plead further, judgment was entered against both defendants for the entire amounts claimed in all three counts, with interest at 7 per cent, per annum and the costs of the suit. As to the second grounds of demurrer, the court was clearly in error. Each defendant acted separately, and if plaintiff is entitled to judgment it can only recover from the collector to whom it made the payments. Sage v. United States, 250 U. S. 33, 39 Sup. Ct. 415, 63 L. Ed. 828; Smietanka, Collector, v. Indiana Steel Co., 257 U. S. 1, 42 Sup. Ct. 1, 66 L. Ed. 99; Union Trust Co. v. Wardell, 258 U. S. 537, 42 Sup. Ct. 393, 66 L. Ed. 753. In Patton v. Brady, Executrix, 184 U. S. 608, 22 Sup. Ct. 493, 46 L. Ed. 713, it was held that such an action against the collector survives his death, and his executor is the proper and only party to be substituted as the defendant, as the" }, { "docid": "6369818", "title": "", "text": "by the court overruled, and, the defendants declining to plead further, judgment was entered against both defendants for the entire amounts claimed in all three counts, with interest at 7 per cent, per annum and the costs of the suit. As to the second grounds of demurrer, the court was clearly in error. Each defendant acted separately, and if plaintiff is entitled to judgment it can only recover from the collector to whom it made the payments. Sage v. United States, 250 U. S. 33, 39 Sup. Ct. 415, 63 L. Ed. 828; Smietanka, Collector, v. Indiana Steel Co., 257 U. S. 1, 42 Sup. Ct. 1, 66 L. Ed. 99; Union Trust Co. v. Wardell, 258 U. S. 537, 42 Sup. Ct. 393, 66 L. Ed. 753. In Patton v. Brady, Executrix, 184 U. S. 608, 22 Sup. Ct. 493, 46 L. Ed. 713, it was held that such an action against the collector survives his death, and his executor is the proper and only party to be substituted as the defendant, as the action is personal against the collector who received the tax. This is reaffirmed and the reasons therefor are fully set out in Smietanka v. Indiana Steel Co., supra, pp. 4 and 5 (42 Sup. Ct. 1). As to the first grounds of the demurrers, the law, unless changed by the acts of Congress relied on by counsel for plaintiff, Hereafter referred to, prevents a recovery in such an action, if the tax was paid voluntarily, without coercion and without protest. A leading authority on that point is Philadelphia v. Collector, 72 U. S. (5 Wall.) 720, 731, 732 (18 L. Ed. 614). It was there held: “Appropriate remedy to recover back money paid under protest on account of duties or taxes erroneously or illegally assessed, is an action of assumpsit for money had and received. Where the party voluntarily pays the money, he is without remedy; but if he pays it by compulsion of law, or, under protest, or with notice that be intends to bring suit to test the validity of the claim, be" }, { "docid": "14732141", "title": "", "text": "specifically under this act of Congress, we are of the opinion that the action is not properly brought against the former collector, and could be maintained only against the United States, which, by act of Congress, has provided for its payment. The act of Congress did not place upon the collector of internal revenue the duty of paying interest on sums wrongfully collected, but provided for its payment by the United States. We conclude, therefore, that this action may not be maintained against the collector in person.” Penn Smokeless Coal Co. v. Lewellyn (D. C.) 26 F.(2d) 743, 744. See, also, Smietanka v. Indiana Steel Co. 257 U. S. 1, 42 S. Ct. 1, 66 L. Ed. 99; Union Trust Co. of San Francisco v. Wardell, 258 U. S. 537, 42 S. Ct. 393, 66 L. Ed. 753. “Where income tax was paid without protest, and no demand was made for return prior to expiration of collector’s term of office, remedy in 'case tax not legally due had been paid was by action against the United States, and not by personal action against former collector.” Harrison et al. v. Lewellyn (D. C.) 28 F.(2d) 990. It appears clearly to this court, from an examination of the statute.vesting jurisdiction in the various federal courts for the purpose of collecting taxes illegally or erroneously collected, that there are three types of actions possible: (1) A suit in the United States District Court against the collector who has received the alleged illegal tax. (2) A suit in the United States District Court against the United States for the amount collected. (3) A claim in the nature of a suit prosecuted in the United States Court of Claims. The various limitations affecting either one of the foregoing are easily discernible from the statute itself. See USCA title 28, § 41, par. 26. There is, therefore, a. serious question in the mind of this court whether or not this action could be maintained against the defendant, Alexander. Most certainly no personal liability could attach to him, but since to decide this question would make a" } ]

[ { "docid": "6708934", "title": "", "text": "U.S. 487, 495, 82 S.Ct. 510, 514, 7 L.Ed.2d 473 (1962). The Supreme Court has held that “A guilty plea, if induced by promises or threats which deprive it of the character of a voluntary act, is void.” Machibroda v. United States, supra at 493, 82 S.Ct. at 513. In Machibroda, petitioner, who was serving a twenty-five year sentence, alleged that he had been promised a sentence of not more than twenty years in return for his guilty plea. That promise was said to have been made on the authority of the United States Attorney and to be agreeable to the district court. Generally speaking, the courts have overturned guilty pleas only where defendants have shown that promises of leniency-were made by the court or that they believed promises made by the prosecution to be binding on the court. See Trimier v. United States, 295 F.2d 237 (8th Cir. 1961); Shelton v. United States, 246 F.2d 571, 572 n. 2 (5th Cir. 1957), rev’d on other grounds, 356 U.S. 26, 78 S.Ct. 563, 2 L.Ed.2d 579 (1958). In the instant case, defendant in his pro se brief does not make clear whether he believed the alleged promise to be binding on the court. However, even if the United States Attorney merely promised to recommend a suspended sentence, we note that no recommendation was made at the sentencing hearing, nor was reference made to any such recommendation. A sentence based on a guilty plea that was induced by reliance on an unfulfilled prosecution promise is void. United States v. Paglia, 190 F.2d 445, 448 (2d Cir. 1951), overruled on other grounds, United States v. Taylor, 217 F.2d 397 (2d Cir. 1954) , The government argues that, because defendant had the benefit of a complete Rule 11 inquiry at which he stated, among other things, that he had received no promise in return for his guilty plea, the district court was entitled to dispose of his motion on the basis of “the files and records of the case.” But as in Machibroda,, “the factual allegations contained in petitioner’s motion and affidavit *" } ]

[ { "docid": "22864443", "title": "", "text": "for his guilty plea, is instructed to, and does, claim total understanding of the charges against him and affirm the total absence of any bargain when questioned by the trial judge. This scenario will sometimes end in a sentence which comports with the defendant’s expectations or in, what the defendant feels is, a “double-cross”, when the trial judge exercises his discretion and pronounces a sentence more severe than the prosecutor “promised” or the judge supposedly had committed himself to. When this occurs, the defendant may (and we emphasize “may”) have a claim of an invalid plea based on incomprehension, misinterpretation, or inducement. The defendant, however, must have reasonable grounds for assuming that the bargain would be consummated. He cannot, in the ordinary case, rely on the promise of the prosecutor who has no authority to make sentencing promises, see Brown v. Beto, 5 Cir. 1967, 377 F.2d 950; United States v. Lester, 2 Cir. 1957, 247 F.2d 496, or on the inaccurate representations of an overzealous attorney, see Holland v. United States, 5 Cir. 1969, 406 F.2d 213. There must be some basis in the record for an appellate court to find that a “bargain” has been made which acted as an inducement and destroyed voluntariness. See Machibroda v. United States, 1962, 368 U.S. 487, 82 S.Ct. 510, 7 L.Ed.2d 473; Brown v. Beto, 5 Cir. 1967, 377 F.2d 950; Berlanga v. United States, 5 Cir. 1968, 394 F.2d 615. Often such “deals” are made privately and rarely if ever is a record kept. Therefore, all that an appellate court has is the word of the defendant or defense counsel against the word of the trial judge. At the very least, in such a situation, the defense attorney must assert the existence of the bargain and the events leading to its al leged formation. Without at least some indication, even if that indication is only-in the form of the insistence of defense counsel at a hearing on a motion to withdraw the guilty plea, that a “bargain” was made and that there was a reasonable basis for reliance on the" }, { "docid": "3823453", "title": "", "text": "v. United States, 368 U.S. 487, 493, 82 S.Ct. 510, 513, 7 L.Ed.2d 473 (1962). Chizen has not alleged merely that his counsel erroneously predicted the favorable consequences of a guilty plea; that, of course, would not entitle him to relief. See Blackledge v. Allison, 431 U.S. 63, 74, 97 S.Ct. 1621, 1629, 52 L.Ed.2d 136 (1977); United States v. Unger, 665 F.2d 251, 254 (8th Cir.1981), cert. denied, 464 U.S. 934, 104 S.Ct. 339, 78 L.Ed.2d 308 (1983); United States v. Marzgliano, 588 F.2d 395, 398 n. 6 (3d Cir.1978); Wellnitz v. Page, 420 F.2d 935, 936 (10th Cir.1970). Rather, he argues that his plea was involuntary because it was induced by his counsel’s misrepresentations as to what his sentence in fact would be. See Unger, 665 F.2d at 254; Marzgliano, 588 F.2d at 397-98; Wellnitz, 420 F.2d at 936. In McAleney v. United States, 539 F.2d 282 (1st Cir.1976), defense counsel told his client that the prosecutor had agreed to recommend a light sentence. In fact, the prosecutor had only given his personal opinion that the defendant would receive a light sentence; he never promised to give a recommendation. In granting the motion to withdraw the plea, the First Circuit held: “[the defendant] was entitled to credit his attorney’s representation as to the fact of such an agreement, and to rely on it; and if his guilty plea was in fact induced by such a representation, we agree with the district court that relief is in order.” Id. at 284; Marzgliano, 588 F.2d at 398. See generally Blackledge v. Allison, 431 U.S. 63, 97 S.Ct. 1621, 52 L.Ed.2d 136 (1977); Owens v. United States, 551 F.2d 1053 (5th Cir.), cert. denied, 434 U.S. 848, 98 S.Ct. 155, 54 L.Ed.2d 115 (1977); United States v. Del Piano, 386 F.2d 436 (3d Cir.1967), cert. denied, 392 U.S. 936, 88 S.Ct. 2306, 20 L.Ed.2d 1395 (1968). We agree. Chizen was entitled to rely on Andelson’s representation that a sentence agreement had been struck and if his nolo plea was induced by that representation, then Chizen is- entitled to relief. The district" }, { "docid": "2804771", "title": "", "text": "of plea to murder in the second degree and what the attitude of the County Attorney would be relative to recommending a sentence to the Court at the time of sentencing. That Stillings stated that in such a case he would recommend a long term of years in the order of forty (40) years.” Clearly, the evidence supports this finding. We have recognized that negotiations between the prosecution and defense are valuable in the disposition of criminal litigation when properly conducted. Lesley v. State of Oklahoma, 407 F.2d 543 (10th Cir. 1969); see also State v. Byrd, 203 Kan. 45, 453 P.2d 22 (1969). The law is settled that a plea of guilty induced by promises or threats which deprive the plea of its voluntary character is void and a conviction based upon it may be set aside in collateral proceedings. A plea of guilty is a waiver of a constitutional right to a jury trial. The plea should be accepted only if voluntarily and understandingly made. It must be free of factors or inducements which unfairly influence an accused when deciding what his plea shall be. It is difficult to perceive of a more effective influence on a decision whether or not to plead guilty to a criminal offense than an agreement with a prosecuting officer relative to his recommendation as to a sentence. In Machibroda v. United States, 368 U.S. 487, 493, 82 S.Ct. 510, 513, 7 L.Ed.2d 473 (1962), where one of the allegations was that an assistant United States attorney advised the accused prior to arraignment, that the total sentence .on a plea of guilty would not exceed twenty years, when in fact it totaled forty years, the Court said; “There can be no doubt that, if the allegations in the petitioner’s motion and affidavit are true, he is entitled to have his sentence vacated. A guilty plea, if induced by promises or threats which deprive it of the character of a voluntary act, is void. A sentence based upon such a plea is open to collateral attack. * * * ” As said in Kercheval" }, { "docid": "22821947", "title": "", "text": "this way.” Illinois v. Allen, 397 U.S. 337, 345, 90 S.Ct. 1057, 1062, 25 L.Ed.2d 353 (1970). There was no error, therefore, in rejecting this claim as wholly without merit. The district court also found no merit in Malcolm’s claim that his plea was induced by the prosecutor’s unfulfilled promise to recommend sentence under the Federal Youth Corrections Act. A guilty plea, if induced by promises, or threats which deprive it of the character of a free and voluntary act is void. Machibroda v. United States, supra, 368 U.S. at 493, 82 S.Ct. 510, 7 L.Ed.2d 473. It does not follow, however, that a prosecutorial promise to recommend leniency necessarily deprives a plea of its voluntary character. Rather, as the Supreme Court emphasized in Brady v. United States, 397 U.S. 742, 749, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970), a guilty plea is the product of many factors, and its voluntariness can be determined only by considering “all of the relevant circumstances.” Cf. Haynes v. Washington, 373 U.S. 503, 513, 83 S.Ct. 1336, 10 L.Ed.2d 513 (1963); Leyra v. Denno, 347 U.S. 556, 558, 74 S.Ct. 716, 98 L.Ed. 948 (1954). Thus, even if the alleged promise were proved, it would not necessarily entitle Malcolm to relief. The plea here was made in open court and Malcolm was represented and advised by counsel of his own choosing, circumstances which tend to “dissipate” the “coercive impact” of a prosecutor’s promise to recommend leniency. Brady v. United States, supra, 397 U.S. at 754, 90 S.Ct. 1463. Moreover, the claim rests on nothing but Malcolm’s bald conclusory allegation which is refuted by the record. Responding to Judge Bartels’ explicit questions, Malcolm categorically denied that any promises had been made to induce his plea of guilty and stated that he was pleading guilty because he was guilty and for no other reason. Accordingly, there was no error in denying this claim. We turn, then, to consideration of Malcolm's cluster of claims that his sentence was unduly severe and that the sentencing judge stifled the prosecutor from keeping his promise to recommend sentence under the" }, { "docid": "11808912", "title": "", "text": "police tactics and mental and physical illness); Machibroda v. United States, 368 U.S. 487, 489-97, 82 S.Ct. 510, 7 L.Ed.2d 473 (1962) (hearing required on petitioner's specific and detailed allegations that prosecutor had made ex parte promises to him and told him not to tell his own counsel); compare Nahodil, 36 F.3d at 326-27 (petitioner alleged that counsel advised him to plead guilty despite his repeated objections to doing so, the record of the plea hearing substantiated that he had been reluctant, and he had promptly moved to withdraw the plea prior to sentencing); United States v. Ackerman, 619 F.2d 285, 287-88 (3d Cir.1980) (hearing required to de termine whether letters allegedly sent to petitioner by his defense counsel were in fact sent, and whether counsel was justified in failing to timely file Rule 35 motion to correct or reduce sentence); Marzgliano, 588 F.2d at 397-99 (petitioner submitted affidavits indicating that his defense counsel may have led him to believe that counsel had a special relationship with district judge and had \"fixed” what the sentence would be); United States v. Valenciano, 495 F.2d 585, 586-88 (3d Cir. 1974) (hearing required where no written plea agreement was entered into, and petitioner claimed that his counsel had told him of the terms of an alleged oral agreement with the government in order to induce him to plead guilty); Moorhead v. United States, 456 F.2d 992, 995-96 (3d Cir.1972) (petitioner alleged misrepresentation by defense counsel as to a \"proposition” by the government for a light sentence) with Masciola, 469 F.2d at 1059 (\"When the pleading proceedings record shows clearly that defendant was questioned as to the voluntariness of his plea [and defendant acknowledged his awareness of the maximum available sentence], there is no need for an evidentiary hearing ... when the only claim is that counsel inaccurately predicted the sentence.”); see also Blackledge v. Allison, 431 U.S. 63, 71-77, 97 S.Ct. 1621, 52 L.Ed.2d 136 (1977) (summary dismissal of § 2254 petition improper where petitioner made specific factual allegations concerning unkept oral plea agreement at a time before plea bargaining was accepted as" }, { "docid": "23054220", "title": "", "text": "500. See United States ex rel. Codarre v. Gilligan, 363 F.2d 961, 965 (2d Cir. 1966). Judicial notice of tensions surrounding acceptance of pleas makes it impossible to decide without a hearing that defendant understood the significance of the District Attorney’s statement for the record that no promise was made. But even if the defendant did hear and did comprehend, his failure to challenge when his attorney stood mute is not conclusive evidence of acquiescence. “If the judge, the prosecution, or the defense counsel makes a statement in open court that is contrary to what he has been led to believe, especially as to promises by the prosecutor or his defense counsel * * * [the defendant] would no more challenge that statement in open court than he would challenge a clergyman’s sermon from the pulpit.” Trebach, The Rationing of Justice 159-60 (1964). See also American Bar Association, Standards Relating to Pleas of Guilty 61 (1967) (“Notwithstanding the fact that the plea has been the subject of negotiation, the defendant usually answers in the negative, and the prosecutor and defense counsel seldom indicate to the contrary”). In view of the circumstances of this case and the fact that defendant immediately wrote a letter to the court stating that he had only pled guilty because he had been told he would receive a suspended sentence, there can be no assumption that the plea was valid. See Machibroda v. United States, 368 U.S. 487, 490, 82 S.Ct. 510, 7 L.Ed.2d 473 (1962) (hearing granted on basis of letters to sentencing court and Attorney General to which he received no reply); cf., United States v. Hughes, 325 F.2d 789, 791 (2d Cir. 1964) (“Judge Her-lands sought primarily to determine whether Hughes had asserted his innocence at or about the time of his guilty plea, since that fact, if established, would have supported his claim that his plea had been induced by government representations rather than by a consciousness of guilt”). The hearing before this Court will determine whether the petitioner believed at the time he pled guilty that coercive threats or promises had" }, { "docid": "896087", "title": "", "text": "Hayes v. Maggio, 699 F.2d 198, 203 (5th Cir.1983) (citing Blackledge v. Allison, 431 U.S. 63, 76, 97 S.Ct. 1621, 1630, 52 L.Ed.2d 136 (1977)); see also Smith v. Blackburn, 785 F.2d 545, 548 (5th Cir.1986). Such a plea is also necessarily subject to collateral attack under § 2255. “A guilty plea, if induced by promises or threats which deprive it of the character of a voluntary act, is void. A conviction based upon such a plea is open to collateral attack.” Machibroda v. United States, 368 U.S. 487, 493, 82 S.Ct. 510, 513, 7 L.Ed.2d 473 (1962); see also United States v. Birdwell, 887 F.2d 643, 645 (5th Cir.1989); United States v. McCord, 618 F.2d 389, 392 (5th Cir.1980); accord United States v. Quan, 789 F.2d 711, 713 (9th Cir.), cert. dismissed, 478 U.S. 1033, 107 S.Ct. 16, 92 L.Ed.2d 770 (1986); Knight v. United States, 611 F.2d 918, 921 (1st Cir.1979). B. Breach of the Plea Agreement On appeal, Cates alleges four separate breaches of the plea agreement by the government. First, he contends that the government, at the sentencing hearing, provided inaccurate information regarding Cates’s cooperation. Second, he contends that the government’s opposition to his Rule 35 motion constitutes a breach of the government’s promise to recommend a ten-year maximum sentence. Third, he argues that the comments made by the prosecutor at the sentencing hearing constitute a further breach of the same promise. Finally, he contends that the government failed to fulfill its affirmative obligation to recommend a ten-year cap on his sentence. We address these claims in turn. 1. Preliminary matters The first two issues are easily disposed of. Cates’s argument regarding the government’s provision of information about his cooperation is not cognizable as a breach of the plea agreement. The plea agreement included no terms requiring Cates’s cooperation or requiring the government to refrain from commenting on any aspect of Cates’s cooperation. The fact that the government presented information to the court regarding Cates’s lack of cooperation is entirely irrelevant to the plea agreement’s validity. Cates presents no other basis for his challenge to the" }, { "docid": "6708933", "title": "", "text": "* * * by Louis M. J'anelle, Esq., the United States Attorney.” In his brief defendant states that this promise was his sole reason for pleading guilty; that he and his “co-defendant” were given the same proposition at the same time; that the co-defendant was granted relief and that he is entitled to equal treatment. The district court denied defendant’s motion without a hearing. Although the motion comes too late for Fed.R.Crim.P. 35, it can be treated as a collateral attack upon his sentence under 28 U.S.C. § 2255 (1964). The government contends that the defendant is not entitled to a hearing because his allegations are conelusory and lack specificity. Macon v. United States, 414 F.2d 1290 (9th Cir. 1969). But in Macon the defendant alleged merely that he had pleaded guilty because he believed “he would be treated with leniency.” Inasmuch as this defendant has alleged a promise of a specific sentence made by a named official, his motion cannot be said to be “vague, conelusory, or palpably incredible.” Machibroda v.. United States, 368 U.S. 487, 495, 82 S.Ct. 510, 514, 7 L.Ed.2d 473 (1962). The Supreme Court has held that “A guilty plea, if induced by promises or threats which deprive it of the character of a voluntary act, is void.” Machibroda v. United States, supra at 493, 82 S.Ct. at 513. In Machibroda, petitioner, who was serving a twenty-five year sentence, alleged that he had been promised a sentence of not more than twenty years in return for his guilty plea. That promise was said to have been made on the authority of the United States Attorney and to be agreeable to the district court. Generally speaking, the courts have overturned guilty pleas only where defendants have shown that promises of leniency-were made by the court or that they believed promises made by the prosecution to be binding on the court. See Trimier v. United States, 295 F.2d 237 (8th Cir. 1961); Shelton v. United States, 246 F.2d 571, 572 n. 2 (5th Cir. 1957), rev’d on other grounds, 356 U.S. 26, 78 S.Ct. 563, 2 L.Ed.2d" }, { "docid": "2804772", "title": "", "text": "which unfairly influence an accused when deciding what his plea shall be. It is difficult to perceive of a more effective influence on a decision whether or not to plead guilty to a criminal offense than an agreement with a prosecuting officer relative to his recommendation as to a sentence. In Machibroda v. United States, 368 U.S. 487, 493, 82 S.Ct. 510, 513, 7 L.Ed.2d 473 (1962), where one of the allegations was that an assistant United States attorney advised the accused prior to arraignment, that the total sentence .on a plea of guilty would not exceed twenty years, when in fact it totaled forty years, the Court said; “There can be no doubt that, if the allegations in the petitioner’s motion and affidavit are true, he is entitled to have his sentence vacated. A guilty plea, if induced by promises or threats which deprive it of the character of a voluntary act, is void. A sentence based upon such a plea is open to collateral attack. * * * ” As said in Kercheval v. United States, 274 U.S. 220, 223, 47 S.Ct. 582, 583, 71 L.Ed. 1009 (1927): “ * * * A plea of guilty differs in purpose and effect from a mere admission or an extra-judicial confession; it is itself a conviction. Like a verdict of a jury it is conclusive. More is not required; the court has nothing to do but give judgment and sentence. Out of just consideration for persons accused of crime, courts are careful that a plea of guilty shall not be accepted unless made voluntarily after proper advice and with full understanding of the consequences. * * ” See also McCarthy v. United States, 394 U.S. 459, 89 S.Ct. 1166, 22 L.Ed.2d 418 (1969). In proceedings after the guilty plea was entered, the sentencing judge stated that if the recommendation had been made it would have been rejected, and furthermore, that the county attorney at the motion for permission to withdraw the guilty plea made the recommendation, which was not accepted by the court. The Kansas Supreme Court, in upholding the" }, { "docid": "3438179", "title": "", "text": "COFFIN, Chief Judge. This is an appeal from the district court’s dismissal of appellant’s motion to vacate a sentence of twenty years’ imprisonment imposed after his plea of guilty to a federal bank robbery charge. Appellant contends before us that his plea was induced because he was “led to believe” that a fifteen year sentence would be imposed, as it had been upon his pleas of guilty to four other similar charges. Appellant does not now challenge the district court’s finding, adverse to his contentions below, that neither his trial counsel, nor the Assistant U. S. Attorney responsible for handling the case against him promised appellant that a particular sentence would be imposed, or misled him as to the advisory nature of the prosecutor’s recommendation for sentencing. The crux of appellant’s argument is that having four times within a short span of time pleaded guilty and on each occasion having seen the prosecutor’s recommendation of a sentence of fifteen years accepted by a different judge, he was convinced that he was assured of the same sentence, upon his fifth guilty plea. Since that belief was erroneous, appellant maintains that his plea was not “voluntary”. Generally the imposition of a sentence greater than that expected by a defendant, or predicted by his counsel is not adequate grounds for vacating the sentence under 28 U.S.C.A. § 2255. Domenica v. United States, 292 F.2d 483, 485 (1st Cir. 1961); United States v. Pallotta, 433 F.2d 594, 595 (1st Cir. 1970). Only if a defendant can show that his plea was coerced, Machibroda v. United States, 368 U.S. 487, 82 S.Ct. 510, 7 L.Ed.2d 473 (1962), or induced by false promises, Santobello v. New York, 404 U.S. 257, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971), or made without comprehension of the charge against him, Herman v. Claudy, 350 U.S. 116, 76 S.Ct. 223, 100 L.Ed. 126 (1956), is he later permitted to argue that his plea was not “voluntary”. Fed.R.Crim.Proc. 11 is intended to assure that guilty pleas are voluntarily entered, requiring that the court address the defendant personally and determine “. . ." }, { "docid": "2982449", "title": "", "text": "instead of being sentenced, as he actually was, to state prison for the term prescribed by law. He does not directly charge that either the judge or the prosecutor was a party to any such understanding. At most he says that his attorney told him that the judge had promised such leniency, and that the prosecutor had agreed to the same deal. It is also implicit in the allegations that Gilmore did not agree to the deal, at least if the claimed promise of leniency were not a part of it. It has been held, and we agree, that mere disappointment at the severity of the sentence received upon a plea of guilty is no ground for habeas corpus or other similar relief, even where defendant’s counsel has expressed an opinion that leniency will be granted. Pinedo v. United States, 9 Cir., 1965, 347 F.2d 142; United States v. Parrino, 2 Cir., 1954, 212 F.2d 919; Monroe v. Huff, 1944, 79 U.S.App.D.C. 246, 145 F. 2d 249. But here, allowing for Gilmore’s lack of skill in drafting his allegations it is at least arguable that more than mere disappointment is involved. A flat misrepresentation by his attorney is asserted. Participation in a promise of leniency, and breach of that promise, by both judge and prosecutor are at least implied. We would feel more comfortable about the case if the court had held a hearing on these charges. If the judge or the prosecutor made a promise, and if this were a federal conviction, the case would fall within the rule in Machibroda v. United States, 1962, 368 U.S. 487, 489, 493, 82 S.Ct. 510, 7 L.Ed.2d 473. We entertain some doubt, as the trial judge did, that Gilmore’s charges are true. But the trial court did not and we do not have the record of what took place at Gilmore’s sentencing, and in any event, it probably would not fully answer the charge, which appears to allege matters occurring outside the record. We conclude that the trial judge should have held a hearing limited to those allegations that relate to" }, { "docid": "7826282", "title": "", "text": "hearing to ascertain the constitutional validity of a prior conviction which the Government attempts to introduce for the purpose of enhancing punishment. The Government’s alternative argument is that the defendant’s affidavit failed to raise detailed facts sufficient to require the district court to hold a hearing to determine the constitutionality of the defendant’s prior conviction. The Government relies principally on Machibroda v. United States, 368 U.S. 487, 82 S.Ct. 510, 7 L.Ed.2d 473 (1962) and Oliver v. United States, 398 F.2d 353 (9th Cir.1968) to support its position that the defendant’s allegations were vague and conclusory. Our examination of Machibroda indicates that the defendant here was entitled to a hearing. In both cases the defendant’s contention was that his plea had been coerced by a promise. A hearing was sought in each case on the basis of the defendant’s affidavit alone. The affidavit here raises facts in sufficient detail to require a hearing to determine whether the defendant’s plea was “induced by promises * * * which deprive it of the character of a voluntary act.” Machibroda v. United States, 368 U.S. 487, 493, 82 S.Ct. 510, 513, 7 L.Ed.2d 473 (1962). We find that the specificity requirements of the Oliver case are likewise met by the Martinez affidavit. The defendant has alleged that at the time he entered his plea of guilty he was under the influence of heroin and was suffering from withdrawal symptoms. On similar facts it has been held that a guilty plea based on a confession obtained while the defendant is suffering from withdrawal symptoms was not voluntary. United States ex rel. Collins v. Maroney, 287 F.Supp. 420 (E.D.Pa. 1968). The entry of a plea of guilty while under the influence of narcotics which is alleged in this case is potentially more substantial error, since “entry of a plea of guilty demands even more stringent safeguards than are required for confessions.\" United States ex rel. Codarre v. Gilligan, 363 F.2d 961, 966 (2d Cir.1966). For the same reasons, the allegation that the defendant was promised treatment for his addiction raises due process considerations. The case" }, { "docid": "23054221", "title": "", "text": "and the prosecutor and defense counsel seldom indicate to the contrary”). In view of the circumstances of this case and the fact that defendant immediately wrote a letter to the court stating that he had only pled guilty because he had been told he would receive a suspended sentence, there can be no assumption that the plea was valid. See Machibroda v. United States, 368 U.S. 487, 490, 82 S.Ct. 510, 7 L.Ed.2d 473 (1962) (hearing granted on basis of letters to sentencing court and Attorney General to which he received no reply); cf., United States v. Hughes, 325 F.2d 789, 791 (2d Cir. 1964) (“Judge Her-lands sought primarily to determine whether Hughes had asserted his innocence at or about the time of his guilty plea, since that fact, if established, would have supported his claim that his plea had been induced by government representations rather than by a consciousness of guilt”). The hearing before this Court will determine whether the petitioner believed at the time he pled guilty that coercive threats or promises had been made by the state to induce his plea. IV. ADEQUACY OF COUNSEL; ASSUMPTIONS ON SENTENCING A series of post-conviction applications for relief should be avoided. The Court will consider at the hearing two issues suggested for the first time by counsel for petitioner. The Court will determine whether petitioner was denied effective assistance of counsel at or immediately following sentencing. Cf. United States ex rel. Maselli v. Reincke, 261 F.Supp. 457 (D.Conn.1966), aff’d, 383 F.2d 129 (2d Cir. 1967) (failure of counsel to advise defendant of right to appeal.) This question is particularly serious in view of the questionable legal advice purportedly given by a County Court official immediately following sentencing. The Court will also consider whether defendant’s rights were violated by the conclusion of the sentencing judge that petitioner had a “bad record.” Petitioner was a first offender and the basis of the court’s conclusion was, so far as the present record indicates, not revealed to the prisoner. See United States ex rel. Jackson v. Myers, 374 F.2d 707, 708 (3d Cir. 1967)" }, { "docid": "3823452", "title": "", "text": "that the trial judge had committed himself to a particular sentence, notwithstanding that Chizen had signed a Tahl-Boykin waiver form. It has been conceded by both parties that we can assume, for the purposes of this appeal, that Chizen’s attorney, Andelson, did in fact misrepresent to Chizen that a plea bargain had been struck whereby the judge would not sentence Chizen to more than 90 days in jail. Because Andelson misrepresented to Chizen that a specific sentence would follow upon a plea of nolo contendere, the question arises whether such a plea was made voluntarily. The long-standing test for determining the validity of a guilty plea is “whether the plea represents a voluntary and intelligent choice among the alternative courses of action open to the defendant.” Hill v. Lockhart, 474 .U.S.-, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985) (citing North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970)). “A guilty plea, if induced by promises or threats which deprive it of the character of a voluntary act, is void.” Machibroda v. United States, 368 U.S. 487, 493, 82 S.Ct. 510, 513, 7 L.Ed.2d 473 (1962). Chizen has not alleged merely that his counsel erroneously predicted the favorable consequences of a guilty plea; that, of course, would not entitle him to relief. See Blackledge v. Allison, 431 U.S. 63, 74, 97 S.Ct. 1621, 1629, 52 L.Ed.2d 136 (1977); United States v. Unger, 665 F.2d 251, 254 (8th Cir.1981), cert. denied, 464 U.S. 934, 104 S.Ct. 339, 78 L.Ed.2d 308 (1983); United States v. Marzgliano, 588 F.2d 395, 398 n. 6 (3d Cir.1978); Wellnitz v. Page, 420 F.2d 935, 936 (10th Cir.1970). Rather, he argues that his plea was involuntary because it was induced by his counsel’s misrepresentations as to what his sentence in fact would be. See Unger, 665 F.2d at 254; Marzgliano, 588 F.2d at 397-98; Wellnitz, 420 F.2d at 936. In McAleney v. United States, 539 F.2d 282 (1st Cir.1976), defense counsel told his client that the prosecutor had agreed to recommend a light sentence. In fact, the prosecutor had only given his personal" }, { "docid": "12372102", "title": "", "text": "GOLDBERG, Circuit Judge: This post conviction case presents an appeal from the summary denial of a motion under 28 U.S.C.A. § 2255 to set aside a judgment and sentence. Perceiving no basis for granting relief in petitioner’s motion, the district judge denied the motion without calling for a response from the United States Attorney and without conducting an evidentiary hearing. We find that petitioner has alleged facts that, if true, will clearly entitle him to relief, and we reverse. Petitioner, Herminio H. Gallegos, was convicted in 1971 of violating 26 U.S.C. A. § 4744(a)(1) by obtaining marihuana without having paid the transfer tax. Petitioner was represented by counsel and had entered a plea of guilty in open court. He was sentenced to ten years imprisonment as a second offender, see 26 U.S.C.A. § 7237, the government having filed a supplemental information indicating that petitioner had been convicted in 1948 of violating the predecessor of section 4744, 26 U.S.C.A. § 2593. Petitioner seeks by the instant proceedings to challenge that judgment and sentence on several grounds. First, petitioner alleges that he had entered into a “plea bargain” with the government and that the government had breached the agreement after petitioner fulfilled his promise to plead guilty. Under Santobello v. New York, 1971, 404 U.S. 257, 92 S.Ct. 495, 30 L.Ed.2d 427; Machibroda v. United States, 1962, 368 U.S. 487, 82 S.Ct. 510, 7 L.Ed.2d 473; Johnson v. Beto, 5 Cir. 1972, 466 F.2d 478; and James v. Smith, 5 Cir. 1972, 455 F.2d 502, petitioner’s allegations are here fully sufficient to require that a hearing be held. The cited cases teach that if a plea bargain induced a guilty plea and the government’s promise to take some course of action in return is not fulfilled, the person convicted is entitled to relief. Petitioner questions whether the court is not bound by a bargain struck between the government and the defendant in a criminal case. We do not find that that is the law; rather, the cases reveal that such a bargain is either specifically enforceable between the parties to the agreement" }, { "docid": "3438180", "title": "", "text": "sentence, upon his fifth guilty plea. Since that belief was erroneous, appellant maintains that his plea was not “voluntary”. Generally the imposition of a sentence greater than that expected by a defendant, or predicted by his counsel is not adequate grounds for vacating the sentence under 28 U.S.C.A. § 2255. Domenica v. United States, 292 F.2d 483, 485 (1st Cir. 1961); United States v. Pallotta, 433 F.2d 594, 595 (1st Cir. 1970). Only if a defendant can show that his plea was coerced, Machibroda v. United States, 368 U.S. 487, 82 S.Ct. 510, 7 L.Ed.2d 473 (1962), or induced by false promises, Santobello v. New York, 404 U.S. 257, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971), or made without comprehension of the charge against him, Herman v. Claudy, 350 U.S. 116, 76 S.Ct. 223, 100 L.Ed. 126 (1956), is he later permitted to argue that his plea was not “voluntary”. Fed.R.Crim.Proc. 11 is intended to assure that guilty pleas are voluntarily entered, requiring that the court address the defendant personally and determine “. . . that the plea is made voluntarily with understanding of the nature of the charge and the consequences of the plea.” The district court in this case fully complied with the rule. The colloquy revealed straightforward answers to all the pertinent questions as to waiver of rights, maximum penalties, lack of inducement, etc. While defendant and his counsel were upset at the action of the judge in effectively negating the actions of four other judges, there was no intimation at the time to court, prosecutor, or defense counsel or in a subsequent motion to reduce sentence that a foul had occurred. In the absence of any indication that appellant was misled by the prosecutor, or that the sentencing court failed adequately to probe appellant’s state of mind, we cannot look into the subjective mental set of appellant to see to what extent misconceptions played a part in his guilty plea. We know of no standards which could prevent such an approach from becoming an unmanageable ad hoc probing of defendant’s psyche at the time he pleaded" }, { "docid": "6708939", "title": "", "text": "suspended by the district court on the ground that his guilty plea had been induced by an unfulfilled promise by the United States Attorney. We note, however, that Theodore offered very compelling evidence at his hearing. He in trodueed a letter which the United States Attorney had sent to his lawyer promising to recommend a suspended sentence. We do not know as yet what evidence this defendant will offer. Accordingly, we conclude that the defendant is entitled to an evidentiary hearing. We do not determine whether it is necessary that defendant be present at the hearing. That is discretionary with the district court. Machibroda v. United States, supra at 495-496, 82 S.Ct. 510. Reversed and remanded to the district court for proceedings consistent with this opinion. . There is some suggestion in a subsequent Second Circuit case that an unfulfilled prosecution promise can be the basis for vacating a guilty plea only if the prosecution did not intend to honor its promise. United States ex rel. Wissenfeld v. Wilkins, 281 F.2d 707, 712 (2d Cir. 1960) ; see also Dillon v. United States, 307 F.2d 445, 449 (9th Cir. 1962). Wissenfeld appears to be based on the premise that, since we presume that defendants know that prosecution recommendations are not binding on the courts, we must conclude that no rational defendant would be induced to plead guilty by the promise of such a recommendation. We disagree with that conclusion. As Judge Learned Hand noted, “We all know that, although a judge is not bound to accept recommendations, he is extremely likely to be influenced by them.” United States v. Paglia, supra at 447. Whether a defendant’s guilty plea was induced by an unfulfilled prosecution promise is a question of fact to be resolved at an evidentiary hearing. . 28 U.S.C. § 2255 (1964) provides: “ * * * Unless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief, the court shall * * * grant a prompt hearing thereon, * * * ” . As defendant notes in his" }, { "docid": "23389731", "title": "", "text": "left wholly to the Attorney General’s discretion. The court found that the appellant was under no “illusion that he was going to avoid spending time in a federal prison.” Appellant contends that the district court erred in denying his motion because the government’s promise that his state and federal sentences would be concurrent was the sole motivating factor for his plea and that the plea was therefore involuntary. Although promises or threats may deprive a guilty plea of its free and voluntary character, rendering it void, Machibroda v. United States, 368 U.S. 487, 493, 82 S.Ct. 510, 7 L.Ed.2d 473 (1962), this does not mean that a prosecutor’s promise to recommend leniency necessarily has that result, United States v. Malcolm, 432 F.2d 809, 814 (2d Cir. 1970). The opinion in Brady v. United States, 397 U.S. 742, 749, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970) makes it clear that a guilty plea is the product of many factors and that its voluntariness can be determined only by weighing “all of the relevant circumstances.” The record shows that the appellant himself initially approached the Assistant United States Attorney and said “I would like to take a plea of guilty to this indictment.” This he did after he had heard the testimony against him of the government’s principal witness which implicated him in a crime carrying a maximum sentence of fifteen years. Appellant was not an uncoun-seled, uneducated defendant unfamiliar with the workings of the criminal law but rather a sophisticated and intelligent man. The evidence adduced at the hearing on the motion supports the judge’s finding that the appellant calculated his position and made a rational decision to plead guilty. The fact that the plea was accepted only after a series of three transcribed conferences with the judge and appellant’s counsel present tends to “dissipate\" the “coercive impact” which might have resulted from the prosecutor’s promises to recommend leniency. Brady v. United States, supra at 754, 90 S.Ct. 1463, United States v. Malcolm, supra 432 F.2d at 814. The judge made it entirely clear that he would make no recommendation to" }, { "docid": "23222207", "title": "", "text": "that: The crucial allegation of the second motion was that petitioner’s alleged mental incompetency was the result of administration of narcotic drugs during the period petitioner was held in the Sacramento County Jail pending trial in the instant case. However regular the proceedings at which he signed a waiver of indictment, declined assistance of counsel, and pleaded guilty might appear from the transcript, it still might be the case that petitioner did not make an intelligent and understanding waiver of his constitutional rights. See Machibroda v. United States, 368 U.S.. 487, 82 S.Ct. 510, 7 L.Ed.2d 473; Moore v. State of Michigan, 355 U.S. 155, 78 S.Ct. 191, 2 L.Ed. 2d 167; Commonwealth of Pennsylvania ex rel. Herman v. Claudy, 350 U.S. 116, 76 S.Ct. 223, 100 L.Ed. 126; Taylor v. United States, 193 F.2d 411 (C.A. 10th Cir., 1952). Cf. Von Moltke v. Gillies, 332 U.S. 708, 68 S.Ct. 316, 92 L.Ed. 309. For the facts on which petitioner’s claim in his second application is predicated are outside the record. * * * That the judge may have thought that he acted with intelligence and understanding in responding to the judge’s inquiries cannot ‘conclusively show,’ as the statute requires, that there is no merit in his present claim. Cf. Machibroda v. United States, supra, 368 U.S. at 495, 82 S.Ct. at 514, 7 L.Ed.2d 473 (373 U.S. at 19-20, 83 S.Ct. at 1079, emphasis ours). The double citation to Machibroda v. United States, 368 U.S. 487, 82 S.Ct. 510 (1961), directed attention to the established rule that findings of fact on matters placed in issue by the allegations of a petitioner’s motion can not be made without a full evidentiary hearing unless all the material facts can be conclusively established by the files and records in the case. In that case the petitioner was serving a twenty-five year bank robbery sentence imposed on a plea of guilty in 1956. In 1959 he filed a Section 2255 motion alleging that his guilty plea was not voluntary because it had been “induced by promises made by the Assistant United States Attorney" }, { "docid": "12372103", "title": "", "text": "First, petitioner alleges that he had entered into a “plea bargain” with the government and that the government had breached the agreement after petitioner fulfilled his promise to plead guilty. Under Santobello v. New York, 1971, 404 U.S. 257, 92 S.Ct. 495, 30 L.Ed.2d 427; Machibroda v. United States, 1962, 368 U.S. 487, 82 S.Ct. 510, 7 L.Ed.2d 473; Johnson v. Beto, 5 Cir. 1972, 466 F.2d 478; and James v. Smith, 5 Cir. 1972, 455 F.2d 502, petitioner’s allegations are here fully sufficient to require that a hearing be held. The cited cases teach that if a plea bargain induced a guilty plea and the government’s promise to take some course of action in return is not fulfilled, the person convicted is entitled to relief. Petitioner questions whether the court is not bound by a bargain struck between the government and the defendant in a criminal case. We do not find that that is the law; rather, the cases reveal that such a bargain is either specifically enforceable between the parties to the agreement or the plea is void. Thus, if the prosecutor promised to seek only a five year sentence, as pe titioner here alleges, that is the promise that must be fulfilled. We note that because the enhancement/recidivist statute, 26 U.S.C.A. § 7237, exacts as a minimum a ten year sentence, the government’s seeking to enhance the sentence would violate an agreement to seek only a five year sentence. Section 2255 specifically requires a district judge to conduct an evidentiary hearing and to make findings of fact and conclusions of law with respect to a section 2255 motion unless “the motion and the files and records of the ease conclusively show that the prisoner is entitled to no relief.” See Fuentes v. United States, 5 Cir. 1972, 455 F.2d 910, 911. Machibroda v. United States, supra and Santobello v. New York, supra, teach that formalistic recitations in the record that indicate the plea was “voluntary” cannot prevent the person convicted from complaining if the prosecutor later breaches the agreement that induced the plea. See Hilliard v. Beto," } ]

[ { "docid": "1848807", "title": "", "text": "element is required instead of or in addition to the acts of reproduction, performance, distribution or display, in order to constitute a state-created cause of action,” there is no preemption. Computer Assocs. Int'l Inc. v. Altai, Inc., 982 F.2d 693, 716 (2d Cir. 1992) (internal quotation marks omitted). Applying this “extra element” test, we have held numerous categories of claims to be not preempted, including trade secret claims, in which the plaintiff must show the defendant breached a duty of trust through improper disclosure of confidential material, id. at 717; certain “hot news” misappropriation claims, because the plaintiff must show time-sensitive factual information, free-riding by the defendant, and a threat to the very existence of the plaintiff’s product, NBA, 105 F.3d at 853; and breach of confidential relationship, in which the plaintiff must show an obligation not to disclose ideas revealed in confidence, Smith v. Weinstein, 578 F.Supp. 1297, 1307 (S.D.N.Y.1984), aff'd without opinion, 738 F.2d 419 (2d Cir.1984). See also Harper & Row, 723 F.2d at 201 (in dictum, suggesting that conversion based on physical possession and control of a copyrighted work may not be preempted because such a tort involves “acts ... qualitatively different from those proscribed by copyright law”). . By contrast, we have found a state law claim preempted when the extra element changes the scope but not the fundamental nature of the right. See, e.g., Briarpatch, 373 F.3d at 306-07 (holding an unjust enrichment claim preempted because, although plaintiff must prove “enrichment,” the essential nature of the claim remained the unauthorized use of a work); Fin. Info., Inc. v. Moody’s Investors Serv., Inc., 808 F.2d 204, 208 (2d Cir.1986) (holding that a misappropriation claim was preempted because the element of commercial immorality did not change qualitative nature of the right); Harper & Row, 723 F.2d at 201 (holding that a claim of conversion based on unauthorized publication of a work was preempted because it is “coextensive with an exclusive right already safeguarded by the Act”). In this ease, the issue is whether a particular breach of contract claim survives preemption. More specifically, Forest Park alleges" } ]

[ { "docid": "6153950", "title": "", "text": "31, 2009) (same). Plaintiffs, because they seek the protection of the Copyright Act, acknowledge that the subject matter requirement is met, but argue that each of their state-law causes of action fails the general scope requirement and, hence, is not preempted. (Pis.’ Mem. 12.) “In order for a state cause of action to survive preemption, it must have an ‘extra element’ beyond reproduction, preparation of derivative works, distribution, performance or display, which ‘changes the nature of the action so that it is qualitatively different from a copyright infringement claim.’ ” Gusler v. Fischer, 580 F.Supp.2d 309, 316 (S.D.N.Y.2008) (quoting Computer Assocs. Int’l, Inc. v. Altai, Inc., 982 F.2d 693, 716 (2d Cir.1992)); see also Medtech Prods. Inc. v. Ranir, LLC, 596 F.Supp.2d 778, 817 (S.D.N.Y.2008) (“A state law claim is not preempted if the extra element required by the state law claim changes the nature of the action so that it is qualitatively different from a copyright or patent infringement claim.” (internal quotation marks and brackets omitted) (emphasis in original)); Atrium Group De Ediciones Y Publicaciones, S.L. v. Harry N. Abrams, Inc., 565 F.Supp.2d 505, 509-10 (S.D.N.Y.2008) (“[T]he only ‘extra element’ that avoids preemption for a state-created cause of action is something that is ‘required instead of or in addition to the acts of reproduction, performance, distribution or display.’ ” (quoting Computer Assocs., 982 F.2d at 716)). “An action ‘will not be saved from preemption by elements such as awareness or intent, which alter the action’s scope but not its nature.’ ” Gusler, 580 F.Supp.2d at 316 (quoting Computer Assocs., 982 F.2d at 717); see also Am. Movie Classics Co. v. Turner Entm’t Co., 922 F.Supp. 926, 931 (S.D.N.Y.1996) (same). 1. Count Two: Hot News Misappropriation The Parties are in agreement on the legal standard governing Plaintiffs’ hot news claim. Plaintiffs rely on Associated Press, which states that “[a] cause of action for misappropriation of hot news remains viable under New York law, and the Second Circuit has unambiguously held that it is not preempted by federal law.” Id. at 461 (citing NBA 105 F.3d at 845, and Fin. Info.," }, { "docid": "3136143", "title": "", "text": "breach of contract claims, including a breach of confidentiality agreement, were not preempted because they involved “extra elements”); Smith v. Weinstein, 578 F.Supp. 1297, 1307-08 (S.D.N.Y.1984) (holding that, while any claim that rested not on the actual breach of the contract but rather on unauthorized copying was preempted, the breach of contract claims focusing on rights such as confidentiality and payment for ideas were not preempted); see also 1 Nimmer § 1.01[B][l][a]; but see Arpaia v. Anheuser-Busch Cos., Inc., 55 F.Supp.2d 151 (W.D.N.Y.1999) (holding that the plaintiffs claim of breach of implied contract was preempted where the complaint stated that the claim was based on the defendant’s alleged use of the copyrighted works); American Movie Classics Co. v. Turner Entertainment Co., 922 F.Supp. 926 (S.D.N.Y.1996) (holding that breach of contract claim was preempted where the express contract governed rights equivalent to those under the Copyright Act); Wolff v. Inst. of Elec. and Elecs. Eng’rs., Inc., 768 F.Supp. 66, 69 (S.D.N.Y.1991) (holding that the breach of contract claim was preempted where the alleged breach was an infringement of the plaintiffs copyright). While many courts have held certain contract claims not to be preempted by federal copyright law, it is important to note that not all of these holdings are based on the same principles. For example, some cases, such as Architectronics, appear to stand for the broad proposition that it is the promise inherent in contract arrangements that is the “extra element” that saves contract claims from preemption. Under this theory, “a breach of contract claim is not preempted even if the contract involves the rights granted to copyright owners under the Copyright Act” because, unlike claims for copyright infringement, claims based on a contract will involve the extra element of a promise by one party to another. Architectronics, 935 F.Supp. at 439 (interpreting and endorsing the principle expressed in Brignoli, 645 F.Supp. at 1205). Other holdings are more narrow. For example, in Nat’l Car, the court explicitly avoided deciding the broader issue, and rested its holding on the determination that the contract right in question was not equivalent to any" }, { "docid": "14051556", "title": "", "text": "every contract is sufficient to establish an ‘extra element.’ ” BroadVision Inc. v. Gen. Elec. Co., No. 08-CV-1489, 2008 WL 4684114, at *4 (S.D.N.Y. Oct. 15, 2008). And “[c]ourts in this district have continued to disagree how to analyze preemption of breach of contract claims.” BanxCorp v. Costco Wholesale Corp., 723 F.Supp.2d 596, 614 (S.D.N.Y.2010). Some courts, following Architectronics, Inc. v. Control Systems, Inc., 935 F.Supp. 425 (S.D.N.Y.1996) (Mukasey, J.), have held that “the ‘extra element’ that saves a contract claim from preemption is the promise itself.” Id. at 439 (quoting Brignoli v. Balch Hardy & Scheinman, Inc., 645 F.Supp. 1201, 1205 (S.D.N.Y.1986)). See BanxCorp, 723 F.Supp.2d at 614-617 (Karas, J.) (claim that licensee distributed and used copyrighted financial indexes in breach of limited, non-transferable license was not preempted); eScholar, LLC v. Otis Educ. Sys., Inc., 387 F.Supp.2d 329, 332-33 (S.D.N.Y.2005) (claim that licensee failed to pay royalties or permit licensor audits under an agreement licensing a copyrighted data compilation was not preempted); Sharp v. Patterson, No. 03-CV-8772, 2004 WL 2480426, at *7-*8 (S.D.N.Y. Nov. 3, 2004) (Lynch, J.) (claim that author used scenes written by plaintiff without attribution or compensation as allegedly required by an agreement between them was not preempted); Grauer v. Deutsch, No. 01- CV-8672, 2002 WL 81288937, at *2 (S.D.N.Y. Oct. 11, 2002) (Kaplan, J.) (claim to attribution as co-author pursuant to an agreement was not preempted); Katz Dochrermann & Epstein, Inc. v. Home Box Office, No. 97-CV-7763, 1999 WL 179603, at *4 (S.D.N.Y Mar. 31, 1999) (“KDE’s allegation that HBO made an implied promise to pay for its idea is entirely separate and apart from any claim for copyright infringement involving the literary work. The court finds that KDE’s claim for breach of implied promise to pay is not preempted.”); Architectronics, 935 F.Supp. at 439-441 (claim that licensee released software based on copyrighted code that was the subject of a limited, exclusive license requiring royalty payments was not preempted). Cf. Cf. Gusler v. Fischer, 580 F.Supp.2d 309, 319 (S.D.N.Y.2008) (claim for violation of nondisclosure agreement was not preempted because it was “premised on the existence" }, { "docid": "8266203", "title": "", "text": "of confidentiality can be different in kind from copyright infringement and are not necessarily preempted by Section 301 of the Copyright Act. Id. With regard to claims for misappropriation of trade secrets, the Second Circuit has held that where the plaintiffs claims are “grounded upon a defendant’s breach of a duty of trust or confidence to the plaintiff through improper disclosure of confidential information ... [t]he defendant’s breach of duty is the gravamen of such trade secret claims and supplies the ‘extra element’ that qualitatively distinguishes such trade secret causes of action from claims for copyright infringement that are based solely on copying.” Computer Assocs. Int’l, Inc. v. Altai, Inc., 982 F.2d 693, 717 (2d Cir.1992). Gusler’s trade secrets claim is, therefore, not preempted. Similarly, as Gusler’s breach of contract claim against Fischer is based upon Fischer’s alleged breach of his duties under the NDA, see Compl. ¶¶ 51-54, 59, it is premised on the existence of a allegations beyond mere reproduction, is qualitatively different from the copyright infringement claim, and, therefore, is not preempted. With regard to the unjust enrichment claim against Fischer, to the extent that it is based on the allegations of copying underlying the copyright claim, it is preempted by the Copyright Act. See, e.g., Briapatch, 373 F.3d at 306. To the extent that is based on Fischer’s alleged breach of the NDA, it arises out the same facts and alleges the same harm as the breach of contract claim, and therefore must be dismissed as duplicative. See Vitrano v. State Farm Ins. Co., No. 08 Civ. 103 (JGK), 2008 WL 2696156, *3, 2008 U.S. Dist. LEXIS 51787, at *11 (S.D.N.Y. July 7, 2008) (“[W]here there is an enforceable written contract governing the particular subject matter, claims based on quasi-contract theories like unjust enrichment do not provide a distinct basis for recovery.”) (citing Spanierman Gallery, PSP v. Love, No. 03 Civ. 3188, 2003 WL 22480055, at *4, 2003 U.S. Dist. LEXIS 19511, at *13 (S.D.N.Y. Oct. 31, 2003)). The Unjust Enrichment and Misappropriation of Trade Secrets Claims Against Guerreri are Dismissed The misappropriation of trade secrets" }, { "docid": "6153958", "title": "", "text": "Five: Breach of Contract Plaintiffs allege breach of contract (against Capital One only) on the basis of Capital One’s alleged distribution and use of the BanxQuote Indices beyond that allowed by the License Agreement, and in violation of promises not to distribute contained within the License Agreement. (SAC ¶¶ 146, 150.) Defendants argue that Plaintiffs’ claim of breach of contract is preempted. (Defs.’ Mem. 17.) The only “extra element” that Plaintiffs identify is the promise inherent in the License Agreement itself. (Pis.’ Mem. 16.) Defendants acknowledge the existence of the promise, but argue that there is conflicting case law within the Second Circuit as to whether the promise inherent in a contract is sufficient to defeat preemption and, of course, argue that the Court should follow the cases which hold that the promise does not defeat preemption. (Defs.’ Mem. 18.) There is, indeed, an intra-district split that the Second Circuit has not yet resolved. Compare Am. Movie Classics Co., 922 F.Supp. at 931 (holding that “a breach of contract claim is preempted if it is merely based on allegations that the defendant did something that the copyright laws reserve exclusively to the plaintiff’) with Architectronics, Inc. v. Control Sys., Inc., 935 F.Supp. 425, 439 (S.D.N.Y. 1996) (declining “to follow the formulation applied in American Movie,” and holding that “the extra element that saves a contract claim from preemption is the promise itself’ (internal quotation marks omitted)). Thus, precedent would seem to endorse two contradictory hard-line rules. One, from American Movie Classics, holding that a breach of contract claim is always preempted if the promise that the plaintiff seeks to enforce is a right guaranteed by the Copyright Act, and one, from Architectronics, stating that breach of contract claims need not be preempted. Courts in this district have continued to disagree as to how to analyze preemption of breach of contract claims. See, e.g., BroadVision, Inc. v. Gen. Elec. Co., No. 08-CV-1489, 2008 WL 4684114, at *4 (S.D.N.Y. Oct. 15, 2008) (holding that a breach of contract action was preempted when the plaintiff alleged that the defendant had used plaintiffs software" }, { "docid": "21990096", "title": "", "text": "they necessarily involve the additional element of a promise to perform the contract. See e.g. Wrench LLC v. Taco Bell Corp., 256 F.3d 446, 457 (6th Cir.2001); ProCD, Inc., 86 F.3d at 1454 ; Architectronics, Inc. v. Control Sys., Inc., 935 F.Supp. 425, 438 (S.D.N.Y.1996); Kabehie v. Zoland, 102 Cal.App.4th 513, 525, 125 Cal.Rptr.2d 721 (2002); see also eScholar, LLC v. Otis Educ. Sys., Inc., 387 F.Supp.2d 329, 332 (S.D.N.Y.2005) (noting a division in the district courts of the Second Circuit on the issue of “whether the promise inherent in any agreement, by itself, provides the extra element necessary to make a breach of contract claim qualitatively different from a copyright infringement claim.”). That proposition has been criticized by courts as an elevation of form over substance. Can, for example, a breach of contract claim arising out of a bare promise not to reproduce or distribute copies of a copyrighted work be said to be qualitatively different from a copyright infringement action for the violation of the exclusive rights of reproduction and distribution granted to the copyright holder by 17 U.S.C. § 106? See e.g. Wrench, 256 F.3d at 457 (“Under that rationale, a contract which consisted only of a promise not to reproduce the copyrighted work would survive preemption even though it was limited to one of the exclusive rights enumerated in 17 U.S.C. § 106.”); Kabehie, 102 Cal.App.4th at 526, 125 Cal.Rptr.2d 721 (“If the promise was simply to refrain from copying the material or infringe the rights protected by copyright, then the promisor has promised nothing more than that which was already required under federal copyright law.”). In such a case the “mere act” of reproduction or distribution would seem to infringe the state-created right. At least one federal court in the Fifth Circuit has held that a contract claim can be preempted only insofar as it is based on “the same types of allegations that would support a claim of copyright infringement.” Tavormina v. Evening Star Prods., Inc., 10 F.Supp.2d 729, 734 (S.D.Tex.1998) (finding plaintiffs’ contract claim preempted to the extent it was based on defendants’" }, { "docid": "6153959", "title": "", "text": "merely based on allegations that the defendant did something that the copyright laws reserve exclusively to the plaintiff’) with Architectronics, Inc. v. Control Sys., Inc., 935 F.Supp. 425, 439 (S.D.N.Y. 1996) (declining “to follow the formulation applied in American Movie,” and holding that “the extra element that saves a contract claim from preemption is the promise itself’ (internal quotation marks omitted)). Thus, precedent would seem to endorse two contradictory hard-line rules. One, from American Movie Classics, holding that a breach of contract claim is always preempted if the promise that the plaintiff seeks to enforce is a right guaranteed by the Copyright Act, and one, from Architectronics, stating that breach of contract claims need not be preempted. Courts in this district have continued to disagree as to how to analyze preemption of breach of contract claims. See, e.g., BroadVision, Inc. v. Gen. Elec. Co., No. 08-CV-1489, 2008 WL 4684114, at *4 (S.D.N.Y. Oct. 15, 2008) (holding that a breach of contract action was preempted when the plaintiff alleged that the defendant had used plaintiffs software in ways not permitted by the license agreement); Gusler, 580 F.Supp.2d at 319 (holding that “alleged breach of [defendant’s] duties under [a non-disclosure agreement] ... [was] premised on the existence of [ ] allegations beyond mere reproduction” and, hence, not preempted); Price v. Fox Entm’t Group, Inc., 473 F.Supp.2d 446, 451, 460-61 (S.D.N.Y.2007) (holding that a breach of contract claim seeking to enforce an “alleged failure to treat [intervening plaintiff] as a co-author and to account to him for profits” was preempted); eScholar, LLC v. Otis Educ. Sys., Inc., 387 F.Supp.2d 329, 332-33 (S.D.N.Y.2005) (agreeing with Architectronics, but holding that a breach of contract claim was preempted to the extent that it “seeks to enforce [plaintiffs exclusive right to reproduce and distribute its work,” and not preempted “to the extent it seeks to enforce contractually guaranteed rights to audit books and receive royalty fees”); Sha'rp v. Patterson, No. 03-CV-8772, 2004 WL 2480426, at *7-8 (S.D.N.Y. Nov. 3, 2004) (citing the American Movie Classics test, and holding that a breach of contract claim was not preempted" }, { "docid": "14051560", "title": "", "text": "breach of the terms of the contract but on Weinstein’s having copied his property, the KKK script, in making ‘Stir Crazy,’ it is of course preempted.”). “The crux of the dispute between the parties, therefore, is whether the promise inherent in any agreement, by itself, provides the extra element necessary to make a breach of contract claim qualitatively different from a copyright infringement claim.” eScholar, LLC, 387 F.Supp.2d at 332. The Court finds that while the answer might be yes in some eases, in the circumstances of this case, the answer is no. In reaching that conclusion, the Court begins from the premise that whether contract claims are preempted by the Copyright Act does not lend itself to a bright-line rule. Rather, whether a given contractual promise renders a claim qualitatively different than a copyright claim must depend on what the promise is. The Second Circuit has instructed that preemption turns on “what [the] plaintiff seeks to protect, the theories in which the matter is thought to be protected and the rights sought to be enforced.” Computer Assocs. Int'l, 982 F.2d at 716. A categorical rule that “the extra element that saves a contract claim from preemption is the promise itself,” Architectronics, 935 F.Supp. at 439, provides mere lip service to that instruction. As the court in American Movie Classics Company seemed to grasp, without referring to what the defendant has promised, a court cannot determine whether, by allegedly breaking the promise, the defendant has engaged in conduct for which the Copyright Act already provides the defendant relief: [A] breach of contract claim is preempted if it is merely based on allegations that the defendant did something that the copyright laws reserve exclusively to the plaintiff (such as unauthorized reproduction, performance, distribution, or display). However, if the breach of contract claim is based on allegations that the parties’ contract creates a right not existing under copyright law — -a right based upon a party’s contractual promise — and the plaintiff is suing to protect that contractual right, then the claim is not preempted. 922 F.Supp. at 931. Cf. Smith, 578" }, { "docid": "16670651", "title": "", "text": "preempted by Section 301. Computer Associates Intl. Inc. v. Altai, Inc., 982 F.2d 693, 716 (2d Cir.1992) (citation omitted). However, if the state cause of action requires an “ ‘extra element’ ... ‘instead of or in addition to the acts of reproduction, performance, distribution or display,’ ” then the cause of action is not preempted. Id. (quoting 1 Nimmer, supra, § 1.01[B], at 1-14-15). “In the Second Circuit, it is well settled that claims for tortious interference based on the unauthorized publication of a work protected by the Copyright Act are preempted.” American Movie Classics Co. v. Turner Entertainment Co., 922 F.Supp. 926, 932 (S.D.N.Y.1996). That a tortious interference claim requires the plaintiff to plead the additional elements of awareness and intentional interference, which are not elements of a copyright claim, “goes merely to the scope of the right; it does not establish qualitatively different conduct on the part of the infringing party, nor a fundamental nonequivalence between the state and federal rights implicated.” Harper & Row Publishers, Inc. v. Nation Enterprises, 723 F.2d 195, 201 (2d Cir.1983), rev’d on other grounds, 471 U.S. 539, 105 S.Ct. 2218, 85 L.Ed.2d 588 (1985). The gravamen of Plaintiffs tortious interference claim is an alleged violation' of Plaintiffs exclusive rights under the Copyright Act. Plaintiff alleges that its contracts with Hall and Nash “were intended to reserve to Titan the exclusive ownership of, and right to portray, the character RAZOR RAMON in perpetuity” and “to reserve to Titan, in perpetuity, the exclusive ownership of, and right to portray, the character DIESEL.” Am. Compl. ¶¶24, 38. Plaintiff claims that Defendants tortiously interfered with Plaintiffs contractual relationships by causing Hall and Nash to portray the copyrighted characters for Defendants. Id. ¶¶ 176-78, 185-87. The claim really alleges the unauthorized reproduction, distribution, performance or display by Hall, Nash and Defendants, in violation of Plaintiffs exclusive rights to the copyright. Accordingly, Plaintiffs tortious interference claim is preempted by the Copyright Act. Defendants’ motion to dismiss Counts VII and VIII is granted. D. CUTPA (Count XI) Defendants move to dismiss Count XI on the basis that (1) Section" }, { "docid": "14051555", "title": "", "text": "question. This requirement “is satisfied only when the state-created right may be abridged by an act that would, by itself, infringe one of the exclusive rights provided by federal copyright law.” Id. (citing Computer Assocs. Int'l, 982 F.2d at 716). That is, (1) “the state law claim must involve acts of reproduction, adaptation, performance, distribution or display”; and (2) “the state law claim must not include any extra elements that make it qualitatively different from a copyright infringement claim.” Briarpatch Ltd., 373 F.3d at 305. As to the “extra element” requirement, courts examine “what [the] plaintiff seeks to protect, the theories in which the matter is thought to be protected and the rights sought to be enforced.” Computer Assocs. Int’l, 982 F.2d at 716. Yet the Second Circuit has held that courts must “take a restrictive view of what extra elements transform an otherwise equivalent claim into one that is qualitatively different from a copyright infringement claim.” Briarpatch Ltd., 373 F.3d at 306. “The Court of Appeals has not addressed whether the promise inherent in every contract is sufficient to establish an ‘extra element.’ ” BroadVision Inc. v. Gen. Elec. Co., No. 08-CV-1489, 2008 WL 4684114, at *4 (S.D.N.Y. Oct. 15, 2008). And “[c]ourts in this district have continued to disagree how to analyze preemption of breach of contract claims.” BanxCorp v. Costco Wholesale Corp., 723 F.Supp.2d 596, 614 (S.D.N.Y.2010). Some courts, following Architectronics, Inc. v. Control Systems, Inc., 935 F.Supp. 425 (S.D.N.Y.1996) (Mukasey, J.), have held that “the ‘extra element’ that saves a contract claim from preemption is the promise itself.” Id. at 439 (quoting Brignoli v. Balch Hardy & Scheinman, Inc., 645 F.Supp. 1201, 1205 (S.D.N.Y.1986)). See BanxCorp, 723 F.Supp.2d at 614-617 (Karas, J.) (claim that licensee distributed and used copyrighted financial indexes in breach of limited, non-transferable license was not preempted); eScholar, LLC v. Otis Educ. Sys., Inc., 387 F.Supp.2d 329, 332-33 (S.D.N.Y.2005) (claim that licensee failed to pay royalties or permit licensor audits under an agreement licensing a copyrighted data compilation was not preempted); Sharp v. Patterson, No. 03-CV-8772, 2004 WL 2480426, at *7-*8 (S.D.N.Y. Nov." }, { "docid": "5475248", "title": "", "text": "did no more than provide a list of examples that did not purport to be exhaustive.” Architectronics, 935 F.Supp. at 441. Based upon the legislative history, all indications are that Congress, despite deleting the examples of non-equivalence, viewed those examples — including breaches of trust — as illustrative of nonequivalent, non-preempted state law rights. As discussed below, case law accords with this view. 2. Case Law As explained above, the key to the § 301 preemption analysis is whether the state law claim is based upon an extra element that makes it qualitatively different from an infringement claim. In applying the extra element test, courts generally have found that the examples of non-equivalent state law rights listed in the original version of § 301(b)(3) are not preempted by the Copy right Act. For example, contract claims survive preemption to the extent that they in7 volve a breach of a promise, an element not found in infringement claims. See Taquino v. Teledyne Monarch Rubber, 893 F.2d 1488, 1501 (5th Cir.1990) (citing Smith v. Weinstein, 578 F.Supp. 1297 (S.D.N.Y.), aff'd, 738 F.2d 419 (2d Cir.1984)); Architectronics, 935 F.Supp. at 438; American Movie Classics Co. v. Turner Entertainment Co., 922 F.Supp. 926, 931 (S.D.N.Y.1996); Brignoli v. Balch Hardy & Scheinman, Inc., 645 F.Supp. 1201, 1205 (S.D.N.Y.1986); 1 Nimmer § 1.0 l[B][l][a], at 1-15 to 1 — 16. Here, Masudaya contends that OSP breached a duty of trust in assigning the Aqua World copyright to SK&I. Specifically, Masudaya asserts (1) that OSP owed it a duty of trust based upon an express trust, or, alternatively, (2) that a constructive trust should be established based upon its confidential relationship with OSP and OSP’s implied promise to hold the copyright in trust. A breach of a duty of trust or of a confidential promise constitutes an extra element that qualitatively distinguishes state law trust claims from copyright infringement claims. See 1 Nimmer § 1.01[B][l][b], at 1-19 (“A breach of trust requires the existence of a trust relationship, which is of course- not a prerequisite to a copyright infringement action.”) (citing Davis & Davis v. S &" }, { "docid": "14051561", "title": "", "text": "enforced.” Computer Assocs. Int'l, 982 F.2d at 716. A categorical rule that “the extra element that saves a contract claim from preemption is the promise itself,” Architectronics, 935 F.Supp. at 439, provides mere lip service to that instruction. As the court in American Movie Classics Company seemed to grasp, without referring to what the defendant has promised, a court cannot determine whether, by allegedly breaking the promise, the defendant has engaged in conduct for which the Copyright Act already provides the defendant relief: [A] breach of contract claim is preempted if it is merely based on allegations that the defendant did something that the copyright laws reserve exclusively to the plaintiff (such as unauthorized reproduction, performance, distribution, or display). However, if the breach of contract claim is based on allegations that the parties’ contract creates a right not existing under copyright law — -a right based upon a party’s contractual promise — and the plaintiff is suing to protect that contractual right, then the claim is not preempted. 922 F.Supp. at 931. Cf. Smith, 578 F.Supp. at 1307 (“To the extent plaintiff rests his contract claim not on breach of the terms of the contract but on Weinstein’s having copied his property ... it is of course preempted.... But plaintiff also claims that Weinstein agreed, expressly or implicitly, to pay him for the value of his ideas if she decided to use them.... Rights under such an agreement are qualitatively different from copyright claims, and their recognition creates no monopoly in the ideas involved.”). Indeed, the leading treatise on copyright law endorses the position that “pre-emption should be found absent to the extent that a breach of contract cause of action alleges more than simply reproduction (or adaptation, distribution, etc.) of a copyrighted work.” 1 Nimmer on Copyright § 1.01[B][l][a][i]. That treatise argues that “causes of causes of action ... denominated [as contract claims] at times may essentially allege nothing other than derogation of rights under copyright.” Id. In those eases, “a breach of contract cause of action can serve as a subterfuge to control nothing other than the reproduction," }, { "docid": "14051559", "title": "", "text": "473 F.Supp.2d 446, 460-61 (S.D.NY.2007) (Scheindlin, J.) (claim that author failed to pay profits and attribute passages to the plaintiff was preempted in contrast to quantum meruit claim for “compensation for work [plaintiff] contributed to the screenplay that could, in theory, be considered separate and apart from ownership” and was “not necessarily preempted”); eScholar LLC, 387 F.Supp.2d at 332-33 (adopting recommendation that claim that licensee violated limits in exclusive license on distribution and reproduction of copyrighted work was not preempted); Grauer, 2002 WL 31288937, at *2 (claim for share of proceeds from coauthored work was preempted); Cooper v. Sony Records Int’l, No. 00-CV-233, 2001 WL 1223492, at *5 (S.D.N.Y Oct. 15, 2001) (claim that licensee producer of music copyrighted in plaintiff artists’ names had exploited music beyond scope of license was preempted); Am. Movie Classics Co., 922 F.Supp. at 926, 931-2 (claim that licensor copyright owner showed films that had been exclusively licensed for showing by the plaintiff was preempted); Smith, 578 F.Supp. at 1307 (“To the extent plaintiff rests his contract claim not on breach of the terms of the contract but on Weinstein’s having copied his property, the KKK script, in making ‘Stir Crazy,’ it is of course preempted.”). “The crux of the dispute between the parties, therefore, is whether the promise inherent in any agreement, by itself, provides the extra element necessary to make a breach of contract claim qualitatively different from a copyright infringement claim.” eScholar, LLC, 387 F.Supp.2d at 332. The Court finds that while the answer might be yes in some eases, in the circumstances of this case, the answer is no. In reaching that conclusion, the Court begins from the premise that whether contract claims are preempted by the Copyright Act does not lend itself to a bright-line rule. Rather, whether a given contractual promise renders a claim qualitatively different than a copyright claim must depend on what the promise is. The Second Circuit has instructed that preemption turns on “what [the] plaintiff seeks to protect, the theories in which the matter is thought to be protected and the rights sought to be" }, { "docid": "7827658", "title": "", "text": "defendants breached their contract with plaintiff. However, that does not end the matter. Section 301 of the Copyright Act preempts any and all state law rights that “may be abridged by an act which, in and of itself, would infringe one of the exclusive rights provided by federal copyright law”. Computer Associates Int’l., Inc. v. Altai, 982 F.2d 693, 716 (2d Cir.1992). Of course, state law claims (such as breach of contract claims) are not preempted where the claim implicates an “extra element” beyond the acts of reproduction, performance, distribution or display. There is a split among my brothers and sisters in the District Court as to whether a breach of contract claim can never be preempted, because the promise inherent in every contract automatically provides the “extra element,” see, e.g. Architectronics, Inc. v. Control Systems, Inc., 935 F.Supp. 425 (S.D.N.Y.1996), citing Nimmer on Copyrights, § 1.01[B][1][a]; or whether a promise alone is insufficient to save a breach of contract claim that asserts only that defendants did something that is reserved to the holder of a copyright, see American Movie Classics v. Turner Entertainment Co., 922 F.Supp. 926 (S.D.N.Y.1996). The Second Circuit as not yet weighed in with its opinion on this question. It is, however, a question I need not reach, if, in fact, Spar-aeo’s contract does more than merely prohibit defendants from derogating plaintiffs copyright (assuming he has one). The parties have not briefed this issue— possibly because they, who are more familiar with the contract than I, do not see any preemption problem here — and so I will give them leave to do so. If I am convinced either that the Architectronics view is correct or that this contract gives Spara-co rights other than his copyright, then I will direct entry of judgment for plaintiff on his fourth claim, with damages to abide trial. 5. Motion for Preliminary Injunction Plaintiffs motion for a preliminary injunction is denied, as there is no showing of irreparable injury. Obviously, it is too late to prevent construction of the building based on the allegedly infringing drawings, which is the injunctive" }, { "docid": "9962111", "title": "", "text": "not arise merely by operation of state law). In American Movie Classics Co. v. Turner Entertainment Co., 922 F.Supp. 926, 931 (S.D.N.Y.1996), a Court in this District held that a breach of contract claim will escape preemption only if there is a contractual promise and the promise involves a right not existing under copyright law. Id. at 931. There, the parties had signed an agreement granting the plaintiff an exclusive license to exhibit certain motion pictures owned by the defendant. The plaintiff alleged that the defendant violated the exclusive license by exhibiting some of the licensed films on its oivn television networks. The Court acknowledged that the claim was based on an express promise rather than copyright protection, but found the claim preempted because the contract governed “rights equivalent to the Copyright Act’s exclusive right of public performance.” Id. at 932. I respectfully decline to follow the formulation applied in American Movie. As was explained in Brignoli v. Balch Hardy & Scheinman, Inc., 645 F.Supp. 1201 (S.D.N.Y. 1986) — one of the cases cited in American Movie as authority for the test there applied — the “extra element” that saves a contract claim from preemption is the promise itself. 645 F.Supp. at 1205. In Brignoli, the plaintiff sued for unauthorized reproduction and use of a copyrighted computer program. The Court stated that a state tort law claim for mere unauthorized use of the program would be preempted. The plaintiffs claims, however, involved “an element beyond unauthorized reproduction and use — a promise to pay plaintiff for use of his product.” Id. Brignoli stands for the proposition that a breach of contract claim is not preempted even if the contract involves the rights granted to copyright owners under the Copyright Act. Thus, Brignoli is at odds with American Movie. The American Movie Court relied also on Smith v. Weinstein, 578 F.Supp. 1297 (S.D.N.Y.), aff'd without reported opinion, 738 F.2d 419 (2d Cir.1984). The plaintiff in Smith sued for unauthorized reproduction of a copyrighted movie script. One of the claims in the complaint was styled breach of contract, and purportedly was based" }, { "docid": "14051558", "title": "", "text": "of allegations beyond mere reproduction, [wa]s qualitatively different from the copyright infringement claim, and, therefore, [wa]s not preempted”); Smith v. Weinstein, 578 F.Supp. 1297, 1307 (S.D.N.Y.1984) (“A party may by contract agree to pay for ideas, even though such ideas could not be protected by copyright law. Rights under such an agreement are qualitatively different from copyright claims, and their recognition creates no monopoly in the ideas involved.”). Other courts, however, following American Movie Classics Company v. Turner Entertainment Co., 922 F.Supp. 926 (S.D.NY.1996), have held that “a breach of contract claim is preempted if it is merely based on allegations that the defendant did something that the copyright laws reserve exclusively to the plaintiff (such as unauthorized reproduction, performance, distribution, or display).” Id. at 931. See BroadVision, 2008 WL 4684114, at *4 (claim that licensee of copyrighted software had exceeded usage limits under non-exclusive license agreement was preempted because “it does not allege that [defendant] breached a promise to pay, to allow an audit, or any other promise”); Price v. Fox Entm’t Group, Inc., 473 F.Supp.2d 446, 460-61 (S.D.NY.2007) (Scheindlin, J.) (claim that author failed to pay profits and attribute passages to the plaintiff was preempted in contrast to quantum meruit claim for “compensation for work [plaintiff] contributed to the screenplay that could, in theory, be considered separate and apart from ownership” and was “not necessarily preempted”); eScholar LLC, 387 F.Supp.2d at 332-33 (adopting recommendation that claim that licensee violated limits in exclusive license on distribution and reproduction of copyrighted work was not preempted); Grauer, 2002 WL 31288937, at *2 (claim for share of proceeds from coauthored work was preempted); Cooper v. Sony Records Int’l, No. 00-CV-233, 2001 WL 1223492, at *5 (S.D.N.Y Oct. 15, 2001) (claim that licensee producer of music copyrighted in plaintiff artists’ names had exploited music beyond scope of license was preempted); Am. Movie Classics Co., 922 F.Supp. at 926, 931-2 (claim that licensor copyright owner showed films that had been exclusively licensed for showing by the plaintiff was preempted); Smith, 578 F.Supp. at 1307 (“To the extent plaintiff rests his contract claim not on" }, { "docid": "469118", "title": "", "text": "defendants breached their contract by not compensating plaintiffs for displaying a copy of their house in the movie was preempted because it was “based upon the same types of allegations that would support a claim of copyright infringement.” Tavormina, 10 F.Supp.2d at 734. However, the court found that the portion of the claim alleging that the defendants failed to pay the plaintiffs for their time and inconvenience was based on “broader allegations, beyond Defendants’ mere copying and display of Plaintiffs’ house,” and therefore not preempted. Id. In American Movie Classics Co. v. Turner Entertainment Co., 922 F.Supp. 926 (S.D.N.Y.1996) the plaintiff alleged that the defendant breached the terms of an exclusive licensing agreement which provided the plaintiff with the exclusive right to display films. The court found that the exclusivity provision in the licensing agreement did not satisfy the extra element test because the plaintiff would have to show that it had exclusive rights to establish its copyright claim and the breach of contract claim was not qualitatively different from a copyright claim. See also American Movie Classics, 922 F.Supp. at 931-32; see also Wolff v. Institute of Elec. & Elec. Eng’rs, Inc., 768 F.Supp. 66, 69 (S.D.N.Y. 1991) (finding breach of- contract claim based upon written agreement preempted because claim based on the defendant’s use of the plaintiffs photograph was not qualitatively different from copyright action); Markogianis v. Burger King Corp., No. 95 CIV. 4627, 1997 WL 167113, at *5-6 (S.D.N.Y. Apr. 8, 1997) (concluding that the plaintiffs’ claim which “allege[d] that a breach of an implied-in-fact contract occurred when [the defendant] misappropriated” the plaintiffs idea was not “a qualitatively different cause of action than copyright infringement”). Plaintiffs rely, in part, on the Seventh Circuit’s decision in ProCD, in which the court of appeals reversed the district court’s determination that the plaintiffs breach of contract claim based upon a shrinkwrap license was preempted. The court held that “a simple two-party contract is not ‘equivalent to any of the exclusive rights within the general scope of copyright,’ ” based upon the following distinction: Copyright law forbids duplication, public performance, and" }, { "docid": "469117", "title": "", "text": "and, consequently, is preempted by federal law. Id. at 1528. In reaching its conclusion, the court distinguished two cases cited by the plaintiff, ProCD, Inc. v. Zeidenberg, 86 F.3d 1447 (7th Cir.1996), and National Car Rental System, Inc. v. Computer Associates International, Inc., 991 F.2d 426 (8th Cir.1993), which held that the contract claims asserted in those cases were not preempted, on the basis that those “cases involved written contracts that had specific promises that provided an ‘extra element’ beyond copyright law protections.” Id. (italics in original). Other courts have applied the same analysis used by the Endemol court in finding both express and implied in fact contracts preempted. In Tavormina v. Evening Star Productions, Inc., 10 F.Supp.2d 729 (S.D.Tex.1998) (mem.op.), the plaintiffs alleged that the defendants breached a contract to pay them for using a photograph of their home to make a replica for a movie and for their time and inconvenience in making their house available to the defendants. The court held that the portion of the plaintiffs’ claim which alleged that the defendants breached their contract by not compensating plaintiffs for displaying a copy of their house in the movie was preempted because it was “based upon the same types of allegations that would support a claim of copyright infringement.” Tavormina, 10 F.Supp.2d at 734. However, the court found that the portion of the claim alleging that the defendants failed to pay the plaintiffs for their time and inconvenience was based on “broader allegations, beyond Defendants’ mere copying and display of Plaintiffs’ house,” and therefore not preempted. Id. In American Movie Classics Co. v. Turner Entertainment Co., 922 F.Supp. 926 (S.D.N.Y.1996) the plaintiff alleged that the defendant breached the terms of an exclusive licensing agreement which provided the plaintiff with the exclusive right to display films. The court found that the exclusivity provision in the licensing agreement did not satisfy the extra element test because the plaintiff would have to show that it had exclusive rights to establish its copyright claim and the breach of contract claim was not qualitatively different from a copyright claim. See also" }, { "docid": "3136142", "title": "", "text": "would not otherwise exist); Taquino v. Teledyne Monarch Rubber, 893 F.2d 1488, 1501 (5th Cir.1990) (affirming district court’s holding that the enforcement of the contract in question was not preempted since the rights created under the contract were not equivalent to the exclusive rights under the copyright laws); Acorn Structures, Inc. v. Swantz, 846 F.2d 923, 926 (4th Cir.1988) (reversing district court’s holding that breach of contract claim was preempted); Katz Dochrermann & Epstein, Inc. v. Home Box Office, No. 97 Civ 7763(TPG), 1999 WL 179603 *4 (S.D.N.Y. March 31, 1999) (holding that the implied-in-fact contract claim was not preempted because the claim sought to enforce a promise to pay for use of plaintiff’s ideas, regardless of any subsequent rights plaintiff may have acquired under the Copyright Act); Architectronics, Inc. v. Control Syst. Inc., 935 F.Supp. 425, 438-41 (S.D.N.Y.1996) (holding that contract claim was not preempted because the contract claim contained the extra element of a promise by the defendant); Brignoli v. Batch Hardy and Scheinman, Inc., 645 F.Supp. 1201, 1204-06 (S.D.N.Y.1986) (holding that plaintiffs breach of contract claims, including a breach of confidentiality agreement, were not preempted because they involved “extra elements”); Smith v. Weinstein, 578 F.Supp. 1297, 1307-08 (S.D.N.Y.1984) (holding that, while any claim that rested not on the actual breach of the contract but rather on unauthorized copying was preempted, the breach of contract claims focusing on rights such as confidentiality and payment for ideas were not preempted); see also 1 Nimmer § 1.01[B][l][a]; but see Arpaia v. Anheuser-Busch Cos., Inc., 55 F.Supp.2d 151 (W.D.N.Y.1999) (holding that the plaintiffs claim of breach of implied contract was preempted where the complaint stated that the claim was based on the defendant’s alleged use of the copyrighted works); American Movie Classics Co. v. Turner Entertainment Co., 922 F.Supp. 926 (S.D.N.Y.1996) (holding that breach of contract claim was preempted where the express contract governed rights equivalent to those under the Copyright Act); Wolff v. Inst. of Elec. and Elecs. Eng’rs., Inc., 768 F.Supp. 66, 69 (S.D.N.Y.1991) (holding that the breach of contract claim was preempted where the alleged breach was an" }, { "docid": "14051557", "title": "", "text": "3, 2004) (Lynch, J.) (claim that author used scenes written by plaintiff without attribution or compensation as allegedly required by an agreement between them was not preempted); Grauer v. Deutsch, No. 01- CV-8672, 2002 WL 81288937, at *2 (S.D.N.Y. Oct. 11, 2002) (Kaplan, J.) (claim to attribution as co-author pursuant to an agreement was not preempted); Katz Dochrermann & Epstein, Inc. v. Home Box Office, No. 97-CV-7763, 1999 WL 179603, at *4 (S.D.N.Y Mar. 31, 1999) (“KDE’s allegation that HBO made an implied promise to pay for its idea is entirely separate and apart from any claim for copyright infringement involving the literary work. The court finds that KDE’s claim for breach of implied promise to pay is not preempted.”); Architectronics, 935 F.Supp. at 439-441 (claim that licensee released software based on copyrighted code that was the subject of a limited, exclusive license requiring royalty payments was not preempted). Cf. Cf. Gusler v. Fischer, 580 F.Supp.2d 309, 319 (S.D.N.Y.2008) (claim for violation of nondisclosure agreement was not preempted because it was “premised on the existence of allegations beyond mere reproduction, [wa]s qualitatively different from the copyright infringement claim, and, therefore, [wa]s not preempted”); Smith v. Weinstein, 578 F.Supp. 1297, 1307 (S.D.N.Y.1984) (“A party may by contract agree to pay for ideas, even though such ideas could not be protected by copyright law. Rights under such an agreement are qualitatively different from copyright claims, and their recognition creates no monopoly in the ideas involved.”). Other courts, however, following American Movie Classics Company v. Turner Entertainment Co., 922 F.Supp. 926 (S.D.NY.1996), have held that “a breach of contract claim is preempted if it is merely based on allegations that the defendant did something that the copyright laws reserve exclusively to the plaintiff (such as unauthorized reproduction, performance, distribution, or display).” Id. at 931. See BroadVision, 2008 WL 4684114, at *4 (claim that licensee of copyrighted software had exceeded usage limits under non-exclusive license agreement was preempted because “it does not allege that [defendant] breached a promise to pay, to allow an audit, or any other promise”); Price v. Fox Entm’t Group, Inc.," } ]

[ { "docid": "4089659", "title": "", "text": "(8th Cir.1980) (“A TILA violation occurs ... and the one-year limitations period begins to run, when credit is extended through the consummation of the transaction between the creditor and its customer without the required disclosures being made.”); Rust v. Quality Car Corral, Inc., 614 F.2d 1118, 1119-20 (6th Cir.1980); Bartholomew v. Northampton National Bank of Easton, 584 F.2d 1288, 1296 (3d Cir.1980); Waters v. Weyerhauser Mortgage Co., 582 F.2d 503, 505 (9th Cir.1978) (“There can be no violation of the Act until the transaction is consummated.”); Chevalier v. Baird Savings Ass’n, 371 F.Supp. 1282, 1284 (E.D.Pa.1974). Under the Act the Association was required to make disclosure before consummation of the new transaction — here the mortgage loan interest rate increase. 15 U.S.C. § 1639(b) (1976). There could be no violation, however, until this new transaction was consummated, the preexisting contractual relationship of the parties notwithstanding. Gary v. W.T. Grant Co., [1974-80 Transfer Binder] Consumer Credit Guide (CCH) ¶ 98,550, at 88,033 (N.D.Ga. Aug. 25, 1975) (where refinancing of loan was not agreed to by borrower, inadequate TILA disclosures in connection with the refinancing proposal did not violate the Act because the underlying transaction was never consummated). Under the applicable provision of Regulation Z, consummation occurs at “the time a contractual relationship is created between a creditor and a customer ... irrespective of the time of performance of either party.” 12 C.F.R. § 226.2(kk) (1982). This is in accord with the Federal Reserve staff position, as expressed in an informal opinion: “. .. consummation occurs when a creditor agrees to extend credit and the customer agrees to utilize that credit.” FRB Staff Opinion Letter No. 92, [Truth-in-Lending Special Releases 1969-74 Transfer Binder] Consumer Credit Guide (CCH) 130,147, at 66,061. The time of consummation, and not the time of dissemination of the inadequate disclosure statement, is the pivot on which a violation of the Act turns, since “the required disclosure under TILA [is] to be made as of the time that credit is extended ... and it is as of that time that the adequacy and accuracy of the disclosures are to" } ]

[ { "docid": "23498684", "title": "", "text": "created, no earlier than October 31, 1984. See Moor v. Travelers Insurance Co., 784 F.2d 632, 633 (5th Cir.1986) (credit transaction consummated and statute of limitations begins to run from “the moment a contractual relationship is created between a creditor and a customer”). Because this action was filed on April 18, 1987, the Coplins’ claim for rescission is timely under the statute. Second, in order to maintain an action for damages under TILA, 15 U.S.C. § 1640, the action must be brought “within one year from the occurrence of the violation.” 15 U.S.C. § 1640(e). The Coplins allege several violations which derive from the disclosures made to John Coplin on and around October 31, 1984. Therefore, as to each of these claimed TILA violations, the statute of limitations has run. The Coplins also argue that Fidelity wrongfully refused to allow them to rescind the loan transaction. The Coplins sent Fidelity a notice on November 3, 1986, stating that they wished to rescind the loan transaction in question. Fidelity, however, refused to allow the Coplins to rescind. If the Coplins are correct in their assertion that they were entitled to rescind the instant transaction, then Fidelity is liable for statutory damages based on the Coplins’ timely claim that Fidelity wrongfully denied their request to rescind the transaction. The Coplins’ entitlement to statutory damages under 15 U.S.C. § 1640 is, therefore, wholly dependent upon, and flows directly from, their entitlement to rescissory relief. We turn to this issue. b. Inaccuracy in Itemization of Amount Financed In the Coplin transaction, Fidelity erroneously disclosed that the amount given to John Coplin directly was $2,833.50 when in fact John Coplin only received $1,761.50. This error, as previously discussed, violated 12 C.F.R. § 226.18(c), requiring a creditor to state accurately the amount of any proceeds distributed directly to the consumer. However, as we noted above, this type of a violation of § 226.18(c) does not support a claim for rescission. This being so, the Coplins are not entitled to any relief based on Fidelity’s inaccurate disclosure of the amount given directly to John Coplin. This is" }, { "docid": "8353278", "title": "", "text": "7.) This conclusory allegation may relate to the averment in the TILA claim that Sierra Pacific failed to “disclose all finance charge details” and “the annual percentage rate based upon a properly calculated and disclosed finance charges and amounts financed.” Plaintiff does not, however, allege what facts were “purposely hidden” from Plaintiff to prevent discovery of his TILA claim. Plaintiffs allegation that the “facts surrounding this loan transaction were purposely hidden to prevent Plaintiff from discovering the true nature of the transaction and the documents” and “continue to be hidden from Plaintiff to this day” is a legal conclusion, and the complaint does not assert how the “hidden facts” prevented him from discovering the alleged TILA violations or how they relate to the alleged TILA violations committed by Sierra Pacific. Facts sufficient to invoke equitable tolling have not been alleged. Plaintiffs TILA claim for damages is time-barred absent equitable tolling. Defendant Sierra Pacific’s motion to dismiss, on the grounds that this claim is barred by the statute of limitations, is GRANTED WITH LEAVE TO AMEND. Plaintiff shall have one opportunity to allege what facts were hidden that prevented him from discovering his claim, and how those hidden facts relate to the TILA violations Sierra Pacific allegedly committed. 2. Rescission Claim Generally, TILA provides that a borrower has until midnight of the third business day following the consummation of the loan transaction to rescind the transaction. 15 U.S.C. § 1635(a). A borrower’s right of rescission is extended from three days to three years if the lender (1) fails to provide notice of the borrower’s right of rescission or (2) fails to make a material disclosure. See Reagen v. Aurora Loan Servs., No. 1:09-CV-00839-OWW-DLB, 2009 WL 3789997, at *6 (E.D.Cal. Nov. 10, 2009) (citing 12 C.F.R. § 226.23(a)(3)). Section 1635(f) of TILA provides: An obligor’s right of rescission shall expire three years after the date of consummation of the transaction or upon the sale of the property, whichever occurs first, notwithstanding the fact that the information and forms required under this section or any other disclosures required under this part have not" }, { "docid": "16806362", "title": "", "text": "the security interest) to rescind the loan transaction within three days following the latter of either; (1) consummation of the transaction; (2) delivery of the rescission notice; or (3) delivery of all material disclosures. See 15 U.S.C. § 1635(a); 12 C.F.R. § 226.23(a)(1)-(3). Regulation Z provides that for transactions eligible for rescission, the lender must provide the borrower with two copies of the notice to rescind. 12 C.F.R. § 226.23(b)(1). When the lender fails to provide the required notices or make the required disclosures, the borrower’s right to exercise rescission expires “three years after the date of consummation of the transaction or upon the sale of the property, whichever occurs first.” 15 U.S.C. § 1635(f). See Beach, 523 U.S. at 412, 118 S.Ct. 1408 (differentiating between right to rescission and right to sue for damages). Unlike a statutory damages claim against an assignee under § 1641(a), a rescission claim against an assignee under § 1641(c) may be brought even if there is no TILA violation apparent on the face of the loan documents. See Carrington v. HSBC Bank USA, N.A., 760 F.Supp.2d 589, 596 (E.D.Va.2010) (stating “[t]he clear language of [15 U.S.C. § 1641(c) ] indicates any consumer may have the right to rescind a transaction against any assignee to the same extent that she might rescind against the original creditor”). Here, Plaintiffs allege that the original creditor failed to give Plaintiffs the requisite copies of the notice of their right to rescind the loan at the time of closing. Am. Compl. at 2. Assuming this allegation is true, which the court is obligated to do at this stage, Plaintiffs’ right to rescind extended to three years after the September 2007 closing as against BAC. Plaintiffs purportedly timely exercised their statutory right to rescind on March 19, 2010 via what appears to be a self-drafted Notice of Right to Cancel naming both BAC and MERS as lenders. See Ex. C, Notice of Right to Cancel [DE-15.3]. Defendants do not acknowledge this claim. Section 1635(b) of TILA provides the framework for exercising the right of rescission. In particular, when a borrower" }, { "docid": "520209", "title": "", "text": "limited importance of the pleadings in federal practice. Bureerong v. Uvawas, 922 F.Supp. 1450, 1478 (C.D.Cal.1996). A motion to strike should not be granted unless it is absolutely clear that the matter to be stricken could have no possible bearing on the litigation. Lilley v. Charren, 936 F.Supp. 708, 713 (N.D.Cal.1996). ANALYSIS I. Motion to Dismiss Defendants seek to dismiss all claims alleged by plaintiffs against RMC and Chapman. Specifically, plaintiffs’ Second, Fifth, Sixth, Seventh, Tenth, Eleventh, Twelfth, and Thirteenth Claims for Relief. A. Plaintiffs’ Second Claim for Relief Plaintiffs’ Second Claim for Relief alleges that defendants violated TILA by 1) failing to provide plaintiffs with valid copies of the notice of right to rescind, and 2) inaccurately reporting finance charges, the amount financed, and the annual percentage rate in the required financial disclosures for the first loan agreement. (FAC ¶¶ 63-64.) Plaintiffs seek rescission of the loan agreements, actual and statutory-damages, and attorney fees. Defendants move to dismiss plaintiffs’ TILA claim on the basis that it is time barred. The declared purpose of TILA is “to assure a meaningful disclosure of credit terms so that the consumer will be able to compare more readily the various credit terms available to him and avoid the uninformed use of credit, and to protect the consumer against inaccurate and unfair credit billing and credit card practices.” 15 U.S.C. § 1601(a). Consequently, TILA mandates that creditors provide borrowers with clear and accurate disclosures of borrowers’ rights, finance charges, the amount financed, and the annual percentage rate. See, e.g., 15 U.S.C. §§ 1632, 1635,1638. 15 U.S.C. § 1635(a) provides that in the case of a consumer credit transaction in which the creditor acquires a security interest in property to be used as the principal residence of the obligor, the obligor “shall have the right to rescind the transaction until midnight of the third business day following the consummation of the transaction or the delivery of the information or rescission forms.” An obligor who exercises their right to rescind “is not liable for any finance or other charge, and any security interest given by the" }, { "docid": "16806361", "title": "", "text": "the[ ] essential elements of a TILA claim [but failed to] present sufficient factual matter, accepted as true, to render the legal conclusions and factual inferences supporting these elements plausible”). Moreover, even if Plaintiffs had provided sufficient factual allegations, Plaintiffs’ recovery of actual and statutory damages for the original creditor’s failure to provide unspecified disclosures before or during the closing held September 11, 2007 — for which BAC would be liable where the violations are “apparent” based on its “assignee” status — is barred by the one year statute of limitations as Plaintiffs did not initiate this action until March 23, 2010, almost two and a half years after the September 2007 closing. See 15 U.S.C. § 1640(e). Accordingly, TILA’s one year statute of limitations bars Plaintiffs’ damages claim for disclosure violations against BAC based on its status as the assignee and is thus DISMISSED WITH PREJUDICE. 3. Claims for Failure to Honor Rescission &for Rescission Next, the court considers Plaintiffs’ rescission claims under TILA. TILA permits mortgage borrowers (where their “principal dwelling” serves as the security interest) to rescind the loan transaction within three days following the latter of either; (1) consummation of the transaction; (2) delivery of the rescission notice; or (3) delivery of all material disclosures. See 15 U.S.C. § 1635(a); 12 C.F.R. § 226.23(a)(1)-(3). Regulation Z provides that for transactions eligible for rescission, the lender must provide the borrower with two copies of the notice to rescind. 12 C.F.R. § 226.23(b)(1). When the lender fails to provide the required notices or make the required disclosures, the borrower’s right to exercise rescission expires “three years after the date of consummation of the transaction or upon the sale of the property, whichever occurs first.” 15 U.S.C. § 1635(f). See Beach, 523 U.S. at 412, 118 S.Ct. 1408 (differentiating between right to rescission and right to sue for damages). Unlike a statutory damages claim against an assignee under § 1641(a), a rescission claim against an assignee under § 1641(c) may be brought even if there is no TILA violation apparent on the face of the loan documents. See Carrington" }, { "docid": "14275329", "title": "", "text": "Plaintiffs favor is warranted. Accordingly, I proceed to an analysis of Plaintiffs entitlement to the various forms of relief he seeks. A. Damages While Plaintiffs factual averments must be accepted as true, his assessment of the damages to which he is entitled need not be. As stated in his motion for default judgment, Plaintiff seeks $5,070.23 in total damages, including $2,000 in statutory damages under TILA and $3,070.23 in damages under Virginia usury law. I will examine these claims in turn. 1. Damages under TILA Congress enacted TILA in order to promote the informed use of credit. 15 U.S.C. § 1601(a). Indeed, the purpose of TILA is: to assure a meaningful disclosure of credit terms so that the consumer will be able to compare more readily the various credit terms available to him and avoid the uninformed use of credit, and to protect the consumer against inaccurate and unfair credit billing and credit card practices. Id. As a means of effectuating these ends, TILA requires creditors who engage in closed-end consumer credit transactions to disclose a long list of items, see 15 U.S.C. § 1638(a), and, unless otherwise specifically provided, TILA mandates that they do so before the credit is extended, id. § 1638(b); see also 12 C.F.R. § 226.17(b) (“The creditor shall make disclosures before consummation of the transaction.”). In the case at hand, Plaintiff alleges that Defendant failed to disclose the amount financed, 15 U.S.C. § 1638(a)(2)(A), the finance charge, id. § 1638(a)(3), the annual percentage rate, id. § 1638(a)(4), the total of payments, id. § 1638(a)(5), the payment schedule, id. § 1638(a)(6), and any applicable late fee, id. § 1638(a)(10). Accordingly, Plaintiff claims that Defendant violated TILA, and thus that Defendant is subject to statutory damages pursuant to TILA’s civil liability provision, which is found at 15 U.S.C. § 1640(a)(2). A creditor who fails to comply with certain requirements imposed by 15 U.S.C. § 1638 is, in an individual action, liable for “twice the amount of any finance charge in connection with the transaction.” 15 U.S.C. § 1640(a)(2)(A)(i). However, the Supreme Court of the United States has" }, { "docid": "12756007", "title": "", "text": "agreement. 15 U.S.C. § 1601; Joseph, supra, 532 F.2d at 90-91. Given this purpose, the ultimate nonenforceability of a credit agreement under state law should not be a defense to an action under the TILA for failure to disclose the information required by the act. We hold that the January 26 transaction was an extension of consumer credit to which the disclosure requirements of the TILA and Regulation Z applied. We note also that for the purposes of the limitations period on TILA actions defined by 15 U.S.C. § 1640(e), the relevant date is not December 2, 1977, as the district court implied, but January 26, 1978, the date on which Dryden assumed the Foster-Mitchell obligation: (kk) A transaction shall be considered consummated at the time a contractual relationship is created between a creditor and a customer . . . irrespective of the time of performance of either party. 12 C.F.R. § 226.2(kk). A TILA violation occurs, with respect to a closed-end transaction like this one, and the one-year limitations period begins to run, when credit is extended through the consummation of the transaction between the creditor and its customer without the required disclosures being made. Bartholomew v. Northampton Nat. Bank, 584 F.2d 1288 (3d Cir. 1978). We consider, finally, the district court’s holding that even if the TILA were applicable to the transaction between Dryden and Budke’s, Budke’s would be relieved of liability under 15 U.S.C. § 1640(b), which provides that: (b) A creditor has no liability under this section for any failure to comply with any requirement imposed under this part or Part E of this subchapter if within fifteen days after discovering an error, and prior to the institution of any action under this section or the receipt of written notice of the error, the creditor notifies the person concerned of the error and makes whatever adjustments in the appropriate account are necessary to insure that the person will not be required to pay a charge in excess of the amount or percentage rate actually disclosed. Budke’s did not plead or prove, with respect to any of" }, { "docid": "23498683", "title": "", "text": "three grounds for its decision. First, the district court found that Fidelity inaccurately itemized the amount financed by misstating on the TILA disclosure form the amount given directly to John Coplin. Second, the district court held that Fidelity violated the letter and the spirit of 15 U.S.C. § 1635 by delivering the loan proceeds check to John Coplin, and receiving his endorsement thereon, prior to the expiration of the three day rescission period. Finally, the district court determined that Fidelity failed to disclose certain finance charges in violation of 12 C.F.R. § 226.23(a)(3) n. 48. Fidelity attacks each of these grounds for liability and they will be dealt with in turn. a. Statute of Limitations We first examine the two relevant periods of limitations under TILA to determine if the Coplins’ TILA claims are time barred. First, under 15 U.S.C. § 1635(f) a borrower has three years after the date of consummation of the transaction within which to bring an action for rescission. In this case, the transaction was consummated, i.e., a contractual relationship was created, no earlier than October 31, 1984. See Moor v. Travelers Insurance Co., 784 F.2d 632, 633 (5th Cir.1986) (credit transaction consummated and statute of limitations begins to run from “the moment a contractual relationship is created between a creditor and a customer”). Because this action was filed on April 18, 1987, the Coplins’ claim for rescission is timely under the statute. Second, in order to maintain an action for damages under TILA, 15 U.S.C. § 1640, the action must be brought “within one year from the occurrence of the violation.” 15 U.S.C. § 1640(e). The Coplins allege several violations which derive from the disclosures made to John Coplin on and around October 31, 1984. Therefore, as to each of these claimed TILA violations, the statute of limitations has run. The Coplins also argue that Fidelity wrongfully refused to allow them to rescind the loan transaction. The Coplins sent Fidelity a notice on November 3, 1986, stating that they wished to rescind the loan transaction in question. Fidelity, however, refused to allow the Coplins to" }, { "docid": "16806353", "title": "", "text": "turns to Plaintiffs’ claims. A. TILA Claims TILA “has the broad purpose of promoting ‘the informed use of credit’ by assuring ‘meaningful disclosure of credit terms’ to consumers.” Ford Motor Credit Co. v. Milhollin, 444 U.S. 555, 559, 100 S.Ct. 790, 63 L.Ed.2d 22 (1980). See U.S.C. § 1601(a). Accordingly, creditors are required “to provide borrowers with clear and accurate disclosures of terms dealing with things like finance charges, annual percentage rates of interest, and the borrower’s rights.” Beach v. Ocwen Fed. Bank, 523 U.S. 410, 412, 118 S.Ct. 1408, 140 L.Ed.2d 566 (1998). With respect to TILA violations, Plaintiffs argue Defendants failed to (1) provide unspecified material disclosures regarding their loan, (2) include the required copies of the Notice of Right to Cancel form at the time Plaintiffs’ loan was consummated, and (3) honor Plaintiffs’ March 2010 rescission of the loan. Am. Compl. at 2, 5; Ex. C [DE-15.3]. Plaintiffs contend further that MERS “does not have standing as a Nominee” and that MERS “did not have legal authority to transfer” the note. Am. Compl. at 3-4. While the amended complaint is far from a model of clarity, these allegations suggest that the TILA-related issues before the court are whether the alleged non-disclosures and failure to provide the required notice preserved Plaintiffs’ right to rescind for three years, see 15 U.S.C. § 1635(f), and whether Plaintiffs have alleged that Defendants violated TILA’s rescission procedures by failing to adequately respond to their rescission notice, see id. § 1635(b). Defendants provide no substantive briefing, arguing only that they are not “creditors” within the meaning of TILA and the statute of limitations bars any claim under TILA for damages. 1. Liability of BAC and MERS under TILA Only creditors and assignees are subject to liability under TILA. See 15 U.S.C. §§ 1640, 1641(a). As a threshold matter, the court initially dispenses with the issue of whether Defendants qualify as creditors as defined by 15 U.S.C. § 1602(g) and 12 C.F.R. § 226.2(a)(17), as the amended complaint, like the original complaint, contains no allegations or inference that either MERS or BAG was the" }, { "docid": "16806359", "title": "", "text": "is cognizant that “[t]he equitable goal of rescission under TILA is to restore the parties to the ‘status quo ante.’ ” Am. Mortg. Network, Inc. v. Shelton, 486 F.3d 815, 820 (4th Cir.2007). Therefore, in light of the court’s granting Plaintiffs’ leave to amend their claim for rescission, discussed in detail below, the court denies MERS motion to dismiss with respect to the rescission claim as without MERS, it might not be possible for the court to afford complete relief to Plaintiffs on their rescission claim. See Stewart v. BAC Home Loans Servicing, LP, No. 10-C-2033, 2011 U.S. Dist. LEXIS 24715, 2011 WL 862938, at *3 (N.D.Ill. Mar. 10, 2011) (declining to dismiss TILA rescission claim against MERS because “MERS may be necessary to get [plaintiff] back to [] status quo if [plaintiffs] rescission is enforced by the Court”). 2. Claim for Failure to Disclose TILA regulates the relationship between lenders and borrowers in order to facilitate the “informed use of credit.” See 15 U.S.C. § 1601(a). To that end, TILA requires that creditors make certain disclosures to borrowers, including disclosures of the various costs associated with the loan and of the borrower’s right to rescind the transaction if the creditor retains a security interest in the borrower’s principal dwelling. 15 U.S.C. §§ 1635(a), 1638(a). See generally, 15 U.S.C. §§ 1601-1667f. In certain circumstances, a borrower may also bring a civil cause of action for statutory damages against an assignee of a creditor. 15 U.S.C. § 1641(a). Under section 1641(a), however, only a violation of TILA that is apparent on the face of the instrument is enforceable as against an assignee of the creditor. 15 U.S.C. § 1641(a). A civil action for damages under TILA must be brought within one year of the TILA violation. 15 U.S.C. § 1640(e). Plaintiffs have failed to allege facts which render plausible the conclusion that the TILA mandated disclosures were not made. See Hudson v. Bank of Am., N.A., No. 3:09-CV-462, 2010 U.S. Dist. LEXIS 57909, at *14, 2010 WL 2365588, at *5 (E.D.Va. June 11, 2010) (dismissing TILA claim where plaintiff “merely restate[d]" }, { "docid": "18329123", "title": "", "text": "this charge was not included in the calculated “finance charge” disclosed by the TILA Statement. As noted, the Ameriquest Loan was subsequently sold and assigned to Defendant Deutsche Bank as trustee for Ameri-quest. Plaintiffs fell behind on their mortgage payments, and a mortgage foreclosure action was instituted against them. No judgment in foreclosure has been entered against them. On or about July 1,2005, Plaintiffs’ counsel forwarded a letter to Deutsche Bank asserting, inter alia, an overcharge of title insurance giving rise to a violation of the Federal Truth-in-Lending Act, 15 U.S.C. § 1601, et seq. (“TILA”), and asserting a right to rescind the loan. By letter dated July 20, 2005, Ameriquest denied that Plaintiffs had a right of rescission. Jennifer filed a Chapter 13 petition on July 7, 2005. Plaintiffs filed this adversary proceeding on August 19, 2005. DISCUSSION A. The purpose of TILA is to aid unsophisticated consumers lest they be easily misled as to the costs of financing. Shepeard v. Quality Siding & Window Factory, 730 F.Supp. 1295, 1299 (D.Del.1990). To that end, TILA and the regulations promulgated thereunder require certain disclosure of credit terms so that the consumer will be able to compare more readily the various credit terms available to him and avoid the uninformed use of credit. Id. Pursuant to TILA, a lender must make certain material disclosures, including the “finance charge” associated with the loan. 15 U.S.C. §§ 16Q2(u), 1638(a); 12 C.F.R. §§ 226.17, 226.18. This defined term in- eludes all of those charges “payable directly or indirectly by the person to whom the credit is extended, and imposed directly or indirectly by the creditor as an incident to the extension of credit....” 15 U.S.C. § 1605(a). A lender’s failure to accurately disclose the finance charge provides a borrower with, among other things, an extended right to rescind the transaction up to three years following consummation of the loan. 15 U.S.C. § 1635(f); 12 C.F.R. § 226.23. That right may also be asserted against an assignee of the loan. 15 U.S.C. § 1641(c). Of relevance here, where the transaction involves an extension of credit" }, { "docid": "16598654", "title": "", "text": "v. Krauss Co., Ltd., 572 F.2d 544, 546 (5th Cir. 1978). III. Did Davis and Metalcraft “Consummate” a Consumer Credit Transaction ? Regulation Z obliges creditors to make the statutorily-mandated disclosures “before the transaction is consummated.” 12 C.F.R. § 226.8(a). A transaction is “considered consummated at the time a contractual relationship is created between a creditor and a customer . .. irrespective of the time of performance of either party.” Id. § 226.2(kk) (emphasis added). In the present case, Metalcraft and Davis undisputedly entered into a contractual relationship pursuant to which Metal-craft was required to extend, and Davis was obliged to accept, consumer credit within the meaning of TILA. Thus, the October contract clearly was “consummated” for TILA purposes. The district court, however, apparently was of the opinion that, because Metalcraft never did extend credit as agreed, the subsequent abandonment of the contract somehow “unconsummated” the agreement for TILA purposes. This is not so. “The Truth in Lending Act is a ‘disclosure’ law.... It is the obligation to disclose, not the duty of subsequent performance, towards which the Act is directed.” Burgess v. Charlottesville Savings & Loan Ass'n, 477 F.2d 40, 44-45 (4th Cir. 1973) (footnote omitted; emphasis in original). “[Ajbandonment of the transaction ... is not a basis for relief from liability. . . . ” Dryden, supra, 630 F.2d at 647. In Dryden, the plaintiff Dryden purchased a “lemon” automobile, with financing provided by the defendant creditor. The plaintiff returned the car, and the creditor refunded the plaintiff her down payment. The Eighth Circuit held that the creditor was nevertheless liable for any TILA violations in connection with the financing agreement: The statutory damages are explicitly a bonus to the successful TILA plaintiff, designed to encourage private enforcement of the Act, and a penalty against the defendant, designed to deter future violations. See Williams v. Public Finance Corp., supra; Hinkle v. Rock Springs Nat. Bank, 538 F.2d 295 (10th Cir. 1976). As to the fact that the transaction was abandoned by both parties and Dryden’s money was returned, it is sufficient to note that recovery of statutory damages" }, { "docid": "20712802", "title": "", "text": "523 U.S. at 412, 118 S.Ct. 1408 (“[T]he Act requires creditors to provide borrowers with clear and accurate disclosures of terms dealing with things like finance charges, annual percentage rates of interest, and the borrower’s rights.”). These provisions evidence what amounts to the statute’s core, remedial purpose. See Littlefield v. Walt Flanagan & Co., 498 F.2d 1133, 1136 (10th Cir.1974) (“The Act is designed to prevent ‘unscrupulous and predatory creditor practices[]’ [and] is remedial....” (quoting N.C. Freed Co. v. Bd. of Governors of Fed. Reserve Sys., 473 F.2d 1210, 1214 (2d Cir.1973))). In light of its remedial nature, we liberally construe TILA’s language in favor of the consumer. See id. (“[TILA] must be liberally construed to effectuate the intent of Congress.”); see also Bragg v. Bill Heard Chevrolet, Inc., 374 F.3d 1060, 1065 (11th Cir.2004) (“As a remedial statute, TILA must be construed liberally in favor of the consumer.”); Begala v. PNC Bank, Ohio, Nat’l Ass’n, 163 F.3d 948, 950 (6th Cir.1998) (“We have repeatedly stated that TILA is a remedial statute and, therefore, should be given a broad, liberal construction in favor of the consumer.”); Freeman v. B & B Assocs., 790 F.2d 145, 149 (D.C.Cir.1986) (noting that TILA’s provisions must be given an appropriate level of liberal construction in light of its broad, remedial purposes); cf. Johnson v. Riddle, 305 F.3d 1107, 1117 (10th Cir.2002) (construing a different statute liberally “in favor of the consumer” because it, like TILA, is “remedial” in nature). One of the “remedial” rights that TILA accords to consumers is the right to obtain rescission of a loan in equity. See 15 U.S.C. § 1635(a). Specifically, TILA authorizes a borrower whose loan is secured with her “principal dwelling” to rescind the loan transaction entirely “until midnight of the third business day following the consummation of the transaction or the delivery of the information and rescission forms required ... together with a statement containing [certain] material disclosures ..., whichever is later.” Id. If the required TILA disclosures are never made, then the borrower’s right of rescission under § 1635(f) “shall expire three years after the" }, { "docid": "16598653", "title": "", "text": "credit terms so that the consumer will be able to compare more readily the various credit terms available to him and avoid the uninformed use of credit.” 15 U.S.C. § 1601. To effectuate these purposes, TILA must be construed liberally in favor of the consumer. Cody v. Community Loan Corp., 606 F.2d 499, 505 (5th Cir. 1979), cert. denied, 446 U.S. 988, 100 S.Ct. 2973, 64 L.Ed.2d 846 (1980); Sellers v. Wollman, 510 F.2d 119, 122 (5th Cir. 1975). TILA is a prophylactic measure that creates a system of “private attorneys general” to aid its enforcement. McGowan v. King, 569 F.2d 845, 848-49 (5th Cir. 1978). See 15 U.S.C. § 1640. In order to penalize noncomplying creditors and to deter future violations, these private attorneys general may recover the statutory penalties even if they have not sustained any actual damages, or even if the creditors are guilty of only minute deviations from the requirements of TILA and implementing Regulation Z. Dryden v. Lou Budke’s Arrow Finance Co., 630 F.2d 641, 647 (8th Cir. 1980); Charles v. Krauss Co., Ltd., 572 F.2d 544, 546 (5th Cir. 1978). III. Did Davis and Metalcraft “Consummate” a Consumer Credit Transaction ? Regulation Z obliges creditors to make the statutorily-mandated disclosures “before the transaction is consummated.” 12 C.F.R. § 226.8(a). A transaction is “considered consummated at the time a contractual relationship is created between a creditor and a customer . .. irrespective of the time of performance of either party.” Id. § 226.2(kk) (emphasis added). In the present case, Metalcraft and Davis undisputedly entered into a contractual relationship pursuant to which Metal-craft was required to extend, and Davis was obliged to accept, consumer credit within the meaning of TILA. Thus, the October contract clearly was “consummated” for TILA purposes. The district court, however, apparently was of the opinion that, because Metalcraft never did extend credit as agreed, the subsequent abandonment of the contract somehow “unconsummated” the agreement for TILA purposes. This is not so. “The Truth in Lending Act is a ‘disclosure’ law.... It is the obligation to disclose, not the duty of subsequent performance," }, { "docid": "8948659", "title": "", "text": "1408, 140 L.Ed.2d 566 (1998) (discussing TILA’s purpose). Accordingly, “TILA requires that creditors provide borrowers with clear and accurate disclosures of terms dealing with things like finance charges, annual percentage rates of interest, and the borrower’s rights, as well as notice of the borrower’s right of rescission.” Fiorenza v. Fremont Inv. & Loan, No. 08-CV-858, 2008 WL 2517139, at *2 (S.D.N.Y. June 20, 2008) (internal quotation marks omitted). Creditors who fail to comply with these disclosure requirements are subject to civil liability. See id. at *3; see also 15 U.S.C. § 1640(a). “Consistent with its purpose, TILA is meant to be construed liberally in favor of the consumer.” Schnall v. Marine Midland Bank, 225 F.3d 263, 267 (2d Cir.2000) (alteration and internal quotation marks omitted). “TILA achieves its remedial goals by a system of strict liability in favor of the consumers when mandated disclosures have not been made.” Smith v. Fid. Consumer Disc. Co., 898 F.2d 896, 898 (3d Cir.1990). Indeed, a “court need find only a single violation of the statutory requirements to hold [a] defendant liable under TILA.” Clement v. Am. Honda Fin. Corp., 145 F.Supp.2d 206, 210 (D.Conn. 2001) (internal quotation marks omitted). 1. Rescission Plaintiffs seek rescission under 15 U.S.C. § 1635, which states that: [e]xcept as otherwise provided in this section, in the case of any consumer credit transaction ... in which a security interest ... is or will be retained or acquired in any property which is used as the principal dwelling of the person to whom credit is extended, the obligor shall have the right to rescind the transaction until midnight of the third business day following the consummation of the transaction or the delivery of the information and rescission forms required under this section together with a statement containing the material disclosures required under this subchapter 15 U.S.C. § 1635(a). In addition to these requirements, the creditor is required to “clearly and conspicuously disclose” this rescission right. Id. However, certain types of transactions are specifically exempted from this right of rescission, including “a residential mortgage transaction.” Id. § 1635(e)(1); see also Ng" }, { "docid": "9381651", "title": "", "text": "expiration of the Employment Agreements or continued on “at-will” after their ten-year terms elapsed. The terms of the plans—not the plaintiffs’ individual employment contract— are the ultimate source of entitlement to benefits. However, the employment contracts are relevant to help assess whether the termination of the employer/employee relationship was “involuntary” entitling the plaintiffs to severance benefits under the terms of the plans, or whether they con tained contractually predetermined termination dates agreed to by both parties. Construction of the plans to determine eligibility, and interpretation of the employment contracts to decide whether the plaintiffs were “involuntarily” terminated at the expiration of the term are inseparable co-dependent problems. 1. The Employment Contract As a term contract, unless the employment was continued by another agreement, the contract would naturally end on the assigned date. Because of this natural expiration, Intermedies has argued that plaintiffs were not terminated by the company as required under the severance pay plans, but rather by the expiration of the Employment Agreements. Defendants contend that plaintiffs are not due severance benefits because the agreement expired by its own terms and such a dissolution is not covered under Intermédics’ severance pay plan. In contrast, plaintiffs have asserted several theories as to why they were “involuntarily terminated.” Plaintiffs first argue that the Employment Agreement’s expiration amounted to an “involuntary termination” entitling them to severance benefits. Although the plans grant the company discretion in resolving certain questions concerning eligibility, the plaintiffs argue that the denial of benefits was an abuse of discretion. Alternatively, Bokros and the other plaintiffs have advanced several theories as to why their employment did not end with the expiration of the Employment Agreement. First, Bokros claims that he and Albert Beutel, President and CEO of Intermedies, discussed that the contract was not for a specific term of employment. Instead, they agreed that the employment would be “evergreen,” which means although employment would be guaranteed for ten years, it would continue thereafter “at-will.” Bokros, relying on Beutel’s word, then informed the other plaintiffs (Haubold, Akins, Emken, and Sommerfeld) that the same oral agreement altered their contracts. ■ Additionally," }, { "docid": "9381652", "title": "", "text": "agreement expired by its own terms and such a dissolution is not covered under Intermédics’ severance pay plan. In contrast, plaintiffs have asserted several theories as to why they were “involuntarily terminated.” Plaintiffs first argue that the Employment Agreement’s expiration amounted to an “involuntary termination” entitling them to severance benefits. Although the plans grant the company discretion in resolving certain questions concerning eligibility, the plaintiffs argue that the denial of benefits was an abuse of discretion. Alternatively, Bokros and the other plaintiffs have advanced several theories as to why their employment did not end with the expiration of the Employment Agreement. First, Bokros claims that he and Albert Beutel, President and CEO of Intermedies, discussed that the contract was not for a specific term of employment. Instead, they agreed that the employment would be “evergreen,” which means although employment would be guaranteed for ten years, it would continue thereafter “at-will.” Bokros, relying on Beutel’s word, then informed the other plaintiffs (Haubold, Akins, Emken, and Sommerfeld) that the same oral agreement altered their contracts. ■ Additionally, while the agreement provided for employment for at least the agreement’s ten-year term, some provisions looked beyond the term of the agreement. For example, a provision regarding stock benefits scheduled the vesting of a portion of these benefits beyond the expiration of the agreement. In other words, the agreement provided that Bokros might need to work more than the term of the agreement in order for these benefits to vest. Intermedies also gained protection and limited Bokros’ future employment for a period extending potentially far. beyond ten years. The agreement provided that even after ten years, Bokros “shall not undertake any employment competitive, .or in conflict with, the interests of [Intermedies] wherein the complete, unhampered fulfillment of the duties of that employment would inherently or inevitable call upon [Bokros] to reveal any such confidential or proprietary information or trade secrets.” Record at 1042-43. Therefore, while the agreement had a ten-year term applicable to many of its provision, it also had the effect of significantly restricting Bokros’ alternative employment indefinitely into the future. Also, in 1985," }, { "docid": "9381643", "title": "", "text": "the Medical Products Division of the General Atomic Company. The division was involved in the research, development, manufacture, and marketing of carbon-coated medical and dental prostheses and components, and in carbon-coating such items for other companies. One of the division’s most valuable assets was its proprietary process for carbon-coating, known as the “pyrolite process,” invented by Dr. Bokros. Bokros, as an inventor and Director of the division, held the highest position and was in charge of the management and operation of the division. The other plaintiffs held similar executive-level positions within the division. During 1978, General Atomic began negotiations for the sale of the division to In-termedies. Negotiations proceeded on two fronts: General Atomic and Intermedies negotiated as to the sale of the division, and Intermedies negotiated separately with Bok-ros as to continued employment of Bokros and his management team. Plaintiff Bokros was hired as president of CarboMedies by then Intermedies president, Albert Beutel. He in turn authorized Bokros to hire a team of executives (plaintiffs Hau-bold, Emken, and Sommerfeld, as well as Robert Akins who has since dismissed his cause of action) to help run CarboMedies. Intermedies hired all of the plaintiffs to work for its subsidiary CarboMedies under a term contract for a period of ten years ending on December 31, 1988. Each contract contained a provision which stated that fringe benefits and perquisites of comparable executives of Intermedies shall be available to the plaintiffs. Thus, as In-termedies improved existing benefits or created new ones for its other executives, it would be required to provide the same benefits to the plaintiffs. Several years later, as the expiration of the contracts neared, the new management of Intermedies embarked on a .major reorganization involving CarboMedics. As part of the reorganization plan, they transferred management authority over this subsidiary to other management personnel. When the plaintiffs contract expired on December 31, 1988, the employment relationship was terminated. However, Intermedies refused to make severance payments under either the Car-boMedics or Intermedies severance pay plans. Pursuant to the terms of the severance plans, the denial of benefits was reviewed by a company plan" }, { "docid": "520212", "title": "", "text": "otherwise, and shall take any action necessary or appropriate to reflect the termination of any security interest created under the transaction.” Id. The borrower’s right to rescind applies equally against the original creditor and subsequent assignees. 15 U.S.C. § 1641(c). 15 U.S.C. § 1635(g) provides, “In any action in which it is determined that a creditor has violated this section, in addition to rescission the court may award relief under section 1640 of this title for violations of this subehapter not relating to the right to rescind.” 15 U.S.C. § 1640(a) allows private causes of action for monetary damages. However, 15 U.S.C. § 1640(e) establishes a limitation period on damages claims, providing that “[a]ny action under this section may be brought in any United States district court, or in any other court of competent jurisdiction, within one year from the date of the occurrence of the violation.” Where a creditor refuses to cancel a loan after receiving timely notice of rescission, the creditor violates TILA. Miguel, 309 F.3d at 1165. Pursuant to 15 U.S.C. § 1640(e), the obligor has one year from the date of refusal to file suit for damages arising out of the failure to rescind. Id. Additionally, a creditor violates TILA where they make inaccurate disclosures, and an obligor has one year from each of the lender’s inaccurate disclosures to file suit. Hubbard v. Fidelity Federal Bank, 91 F.3d 75, 79 (9th Cir. 1996). 1. Rescission Plaintiffs contend that due to defendants’ TILA violations, they are entitled to 15 U.S.C. § 1635(f)’s extended three-year right of rescission. Assuming arguendo that plaintiffs are entitled to the three-year statute of limitations, plaintiffs’ right of rescission expired on or about May 17, 2008, three years from the date of consummation of the loan agreements. According to 12 C.F.R. § 226.23(a)(2), in order to exercise the right of rescission the obligor must “notify the creditor of the rescission by mail, telegram, or other means of written communication,” and notice is deemed effective when mailed. See also Toscano v. Ameriquest Mortg. Co., 2007 WL 3125023 (E.D.Cal.2007) (stating that while the law is" }, { "docid": "8353273", "title": "", "text": "F.3d 1097, 1106 (9th Cir.2003) (emphasis and internal quotation marks omitted). IV. DISCUSSION AND ANALYSIS A. TILA Claim Plaintiff asserts a TILA claim against Sierra Pacific for damages and rescission. Sierra Pacific allegedly violated TILA by: “(a) failing to provide required disclosures prior to consummation of the transaction; (b) failing to make required disclosures clearly and conspicuously in writing; (c) failing to timely deliver to Plaintiff notices required by TILA; (d) placing terms prohibited by TILA into the transaction; and (e) failing to disclose all finance charge details and the annual percentage rate based upon properly calculated and disclosed finance charges and amounts financed.” (Doc. 14 at 11.) Sierra Pacific argues that Plaintiffs TILA claim for damages and rescission are both time-barred, and that the complaint fails to allege facts sufficient to demonstrate a right to rescission. 1. Damages Claim TILA “requires creditors to provide borrowers with clear and accurate disclosures of terms dealing with things like finance charges, annual percentage rates of interest, and the borrower’s rights.” Beach v. Ocwen Fed. Bank, 523 U.S. 410, 412, 118 S.Ct. 1408, 140 L.Ed.2d 566 (1998). Failure to satisfy TILA’s requirements exposes a lender to “statutory and actual damages [that are] traceable to a lender’s failure to make the requisite disclosures.” Id. A TILA claim for damages must be brought “within one year from the date of the occurrence of the violation.” 15 U.S.C. § 1640(e); see also Beach, 523 U.S. at 412, 118 S.Ct. 1408. For statute of limitations purposes, the “occurrence of the violation” takes place on the “consummation of the transaction.” King v. California, 784 F.2d 910, 915 (9th Cir.1986). Here, according to the complaint, the transaction was consummated “on or about May 11, 2006.” (Doc. 14 at 7.) Plaintiff had until May 2007 to file his TILA claim for damages. Plaintiff, however, filed his TILA claim for damages on May 4, 2009, well past the deadline. (See Doc. 1.) Accordingly, Plaintiffs TILA claim for damages - is time-barred absent equitable tolling. As explained in King, TILA’s one-year limitations period may be extended through equitable tolling: [T]he limitations period" } ]

[ { "docid": "22657538", "title": "", "text": "appeal three issues upon which the district court entered summary judgment in favor of the State: (1) whether his confession was illegally obtained; (2) whether the imposition of the death penalty in North Carolina unconstitutionally discriminates against the impoverished; and (3) whether the ex post facto clause bars the application of N.C.Gen.Stat. § ISA-1419 to his habeas petition. We will address each of Rose’s arguments and then turn to the State’s argument that the district court erred by remanding the ineffective assistance claim to the state habeas court for application of the proper legal standard. II. To be entitled to a certificate of appealability, Rose must make “a substantial showing of the denial of a constitutional right.” 28 U.S.C.A. § 2253(c)(2) (West Supp.2000). In Slack v. McDaniel, 529 U.S. 473, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000), the United States Supreme Court clarified § 2253’s requirements. To make the required showing, a 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.’ ” Id. at 483-84, 120 S.Ct. 1595 (quoting Barefoot v. Estelle, 463 U.S. 880, 893 & n. 4, 103 S.Ct. 3383, 77 L.Ed.2d 1090 (1983)). A. ROSE’S EX POST FACTO CLAIM Rose filed his MAR on October 4, 1995. On June 21, 1996, the North Carolina legislature amended N.C.Gen.Stat. § ISA-1419 (1999 & Supp.2000), which addresses default of claims on state collateral review. Prior to this amendment, the procedural bars established under § 15A-1419 were discretionary. The amendment makes the procedural bars found therein mandatory rather than discretionary, unless the petitioner can establish good cause or that the failure to consider the claim will result in a fundamental miscarriage of justice. N.C.Gen.Stat. § 15A-1419(b). The State habeas court applied the amended version of § 15A-1419 to several of Rose’s claims and held the claims procedurally barred. Rose argues that the application of § 15A-1419 as amended violates the Ex Post Facto Clause of the United States Constitution. U.S. Const, art." } ]

[ { "docid": "22880481", "title": "", "text": "EDITH H. JONES, Circuit Judge: Bruce Wayne Houser, Texas prisoner # 460890, moves for a certificate of appeal-ability (COA) to appeal the dismissal of his 28 U.S.C. § 2254 petition for failure to exhaust administrative remedies and as procedurally barred. In that petition, Houser alleged due process violations in connection with prison disciplinary proceeding # 20020003898. Houser has demonstrated that reasonable jurists could debate whether the district court was correct in its procedural ruling. See Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 1603-04, 146 L.Ed.2d 542 (2000). However, he fails to establish that reasonable jurists could debate whether he has claimed a valid deprivation of his constitutional rights. See id. COA IS DENIED. The district court found that Houser failed to exhaust his state remedies because he had not filed his Step 1 grievance in a timely manner and, further, that he had failed to file a Step 2 grievance. Both of these findings are rendered questionable by the record, which indicates that Houser’s Step 1 grievance was received on the first working day beyond the fifteen-day period allotted for filing grievances and, per the Offender Grievance Operations Manual, was therefore timely. Also, contrary to the district court’s finding, the record contains a copy of Houser’s Step 2 grievance and the response issued by prison authorities. The district court’s determination of failure to exhaust is at best suspect. However, for a COA to issue, Houser must prove not only that reasonable jurists could debate whether the district court was correct in its procedural ruling, but also that reasonable jurists could find it debatable that the petition states a valid claim of the denial of a constitutional right. 28 U.S.C. § 2253(c); Slack, 529 at 484, 120 S.Ct. at 1603-04. This coequal portion of the appealability test “gives meaning to Congress’ requirement that a prisoner demonstrate substantial underlying claims.” Slack, id. Accordingly, we must consider whether “reasonable jurists would find the district court’s assessment of the constitutional claims debatable or wrong.” Miller-El v. Cockrell, 537 U.S. 322, 338, 123 S.Ct. 1029, 1040, 154 L.Ed.2d 931 (2003). Performing the" }, { "docid": "7585281", "title": "", "text": "process. Haynes filed a habeas petition on October 5, 2005, with the District Court for the Southern District of Texas. The district court denied habeas relief in an opinion on January 25, 2007. At the end of the extensive memorandum opinion, the district court appended a relatively short sua sponte denial of COA essentially reciting the standard of review and then concluding: Under the appropriate standard the court finds that Haynes has not shown that this court should certify any issue for appellate consideration. This court DENIES Haynes a COA on all the claims raised by his petition. Id. at *37 (emphasis in original). Haynes now seeks a COA from this court to challenge the district court’s denial of habeas relief. II. STANDARD OF REVIEW A petitioner must obtain a COA before appealing the district court’s denial of habeas relief. 28 U.S.C. § 2253(c). “This is a jurisdictional prerequisite because the COA statute mandates that ‘[u]nless a circuit justice or judge issues a certificate of appealability, an appeal may not be taken to the court of appeals ....’” Miller-El v. Cockrell, 537 U.S. 322, 336, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003) (Miller-El I) (quoting 28 U.S.C. § 2253(c)(1)). Under the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), a COA may not issue unless “the applicant has made a substantial showing of the denial of a constitutional right.” Slack v. McDaniel, 529 U.S. 473, 483, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000) (quoting 28 U.S.C. § 2253(c)). According to the Supreme Court, this requirement includes a showing that “reasonable jurists could debate whether (or, for that matter, agree that) the petition should have been resolved in a different manner or that the issues presented were ‘adequate to deserve encouragement to proceed further.’ ” Id. at 484,120 S.Ct. 1595 (quoting Barefoot v. Estelle, 463 U.S. 880, 893 n. 4, 103 S.Ct. 3383, 77 L.Ed.2d 1090 (1983)). As the Supreme Court explained: The COA determination under § 2253(c) requires an overview of the claims in the habeas petition and a general assessment of their merits. We look to the district" }, { "docid": "23197595", "title": "", "text": "and the State’s summary-judgment motion was denied as moot. See Foster v. Dretke, No. SA-02-CA-301-RF, 2005 U.S. Dist. LEXIS 13862 (S.D. Tex. 3 Mar. 2005). Each side appealed. To do so, Foster requested a COA from our court on two claims. Foster, 2006 WL 616980, addresses the denial of that request. II. Review of this 28 U.S.C. § 2254 habeas proceeding is subject to the Antiterrorism and Effective Death Penalty Act of 1996, Pub.L. No. 104-132, 110 Stat. 1214 (1996) (AEDPA). See, e.g., Penry v. Johnson, 532 U.S. 782, 792, 121 S.Ct. 1910, 150 L.Ed.2d 9 (2001). Before addressing the conditional habeas relief granted by the district court, we consider the belated COA request for a stand-alone actual-innocence claim. A. Under AEDPA, Foster may not appeal the denial of habeas relief unless he obtains a COA from either the district, or this, court. 28 U.S.C. § 2253(c); Fed. R.App. P. 22(b)(1); Slack v. McDaniel, 529 U.S. 473, 478, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000). Under Federal Rule of Appellate Procedure 22(b)(1), the district court must first decide whether to grant a COA before one can be requested here. As noted, the district court denied a COA for the claim Foster seeks to appeal here. Obtaining a COA requires “a substantial showing of the denial of a constitutional right”. 28 U.S.C. § 2253(c)(2); e.g., Miller-El v. Cockrell, 537 U.S. 322, 336, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003); Slack, 529 U.S. at 483, 120 S.Ct. 1595. For that requisite showing, an applicant usually must demonstrate “reasonable jurists could debate whether (or, for that matter, agree that) the [federal-habeas] petition should have been resolved in a different manner or that the issues presented were ‘adequate to deserve encouragement to proceed further’ ”. Miller-El, 537 U.S. at 336, 123 S.Ct. 1029 (quoting Slack, 529 U.S. at 484, 120 S.Ct. 1595). Where, as here, the district court’s habeas denial includes a procedural ruling, as opposed to one on the underlying constitutional claim, the showing is expanded. See Hall v. Cain, 216 F.3d 518, 521 (5th Cir.2000). In that situation, the applicant must show" }, { "docid": "10202291", "title": "", "text": "PER CURIAM: Charles Hensley Mitchell, II, Texas prisoner # 1851936, moves for a certificate of appealability (COA) to appeal the district court’s denial of his 28 U.S.C. § 2254 habeas corpus petition, which challenged his conviction of aggravated assault with a deadly weapon. He also seeks a COA to appeal the district court’s postjudgment denials of his motion for an evidentiary hearing and his motion to alter or amend the judgment under Federal Rules of Civil Procedure 59(e). The district court denied a COA when it denied Mitchell’s § 2254 petition, but it did not address the need for a COA in connection with the post-judgment rulings. To obtain a COA, a § 2254 petitioner must make “a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2); see Miller-El v. Cockrell, 537 U.S. 322, 336, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003). This means that for Mitchell’s claims of prosecutorial misconduct and ineffective assistance of appellate counsel, which the district court denied on the merits, Mitchell must “demonstrate that reasonable jurists would find the district court’s assessment of the constitutional claims debatable or wrong.” Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000). He fails to make such a showing. Mitchell also challenges the district court’s finding that he procedurally defaulted his claim that the state trial court’s refusal to give the jury an instruction on self-defense violated due process, but he fails to show “that jurists of reason would find it debatable whether the district court was correct in its procedural ruling.” Id. Also, Mitchell fails to show that reasonable jurists could debate whether, or agree that, his challenge to the denial of his motion for partial summary judgment is “adequate to deserve encouragement to proceed further.” Miller-El, 537 U.S. at 336, 123 S.Ct. 1029 (internal quotation marks and citation omitted). Mitchell fails to brief, and thus waived, his claims of ineffective assistance of trial counsel. Hughes v. Johnson, 191 F.3d 607, 612-13 (5th Cir. 1999). With respect to these claims, we DENY a COA. A COA is required to" }, { "docid": "19629239", "title": "", "text": "C. Walker as amicus curiae in support of the judgment of the Court of Appeals. She has ably discharged her responsibilities. III A This case comes to the Court in a somewhat unusual procedural posture. Under the Antiterrorism and Effective Death Penalty Act of 1996, there can be no appeal from a final order in a § 2255 proceeding unless a circuit justice or judge issues a certificate of appealability. 28 U.S.C. § 2253(c)(1). A certificate of appealability may issue \"only if the applicant has made a substantial showing of the denial of a constitutional right.\" § 2253(c)(2). That standard is met when \"reasonable jurists could debate whether (or, for that matter, agree that) the petition should have been resolved in a different manner.\" Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000). Obtaining a certificate of appealability \"does not require a showing that the appeal will succeed,\" and \"a court of appeals should not decline the application ... merely because it believes the applicant will not demonstrate an entitlement to relief.\" Miller-El v. Cockrell, 537 U.S. 322, 337, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003). The decision under review here is the single-judge order in which the Court of Appeals denied Welch a certificate of appealability. Under the standard described above, that order determined not only that Welch had failed to show any entitlement to relief but also that reasonable jurists would consider that conclusion to be beyond all debate. See Slack, supra, at 484, 120 S.Ct. 1595. The narrow question here is whether the Court of Appeals erred in making that determination. That narrow question, however, implicates a broader legal issue: whether Johnson is a substantive decision with retroactive effect in cases (like Welch's) on collateral review. If so, then on the present record reasonable jurists could at least debate whether Welch should obtain relief in his collateral challenge to his sentence. On these premises, the Court now proceeds to decide whether Johnson is retroactive. B The normal framework for determining whether a new rule applies to cases on collateral review stems from" }, { "docid": "4885575", "title": "", "text": "determine whether to issue a certificate of appealability (“COA”). We grant a COA only upon “a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). To make this showing, “[t]he petitioner must demonstrate that reasonable jurists would find the district court’s assessment of the constitutional claims debatable or wrong.” Miller-El v. Cockrell, 537 U.S. 322, 338, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003) (quoting Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000)). While Lassalle-Velázquez has not yet requested a COA, we see no way in which a reasonable jurist could find our assessment of his constitutional claims debatable or wrong. Lassalle-Velázquez may request a COA directly from the First Circuit, pursuant to Rule of Appellate Procedure 22. In this respect, we state that it has become common practice to collaterally challenge federal convictions in federal court by raising arguments of dubious merit. This practice is overburdening federal district courts to the point of having some of these criminal cases re-litigated on § 2255 grounds. We look at this matter with respect to the rights of litigants, but also must protect the integrity of the system against meritless allegations. See Davis v. U.S., 417 U.S. 333, 346, 94 S.Ct. 2298, 41 L.Ed.2d 109 (1974) (in a motion to vacate judgment 25 under § 2255, the claimed error of law must be a fundamental defect which inherently results in a complete miscarriage of justice); see also Dirring v. U.S., 370 F.2d 862 (1st Cir.1967) (§ 2255 is a remedy available when some basic fundamental right is denied — not as vehicle for routine review for defendant who is dissatisfied with his sentence). V. Conclusion For the foregoing reasons, we hereby DENY Petitioner’s § 2255 motion (Docket No. 1). Pursuant to Rule 4(b) of the Rules Governing § 2255 Proceedings, summary dismissal is in order because it plainly appears from the record that Petitioner is not entitled to § 2255 relief from this court. IT IS SO ORDERED." }, { "docid": "9442958", "title": "", "text": "appeals first issues a COA. 28 U.S.C. § 2253(c)(1) (2004); Miller-El v. Cockrell, 537 U.S. 322, 336, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003) (describing a COA as a “jurisdictional prerequisite” without which “federal courts of appeals lack jurisdiction to rule on the merits of appeals from habeas petitioners”); Neville v. Dretke, 423 F.3d 474, 478 (5th Cir.2005). In determining whether to grant a petitioner’s request for a COA, the Supreme Court has instructed that a “court of appeals should limit its examination to a threshold inquiry into the underlying merit of his claims.” Miller-El, 537 U.S. at 327, 123 S.Ct. 1029 (citing Slack v. McDaniel, 529 U.S. 473, 481, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000)). “This threshold inquiry does not require full consideration of the factual or legal bases adduced in support of the claims. In fact, the statute forbids it.” Id. at 336, 123 S.Ct. 1029. A COA mil be granted “only if the applicant has made a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2) (2004). In order to meet this standard, Pippin must demonstrate that “jurists of reason could disagree with the district court’s resolution of his constitutional claims or that jurists could conclude the issues presented are adequate to deserve encouragement to proceed further.” Miller-El, 537 U.S. at 327, 123 S.Ct. 1029 (citing Slack, 529 U.S. at 484, 120 S.Ct. 1595). “The COA determination under § 2253(c) requires an overview of the claims in the habeas petition and a general assessment of their merits.” Id. at 336, 123 S.Ct. 1029. Although the issuance of a COA “must not be pro forma or a matter of course,” the petitioner satisfies the burden under § 2253(c) by “demonstrating] that reasonable jurists would find the district court’s assessment of the constitutional claims debatable or wrong.” Id. at 337-38, 123 S.Ct. 1029. “[A] claim can be debatable even though every jurist of reason might agree, after the COA has been granted and the case has received full consideration, that petitioner will not prevail.” Id. at 338, 123 S.Ct. 1029. Finally, any doubt as" }, { "docid": "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": "22327723", "title": "", "text": "was incorrect. See 28 U.S.C. § 1915(a)(3); Fed. R.App. P. 24(a)(3). In this Court, Clark requests a Certificate of Appealability (COA) and again seeks leave to proceed ifp. See 28 U.S.C. § 2253(c)(1)(B); Fed. R.App. P. 22(b)(1), 24(a)(5). Background Clark’s habeas petition stems from four state cases. In one case, a jury convicted Clark of two counts. He then pled guilty to three other pending cases pursuant to a plea agreement. On December 20, 2002, he was sentenced to twenty years imprisonment for the charges on which the jury found him guilty. At the same time, pursuant to the plea agreement, the court sentenced him on the remaining charges, running all sentences concurrently. Clark did not move to withdraw his guilty pleas, file a direct appeal, or seek a writ of certiorari from the United States Supreme Court. As a result, the judgments on Clark’s convictions became final ten days later, December 30, 2002. Okla. Stat. tit. 22, § 1501; Okla.Crim.App. R. 2.5(A) & 4.2(A). Clark filed his habeas petition in federal court on November 3, 2005. Because the petition was signed on October 31, 2005, the district court deemed it filed on that date pursuant to the prisoner mailbox rule. Fed. R.App. P. 4(c). Certificate of Appealability A COA is a jurisdictional prerequisite to our review. Miller-El v. Cockrell, 537 U.S. 322, 336, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003). We will issue a COA only if Clark makes a “substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). To make this showing, he must establish that “reasonable jurists could debate whether ... the petition should have been resolved [by the district court] 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). Insofar as the district court dismissed Clark’s habeas petition on procedural grounds, Clark must demonstrate both that “jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and" }, { "docid": "5215502", "title": "", "text": "2011 WL 4826968 (Tex.Crim. App. Oct. 12, 2011). Garza filed his amended federal habeas petition in 2012, which the district court denied. Garza v. Thaler, 909 F.Supp.2d 578, 691 (W.D.Tex.2012). The district court also denied Garza a COA. Id. Garza now requests a COA from this court. II. The AEDPA governs our consideration of Garza’s request for a COA. Under the AEDPA, a state habeas petitioner must obtain a COA before he can appeal the federal district court’s denial of habeas relief. 28 U.S.C. § 2253(c)(1)(A); see Miller-El v. Cockrell, 537 U.S. 322, 336, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003) (describing a COA as a jurisdictional prerequisite without which federal courts of appeals lack jurisdiction to rule on the merits of the appeals from habeas petitioners). A COA is warranted upon a substantial showing of the denial of a constitutional right. § 2253(c)(2). A petitioner satisfies this standard if reasonable jurists would find the district court’s assessment of the constitutional claims debatable or wrong. Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000). To obtain a COA when the district court has denied relief on procedural grounds, such as procedural default, a petitioner must show both a debatable claim on the merits and that the district court’s procedural ruling is debatable. See id. at 484-85, 120 S.Ct. 1595. The issue is the debatability of the underlying constitutional claim, not the resolution of the debate. Miller-El, 537 U.S. at 342, 123 S.Ct. 1029; see id. at 338, 123 S.Ct. 1029 ([A] claim can be debatable even though every jurist of reason might agree, after the COA has been granted and the case has received full consideration, that petitioner will not prevail). This threshold inquiry does not require full consideration of the factual or legal bases adduced in support of the claims. In fact, the statute forbids it. Id. at 336, 123 S.Ct. 1029. In cases involving the death penalty, any doubts as to whether a COA shoúld issue must be resolved in [the petitioner’s] favor. Hernandez v. Johnson, 213 F.3d 243, 248 (5th Cir.2000). We" }, { "docid": "13139588", "title": "", "text": "only in the event that it found that he actually attacked Vick. The court did not instruct the jury on a law of the parties theory of liability. The jury found Wright guilty, and he was sentenced to death. Wright’s conviction was affirmed on direct appeal to the Texas Court of Criminal Appeals (“TCCA”). Wright v. State, 28 S.W.3d 526 (Tex.Crim.App.2000). He petitioned the state court for a writ of habeas corpus. The state trial judge adopted the State’s proposed findings of fact and conclusions of law in their entirety and recommended that relief be denied. The TCCA adopted the trial court’s findings of fact and conclusions of law and denied relief. Wright petitioned the United States District Court for the Northern District of Texas for a federal writ of habeas corpus. A magistrate judge recommended denying relief on all of Wright’s claims. Wright v. Dretke, 3:01-CV-0472, 2004 WL 438941 (N.D.Tex. Mar.10, 2004). The district court judge adopted the magistrate judge’s recommendation and denied the petition. II We issue a certificate of appealability only when the movant has made “a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(e)(2). This requires him to “demonstrate that reasonable jurists would find the district court’s assessment of the constitutional claims debatable or wrong.” Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000). At this stage, we are not permitted to give full consideration of the factual or legal bases in support of the claim. Miller-El v. Cockrell, 537 U.S. 322, 336, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003). Instead, we merely conduct an overview of the claims and a general assessment of their merits. Id. The movant’s arguments “must be assessed under the deferential standard required by 28 U.S.C. § 2254(d)(1).” Tennard v. Dretke, 542 U.S. 274, 282, 124 S.Ct. 2562, 159 L.Ed.2d 384 (2004); see Miller-El, 537 U.S. at 348-50, 123 S.Ct. 1029 (Scalia, J., concurring) (arguing that a court must consider 28 U.S.C. § 2254(d)’s deferential standard of review when ruling on motion for COA). A federal court may not issue a" }, { "docid": "14010033", "title": "", "text": "denied. II To receive a COA, Cardenas must make a substantial showing of the denial of a constitutional right. 28 U.S.C. § 2253(c)(2). When a district court rejects a claim on the merits, “[t]he petitioner must demonstrate that reasonable jurists would find the district court’s assessment of the constitutional claims debatable or wrong.” Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000). In capital cases, doubts about whether the petitioner has met the standard must be resolved in favor of the petitioner. Clark v. Johnson, 202 F.3d 760, 764 (5th Cir.2000). When a petition is dismissed on procedural grounds, the petitioner must show that “jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling.” Slack, 529 U.S. at 484, 120 S.Ct. 1595 (emphasis added). At the COA stage, a court should “limit its examination to a threshold inquiry into the underlying merit of his claims.” Miller-El v. Cockrell, 537 U.S. 322, 327, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003) (citing Slack, 529 U.S. at 481, 120 S.Ct. 1595). We do not fully consider “the factual or legal bases adduced in support of the claims,” and a petitioner need not show that an appeal will succeed in order to be entitled to a COA. Id. at 336-37, 123 S.Ct. 1029. “The question is the debatability of the underlying constitutional claim, not the resolution of that debate.” Id. at 342, 120 S.Ct. 1595. The district court should evaluate the habeas petition to see if the state court’s determination “resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court.” 28 U.S.C. § 2254(d)(1). A decision adjudicated on the merits in a state court and based on a factual determination will not be overturned on factual grounds unless it “resulted in a decision that was based on an unreasonable determination of the facts in light" }, { "docid": "22276150", "title": "", "text": "every time there is a Rule 60(b) denial in a habeas case and the petitioner elects to appeal. And prisoners will almost always elect to appeal given all the free time on their hands. See Harris v. Garner, 216 F.3d 970, 978-79 (11th Cir.2000) (en banc). The dissent would have the courts of appeal entertain and decide each of those appeals no matter how clearly non-meritorious it appeared from the outset, and no matter whether it was from the denial of the first or fifth or fifteenth Rule 60(b) motion the petitioner had filed. Congress could not have intended that. For all of these reasons, we conclude that the certificate of appealability requirement applies not only to all final judgments denying § 2254 or § 2255 relief, but also to all final judgments denying Rule 60Q3) relief from those earlier final judgments. III. The next question up is whether certificates of appealability should be issued in the three cases before us. Congress has provided that a certificate of appealability may issue “only if the applicant has made a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). The Supreme Court has explained that this means the petitioner must show “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, 1603-04, 146 L.Ed.2d 542 (2000) (quoting Barefoot v. Estelle, 463 U.S. 880, 893 n. 4, 103 S.Ct. 3383, 3394 n. 4, 77 L.Ed.2d 1090 (1983)); accord Miller-El v. Cockrell, 537 U.S. 322, 335-36, 123 S.Ct. 1029, 1039, 154 L.Ed.2d 931 (2003). The certificate of appealability requirement is to be administered at the threshold of the appeal, and deciding whether to issue one neither requires nor permits full consideration of the factual and legal merits of the claims, Miller-El at 336, 123 S.Ct. at 1039, because “[t]he question is the debatability of the underlying-constitutional claim, not the resolution of that debate,” id. at" }, { "docid": "19629258", "title": "", "text": "Welch never claimed that the residual clause was unconstitutionally vague in his § 2255 motion, let alone that Johnson applies retroactively. Accordingly, courts below addressed neither issue. Indeed, Johnson was not even decided when the courts below issued their rulings. Those deficiencies should preclude us from deciding in this case whether Johnson is retroactive. Our role in reviewing the denial of a certificate of appealability is far more circumscribed than normal appellate review. The text of 28 U.S.C. § 2253 confirms this. Defendants can appeal their convictions and sentences as a matter of right on direct review, but § 2253 deprives courts of appeals of jurisdiction to review the denial of a petitioner's motion for federal postconviction relief unless he obtains a \"certificate of appealability.\" § 2253(c)(1). And he can obtain that certificate only if he makes \"a substantial showing of the denial of a constitutional right.\" § 2253(c)(2) ; see Miller-El v. Cockrell, 537 U.S. 322, 335-336, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003). Accordingly, this Court has instructed that review of the denial of a certificate of appealability is a retrospective inquiry into whether the movant's claims, as litigated in the district court, warrant further proceedings-not whether there is any conceivable basis upon which the movant could prevail. Courts must ask whether \"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) (emphasis added). They are to \"look to the District Court's application of [the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) ] to petitioner's constitutional claims and ask whether that resolution was debatable.\" Miller-El, supra, at 336, 123 S.Ct. 1029 (emphasis added). Until today, we did not require courts of appeals to consider all possible constitutional issues that might warrant relief as part of this inquiry. Those courts instead looked to how the movant framed his case in his motion to vacate. Even if, for example, a district court denies habeas relief based on procedural default and never reached the merits, the movant must establish not" }, { "docid": "13109965", "title": "", "text": "Bagwell appealed the denial of the COA on two of his habeas claims to this court. II. STANDARD OF REVIEW Bagwell’s § 2254 habeas petition is subject to the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”). See Penry v. Johnson, 532 U.S. 782, 792, 121 S.Ct. 1910, 1918, 150 L.Ed.2d 9 (2001). AEDPA requires Bagwell obtain a COA before he can appeal the district court’s denial of habeas relief. 28 U.S.C. § 2253(c)(1) (2000). Hence, “until a COA has been issued federal courts of appeals lack jurisdiction to rule on the merits of appeals from habeas petitioners.” Miller-El v. Cockrell, 537 U.S. 322, 336, 123 S.Ct. 1029, 1039, 154 L.Ed.2d 931 (2003). A COA will issue only if the petitioner makes “a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2) (2000); Miller-El, 537 U.S. at 336, 123 S.Ct. at 1039. More specifically, the petitioner must demonstrate that “reasonable jurists would find the district court’s assessment of the constitutional claims debatable or wrong.” Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 1604, 146 L.Ed.2d 542 (2000). Likewise, when the district court has rejected a claim on a procedural ground, “the petitioner must also demonstrate that ‘jurists of reason would find it debatable whether the district court was correct in the procedural ruling.’ ” Henry v. Cockrell, 327 F.3d 429, 431 (5th Cir.2003) (quoting Slack, 529 U.S. at 484, 120 S.Ct. at 1604). The Supreme Court counseled that “a COA ruling is not the occasion for a ruling on the merit of petitioner’s claim[.]” Id. at 331, 123 S.Ct. 1029. Instead, this court should engage in an “overview of the claims in the habeas petition and a general assessment of their merits.” Id. at 336, 123 S.Ct. 1029. “[A] claim can be debatable even though every jurist of reason might agree, after the COA has been granted and the case has received full consideration, that petitioner will not prevail.” Id. at 338, 123 S.Ct. 1029. Ultimately, “[t]o prevail on a petition for writ of habeas corpus, a petitioner must demonstrate that the state" }, { "docid": "3835519", "title": "", "text": "granted Respondent’s motion, dismissed Rowell’s petition, entered a final judgment, and denied Ro-well a COA on his claims. Rowell timely filed the instant application for COA. DISCUSSION Rowell filed his § 2254 petition for a writ of habeas corpus after the effective date of the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”). Therefore, his petition is subject to the procedures imposed by AEDPA; Rowell’s right to appeal is governed by the COA requirements of § 2253(c). See Slack v. McDaniel, 529 U.S. 473, 478, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000). Under AEDPA, a petitioner must obtain a COA before an appeal can be taken to this Court. 28 U.S.C. § 2253(c); see also Miller-El v. Cockrell, 537 U.S. 322, 336, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003) (“[Ujntil a COA has been issued federal courts of appeals lack jurisdiction to rule on the merits of appeals from habeas petitioners.”). When a habeas petitioner requests permission to seek appellate review of the dismissal of his petition, this Court limits its examination to a “threshold inquiry into the underlying merit of his claims.” Miller-El, 537 U.S. at 327, 123 S.Ct. 1029. “This threshold inquiry does not require full consideration of the factual or legal bases adduced in support of the claims. In fact, the statute forbids it.” Id. at 336, 123 S.Ct. 1029. A COA will be granted if the petitioner makes “a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). Meeting this standard requires a petitioner to 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.” Miller-El, 537 U.S. at 336, 123 S.Ct. 1029 (internal quotation marks and citation omitted). At issue is the debatability of the underlying constitutional claim, but not the resolution of that debate. Id. at 342, 123 S.Ct. 1029. “[A] claim can be debatable even though every jurist of reason might agree, after the COA has been granted and the case has" }, { "docid": "7963401", "title": "", "text": "2253(c)(2). “This is a jurisdictional prerequisite because the COA statute mandates that ‘[u]nless a circuit justice or judge issues a certificate of appealability, an appeal may not be taken to the court of appeals....'\" Miller-El v. Cockrell, 537 U.S. 322, 123 S.Ct. 1029, 1039, 154 L.Ed.2d 931 (2003) (quoting 28 U.S.C. § 2253(c)(1)). “The COA statute ... requires a threshold inquiry into whether the circuit court may entertain an appeal.” Id. (quoting Slack v. McDaniel, 529 U.S. 473, 482, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000); citing Hohn v. United States, 524 U.S. 236, 248, 118 S.Ct. 1969, 141 L.Ed.2d 242 (1998)). A COA will be granted only if the petitioner makes “a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). To make such a showing, a 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.” Barefoot v. Estelle, 463 U.S. 880, 893 n. 4, 103 S.Ct. 3383, 77 L.Ed.2d 1090 (1983) (citation and internal quotation marks omitted). Any doubt regarding whether to grant a COA is resolved in favor of the petitioner, and the severity of the penalty may be considered in making this determination. Fuller v. Johnson, 114 F.3d 491, 495 (5th Cir.1997). The analysis “requires an overview of the claims in the habeas petition and a general assessment of their merit.” Miller-El, 123 S.Ct. at 1039. The court must look to the district court’s application of AEDPA to the petitioner’s constitutional claims and determine whether the court’s resolution was debatable among reasonable jurists. Id. “This threshold inquiry does not require full consideration of the factual or legal bases adduced in support of the claims.” Id. Rather, “ ‘[t]he petitioner must demonstrate that reasonable jurists would find the district court’s assessment of the constitutional claims debatable or wrong.’ ” Id. at 1040. (citing Slack, 529 U.S. at 484, 120 S.Ct. 1595). IV. Graves claims first that he is actually innocent of the crime and that the imposition" }, { "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": "21875451", "title": "", "text": "AEDPA, a petitioner must obtain a COA before he can appeal the district court’s denial of habeas relief. See 28 U.S.C. § 2253(c); see also Miller-El v. Cockrell, 537 U.S. 322, 336, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003) (“[Ujntil a COA has been issued federal courts of appeals lack jurisdiction to rule on the merits of appeals from habeas petitioners.”). The COA determination under § 2253(c) requires an overview of the claims in the habeas petition and a general assessment of their merits. We look to the District Court’s application of AEDPA to petitioner’s constitutional claims and ask whether that resolution was debatable amongst jurists of reason. This threshold inquiry does not require full consideration of the factual or legal bases adduced in support of the claims. In fact, the statute forbids it. Miller-El, 537 U.S. at 336, 123 S.Ct. 1029. A COA will be granted only if the petitioner makes “a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). “A petitioner satisfies this standard by demonstrating that jurists of reason could disagree with the district court’s resolution of his constitutional claims or that jurists could conclude the issues presented are adequate to deserve encouragement to proceed further.” Miller-El, 537 U.S. at 327, 123 S.Ct. 1029. Where the district court has denied claims on procedural grounds, a COA should issue only if it is demonstrated that “jurists of reason would find it debatable whether the petition states a valid claim of a denial of a constitutional right and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling.” Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000). “The question is the debatability of the underlying constitutional claim, not the resolution of that debate.” Miller-El, 537 U.S. at 342, 123 S.Ct. 1029. “Indeed, a claim can be debatable even though every jurist of reason might agree, after the COA has been granted and the case has received full consideration, that petitioner will not prevail.” Id. at 338, 123 S.Ct. 1029. Moreover, “[b]ecause" }, { "docid": "22327724", "title": "", "text": "3, 2005. Because the petition was signed on October 31, 2005, the district court deemed it filed on that date pursuant to the prisoner mailbox rule. Fed. R.App. P. 4(c). Certificate of Appealability A COA is a jurisdictional prerequisite to our review. Miller-El v. Cockrell, 537 U.S. 322, 336, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003). We will issue a COA only if Clark makes a “substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). To make this showing, he must establish that “reasonable jurists could debate whether ... the petition should have been resolved [by the district court] 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). Insofar as the district court dismissed Clark’s habeas petition on procedural grounds, Clark must demonstrate both that “jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling.” Id. “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 ei ther that the district court erred in dismissing the petition or that the petitioner should be allowed to proceed further.” Id. We review the district court’s factual findings for clear error and its legal conclusions de novo. English v. Cody, 241 F.3d 1279, 1282 (10th Cir.2001). Because Clark’s petition was filed on October 31, 2005, almost two years after his conviction became final, his petition is untimely absent statutory or equitable tolling. Clark claims statutory tolling. Section 2244(d)(1)(B) allows the limitation period to begin as of “the date on which the impediment to filing an application created by State action in violation of the Constitution or laws of the United States is removed, if the applicant was prevented from filing by such State action.” Clark claims this provision" } ]

[ { "docid": "14395600", "title": "", "text": "the court found that the evidence did not show any acts of coercion or intimidation by Chrysler and thus the court did not need to expressly decide the above question. In support of allowing the action is a statement from the legislative history that “Manufacturer coercion or intimidation or threats thereof is actionable by a dealer. * * * where it relates to the termination, cancellation, or nonrenewal of the dealer’s franchise.” U.S.Code Congressional and Administrative News 1956, p. 4603. If coercion or intimidation does compel the dealer to terminate his franchise then certainly “it relates” to the termination and would thus appear to be actionable by the dealer. The lower court instructed the jury that it had to find that the termination by the plaintiff of his dealership was coerced and forced upon him “and that except for the coercive acts of intimidation by defendant’s agent he would not have terminated same” before be could recover for the alleged wrongful franchise termination. We believe it reasonable to interpret the Act as covering an action based on a wrongful termination of a franchise where the dealer was forced to terminate because of the coercive and intimidative acts of the manufacturer. The next question is whether the evidence adduced by appellee is sufficient to support the jury finding of lack of “good faith” in American Motors’ actions. Good faith is defined in section 1221(e) of the Act. This statutory definition has been construed literally by the courts so that the existence or non-existence of good faith must be determined in a context of actual or threatened coercion or intimidation. 7 A.L.R.3d 1182. Judicial treatment of the factual question of what constitutes a lack of good faith .has been primarily negative as courts have set out what does not constitute a lack of good faith rather than setting standards of what constitutes lack of good faith. Courts have, for example, held that a threat of cancellation if there should be a prolonged failure on the part of the dealer to heed the recommendations or yield to persuasions of the manufacturer that the" } ]

[ { "docid": "11892963", "title": "", "text": "cert. denied, 369 U.S. 887, 82 S.Ct. 1161, 8 L.Ed.2d 288 (1962). . Kotula v. Ford Motor Co., 338 F.2d 732 (8th Cir. 1964), cert. denied, 380 U.S. 979, 85 S.Ct. 1333, 14 L.Ed.2d 273 (1965); see also Milos v. Ford Motor Co., 317 F.2d 712 (3rd Cir.), cert. denied, 375 U.S. 896, 84 S.Ct. 172, 11 L.Ed.2d 125 (1963). . Pierce Ford Sales Co., Inc. v. Ford Motor Co., 299 F.2d 425 (2d Cir.), cert. denied, 371 U.S. 829, 83 S.Ct. 24, 9 L.Ed.2d 66 (1962). . Salco Corp. v. General Motors Corp., 517 F.2d 567 (10th Cir. 1975). . David R. McGeorge Car Co. v. Leyland Motor Sales, 504 F.2d 52 (4th Cir. 1974). In McGeorge the manufacturer cut the dealer’s supply of Triumphs in an effort to persuade the dealer to deal also in Rover and Land Rover automobiles. The dealer refused to accept the Rover line. It was already carrying a competing line of luxury foreign cars, the Mercedes Benz. The Fourth Circuit held that the conduct of the manufacturer in shorting McGeorge in the delivery of Triumphs in its effort to compel acceptance of Rover and Land Rover constituted a lack of good faith under the Act. The court said that a manufacturer’s coercive attempt to force unwanted automobiles on a dealer during the franchise term constituted bad faith dealing for purposes of the Act. It was the tying arrangement which was ruled to demonstrate the requisite lack of good faith. At the same time, it was indicated that the full line requirement could be imposed in connection with franchise renewal. . Rea v. Ford Motor Co., 497 F.2d 577 (3rd Cir.), cert. denied, 419 U.S. 868, 95 S.Ct. 126, 42 L.Ed.2d 106 (1974). . The decision in Junikki arose on denial of the motion to dismiss and thus the merits were not presented. However, there, as in the case at bar, the conduct offered for the purpose of showing bad faith was the withholding of a supply of cars, parts and equipment. Allegedly this was aimed at coercing the dealer to relinquish his franchise." }, { "docid": "23315610", "title": "", "text": "2850, 84th Cong.2d Sess. 9, U.S.Code Congressional and Administrative News 1956, p. 4596. Judicial construction has applied the context of coercion doctrine in determining good faith. Leach v. Ford Motor Co., supra; Staten Island Motors, Inc. v. American Motors Sales Corporation, supra. In one case, however, the statutory definition of good faith was apparently overlooked and it was said that the trial courts were allowed a “wide discretion in giving specific formulation to the immensely vague term ‘good faith!’ ” It is not strange or shocking that Congress should have restricted the cause of action to cases involving coercion, since one of the principal evils which the Act was designed to remove was the exertion of pressures by the dominant automobile maufaeturers upon dealers to accept automobiles, parts, accessories and supplies which they neither needed nor wanted and which they felt their market would not absorb. S.Rep. No. 2073, 84th Cong. 2d Sess. 2. An automobile manufacturer is not precluded by the Act from including in its contracts with dealers, as the appellee has done here, requirements that dealers shall provide product representation commensurate with the good will attached to its trade name and facilitate the proper sale and servicing of its motor vehicles. The manufacturer is entitled to bargain for the protection of its good name, to provide for the trade acceptance of its wares, and to have a reasonable expectation that those who are marketing its cars have the facilities for coping with the sales efforts of those who are dealing in the products of competitors. Cf. Best Motor and Implement Co. v. International Harvester Co. supra. As is said in the House Report, the Act “does not prohibit the manufacturer from terminating or refusing to renew the franchise of a dealer who is not providing the manufacturer with adequate representation. Nor does the bill curtail the manufacturer’s right to cancel or not to renew an inefficient or undesirable dealer’s franchise.” H.R.Rep. No. 2850, 84th Cong. 2d Sess. 9. We do not think that the good faith requirement, whether viewed in or outside of the context of coercion," }, { "docid": "11892940", "title": "", "text": "the court to take judicial notice of the preliminary injunction. ' Being of the opinion that none of these contentions are meritorious, we affirm. I. The Franchise Act gives to an automobile dealer a federal cause of action against an automobile manufacturer who fails to act in good faith in performing or complying with any of the terms or provisions of the franchise, or in terminating, cancelling, or not renewing the franchise. See 15 U.S.C. Section 1222. Good faith is defined as the duty of a dealer and a manufacturer “to act in a fair and equitable manner toward each other so as to guarantee the one party freedom from coercion, intimidation, or threats of coercion or intimidation from the other party.” 15 U.S.C. Section 1221. One proviso excludes “recommendation, endorsement, persuasion, urging, or argument” as constituting a lack of good faith. Id. Also, the cases have considered mere arbitrariness by a manufacturer as not giving rise to a claim under the Act. It would appear then that the manufacturer’s action in order to lack good faith must be unfair and inequitable in addition to being for the purpose of “coercion” or “intimidation.” The problem becomes difficult in the individual case because the standards are not clear for determining whether the conduct involved qualifies as unfair and inequitable and as being coercion or intimidation. The distinction between illicit pressure and simple recommendation, endorsement, persuasion, urging, etc., is equally difficult. Legislative history does not provide clarification. House Report No. 2850, 84th Cong., 2d Sess. (1956), 1956 U.S.Code Cong. & Admin.News, pp. 4596, 4603, says Manufacturer coercion or intimidation or threats thereof is actionable by the dealer where it relates to performing or complying with any of the terms or provisions of the franchise, or where it relates to the termination, cancellation, or nonrenewal of the dealer’s franchise. The Report goes on to say: Thus, where a dealer’s resistance to manufacturer pressure is related to cancellation or nonrenewal of his franchise a cause of action would arise. However, the Report is quick to explain that the manufacturer is not prohibited from terminating" }, { "docid": "14698843", "title": "", "text": "faith. Aug. 8, 1956, c. 1038, § 1, 70 Stat. 1125; 15 U.S.O. § 1221(e). . “The existence of coercion or intimidation depends upon the circumstances arising in each particular case and may be inferred from a course of conduct. For example, manufacturer pressure, direct or indirect, upon a dealer to accept automobiles, parts, accessories, or supplies which the dealer does not need, want, or feel the market is able to absorb, may in appropriate instances constitute coercion or intimidation. . Bateman v. Ford Motor Company, 302 F.2d 63, 66 (3 Cir. 1962). . H.R.Rep. No. 2850, 84th Cong.2d Sess. 9, U.S.Code Cong. & Admin.News, pp. 4596, 4603 (1956). . Garvin v. American Motor Sales Corporation, 318 F.2d 518 (3 Cir. 1963) ; Woodard v. General Motors Corporation, 298 F.2d 121 (5 Cir. 1962). . Milos v. Ford Motor Company, 317 F.2d 712 (3 Cir. 1963) ; Staten Island Motors, Inc. v. American Motors Sales Corp., 169 F.Supp. 378 (D.N.J.1959). . Frank Chevrolet Co. v. General Motors Corp., 419 F.2d 1054 (6 Cir. 1969). . While the district judge found that Mc-George had not acted in bad faith, we note that business expediency in its relations with both Mercedes and Toyota influenced McGeorge to a large degree in its refusal to accept the dual dealership. Robert Mc-George testified that in the year 1969 his company sold 119 Mercedes, 246 Toyotas and 77 Triumphs. He further testified that his father, David McGeorge, had told him that he liad spoken to' Mercedes-Benz representatives about taking on Rover and that they “frowned” on it and that he felt “they would lift the franchise.” The record further indicates that Toyota was pressing McGeorge to eliminate Triumphs and continue only with Toyota and Mercedes. This possibility played a significant part in Ley-land’s decision to seek another dealer who could guarantee more permanency. . 15 Ü.S.C. § 14. . 15 U.S.C. § 1. . Standard Oil Co. v. United States, 337 U.S. 293, 305-306, 69 S.Ct. 1051, 1058, 93 L.Ed. 1371 (1949). . 15 U.S.C. § 15." }, { "docid": "23253726", "title": "", "text": "renew an inefficient or undesirable dealer’s franchise. H.R.Rep. No. 2850, 84th Cong., 2d Sess. (1956) (hereafter H.Rep.), reprinted in [1956] U.S.Code Cong. & Admin.News, pp. 4596, 4603. We agree that the Dealers’ Act did not extinguish automobile manufacturers’ right to terminate franchised dealers who represent them inadequately and that a dealership may be lawfully terminated when the dealer consistently has violated “a valid and material clause of [his] contract and has failed 'to comply with continuing insistence . . . upon performance.” Victory Motors, 357 F.2d at 432 (emphasis added) (quoting Woodard, supra). But we cannot say that in the circumstances presented here Marquis’ failure to meet his MSR sales quota, taken alone, requires that Chrysler Motors’ actions could not as a matter of law violate the statutory requirement of good faith. The nature of MSR renders it suspect as the single indicator of satisfactory sales performance. Chrysler Motors itself describes MSR as requiring Dodge dealers to perform “at the level of an average dealer in the region.” An “average” necessarily comprehends a range of numbers serving as the basis for computation. It follows that when dealers’ sales figures are averaged, some dealers must have sales levels below that average. The operation of MSR in dealer franchises which on their faces are terminable only for cause has the practical effect of transforming a large proportion of those agreements into franchises terminable at the pleasure of the manufacturer. This point was ably explained by Judge Will in Madsen v. Chrysler Corporation, 261 F.Supp. 488, 491-500 (N.D.Ill.1966), vacated as moot, 375 F.2d 773 (7th Cir. 1967). We recently acknowledged that selective enforcement of unrealistic sales quotas can rise to the level of a Dealers Act violation. Autohaus Brugger, 567 F.2d at 912 (citing Madsen, supra) (dictum). We do not hold that MSR is an inherently coercive or intimidating franchise term or that termination for sub-MSR sales is a per se violation of the Dealers’ Act. We hold only that on these facts, where the dealership operated at sub-MSR levels for a considerable period, during which the sales requirement consistently was treated as" }, { "docid": "12335536", "title": "", "text": "tools made or approved by the manufacturer.” II.Rep.No.2850, 84th Cong., 2d Sess. (1956), quoted at 3 U.S.Code Cong. & Admin.News, p. 4603 (1956). . Paragraph 2(g) of the franchise contract provides: “In the interests of maintaining harmonious relationships between the parties to this agreement, the Dealer shall report promptly in writing to the Chairman of the Company’s Dealer Policy Board, or to such other person as may be designated by. the Executive Committee of the Company from time to time, any act or failure to act on the part of the Company or any of its representatives, which the Dealer deems not to have been, or that the Dealer proposes to use in support of a claim that the Company has not acted, in good faith as to the Dealer. For the purposes of this subparagraph 2(g), the term ‘good faith’ shall mean the Company and its representatives acting in a fair and equitable manner toward the Dealer so as to guarantee the Dealer freedom from coercion, intimidation, or threats of coercion or intimidation from the company.” . The statute has as its purpose to create “a cause of action where none previously existed in that, irrespective of contractual provisions, it grants a right of review in the Federal courts of disputes between automobile manufacturers and tlieir dealers involving the good faith of the manufacturer in complying with, in terminating, or in not renewing franchises.” (Emphasis supplied.) H.Rep.No.2850, 84th Cong., 2d Sess. (1956), quoted at 3 U.S.Code Cong. & Admin.News, p. 4596 (1956). See also Barney Motor Sales v. Cal Sales, Inc., 178 F.Supp. 172 (S.D.Cal.1959). . The pre-trial proceedings, including discovery, and a large part of the trial were conducted on the assumption that Mc-Clanathan’s threats were relevant only to the claim under Section 3 of the Clayton Act. Ford’s principal defense to that claim was that there had been no substantial lessening of competition, a defense which was ultimately accepted, but which was of no relevance under the Dealers’ Act. . McClanathan and a second Ford representative testified that Rea had never indicated to them that he had" }, { "docid": "13808470", "title": "", "text": "shall not be deemed to constitute a lack of good faith.” 15 U.S.C. § 1221(e) (1996). Good faith under the ADDCA has been construed to mean more than mere unfairness, and “must be determined in the context of actual or threatened coercion or intimidation.” David R. McGeorge Car Co. v. Leyland Motor Sales, Inc., 504 F.2d 52, 55-56 (4th Cir.1974), cert. denied, 420 U.S. 992, 95 S.Ct. 1430, 43 L.Ed.2d 674 (1975); see also Gage v. General Motors Corp., 796 F.2d 345, 351 (10th Cir.1986); Wallace Motor Sales, Inc. v. American Motors Sales Corp., 780 F.2d 1049, 1056 (1st Cir.1985); Autohaus Brugger, Inc. v. Saab Motors, Inc., 567 F.2d 901, 911 (9th Cir.1978), cert. denied, 436 U.S. 946, 98 S.Ct. 2848, 56 L.Ed.2d 787 (1978). Only if a manufacturer’s conduct amounts to actual or threatened coercion or intimidation does a manufacturer fail to act in good faith for purposes of the ADDCA. Eastern Auto Distribs., Inc. v. Peugeot Motors of America, Inc., 795 F.2d 329, 336 (4th Cir.1986); Minson Plymouth, Inc. v. Chrysler Motors Corp., 554 F.2d 1266, 1267 (4th Cir.1977); R.D. Imports Ryno Indus., Inc. v. Mazda Distributors (Gulf), Inc., 807 F.2d 1222, 1227 (5th Cir.), cert. denied, 484 U.S. 818, 108 S.Ct. 75, 98 L.Ed.2d 38 (1987). Mere “discriminatory allocation, without the concomitant of coercion, does not constitute conduct proscribed by the Act.” Ed Houser Enters. v. General Motors Corp., 595 F.2d 366, 371 (7th Cir.1978). The existence of coercion or intimidation may be inferred from a course of conduct. David R. McGeorge, 504 F.2d at 56 n. 7 (quoting H.Rep. No. 2850, 84th cong., 2d Sess. 9, at 4596, 4603 (1956)). The focus of the inquiry must be on the defendant’s conduct, however, not on the dealer’s perception of coercion or intimidation. Wallace, 780 F.2d at 1056; see also Francis Chevrolet Co. v. General Motors Corp., 602 F.2d 227, 229 (8th Cir.1979) (holding that the plaintiffs feeling “compelled” is not sufficient to establish an ADDCA violation). Every circuit court of appeals that has addressed the issue has held that coercion or intimidation must include a wrongful demand" }, { "docid": "22594409", "title": "", "text": "large automobile manufacturers and local dealerships, protecting dealers from unfair termination and other retaliatory and coercive practices. See, e.g., Maschio v. Prestige Motors, 37 F.3d 908, 910 (3d Cir.1994); Hanley v. Chrysler Motors Corp., 433 F.2d 708, 710-11 (10th Cir.1970). It is, essentially, a supplement to the national antitrust laws, passed to counter-balance the economic leverage a manufacturer has over its ostensibly independent dealers, and its “control over [its] product in what amounts to quasi-inte gration to the retail level of distribution.” H.R.Rep. No. 2850, 84th Cong.,.2d Sess. 1, 8, reprinted in 1956 U.S.C.C.A.N. 4596, 4596, 4598. There are four elements of an ADDCA cause of action: (1) the plaintiff must be an automobile dealer; (2) the defendant must be an “automobile manufacturer” engaged in commerce; (3) there must be a manufacturer-dealer relationship embodied in a written .franchise agreement; and (4) the plaintiff must have been injured by the defendant’s failure to act in good faith. See 15 U.S.C. § 1222; Maschio, 37 F.3d at 910; Sherman v. British Leyland Motors, Ltd., 601 F.2d 429, 441 (9th Cir.1979). It is axiomatic that any inquiry as to the meaning of a statute must begin with its language. The Act defines the term “good faith” as “the duty of each party to any franchise ... to act in a fair and equitable manner toward each other so as to guarantee the one party freedom from coercion, intimidation, or threats of coercion or intimidation from the other party....” 15 U.S.C. § 1221(e). The Act, however, does not protect dealers against all unfair practices, but only against those breaches of good faith “evidenced, by acts of coercion or intimidation.” Salco Corp. v. General Motors Corp., 517 F.2d 567, 573 (10th Cir.1975). The case law plainly requires actual, or threatened, coercion or intimidation as an element of an ADDCA claim. See General GMC, Inc. v. Volvo White Truck Corp., 918 F.2d 306, 308 (1st Cir.1990); Arnold Pontiac-GMC, Inc. v. General Motors Corp., 786 F.2d 564, 575 (3d Cir.1986); Bob Maxfield, Inc. v. American Motors Corp., 637 F.2d 1033, 1038 (5th Cir.1981). Consequently, it is well" }, { "docid": "13808477", "title": "", "text": "of good faith under the ADDCA. Id. at 1211 (citations omitted). The court noted that “Honda’s suggestion did not present a ‘condition[ ] which benefit[ed] only, or primarily, the manufacturer,’ as is typically the case in cases of ‘coercion.’ ” Id. at 1210 (quoting Volkswagen Interamericana v. Rohlsen, 360 F.2d 437, 442 (1st Cir.), cert. denied, 385 U.S. 919, 87 S.Ct. 230, 17 L.Ed.2d 143 (1966)); see R.D. Imports, 807 F.2d. at 1227 (finding no coercion where manufacturer suggested way for dealer to obtain excess cars in addition to its normal allocation). 1. Alleged Malallocation to Dealers The plaintiffs rely primarily on two cases, David R. McGeorge, 504 F.2d 52, and Southern Pines, 826 F.2d 1360, to support their malallocation theory. McGeorge Car Company, a dealership which sold automobiles from Mercedes-Benz, Triumph, and Toyota throughout the 1960s, brought suit against British Leyland for violation of the ADDCA. 504 F.2d at 53-54. In 1967, British Leyland gained control of both Triumph and Rover, two British automobile makers. Id. at 54. Shortly thereafter, British Leyland proposed that dealers throughout the United States begin to sell Rovers as well as Triumphs. Id. When McGeorge declined this proposal based on its assessment that the Rover had little sales potential and would compete with the Mercedes-Benz line, Leyland retaliated. It cut McGeorge’s supply of Triumphs by 50% in 1969 and an additional 16% in 1970. Id. Other Virginia dealers saw cutbacks of 25% in 1969 (due to a supply shortage, the nationwide supply of Triumphs was down 10 — 20%) and increases of up to 93% in 1970. In September 1970, Leyland refused to renew its dealership agreement with McGeorge. Id. On these facts, the Fourth Circuit upheld the District Court’s finding of coercion, and the corresponding liability on the ADDCA claim, concerning the malalloeation of automobiles. Id. at 55. In Southern Pines, Chrysler and the dealer entered into a “full-line agreement” whereby Chrysler agreed to provide and Southern Pines agreed to buy a complete selection of Chrysler automobiles. 826 F.2d at 1362. At some point Chrysler attempted to force Southern Pines to engage in" }, { "docid": "14698831", "title": "", "text": "Sales Corporation v. Semke, 384 F.2d 192 (10 Cir. 1967), and it now appears to be settled that a manufacturer’s coercive attempt to force unwanted automobiles on a dealer constitutes bad faith dealing for purposes of the Act. American Motor Sales v. Semke, supra, and see House Report No. 2850, 84th Cong.2d Sess. 9, 3 U.S.Code Cong. & Admin.News, pp. 4596, 4603 (1956). We think it reasonable to read into McGeorge’s dealership agreement an implied provision that in the event of a strike or casualty occasioning a reduction in the number of Triumphs exported to this Country the manufacturer would treat its dealers ratably and equitably. The district court’s finding of coercion in the cutback of Triumphs is fully supported by the evidence, and the DDICA gives McGeorge a' remedy for the loss of profits suffered by it as a result of this discriminatory action taken by Leyland in an effort to compel McGeorge to make a concession which was not required of it under the terms of its dealership. The more troublesome question on this aspect of this appeal is whether the district court was correct in holding that the non-renewal of ■ McGeorge’s dealership did not also constitute bad faith dealing under the Act. The district court concluded that Leyland’s decision not to renew was made after the failure of the coercive measures and not as a continuing part thereof, and that although Leyland had acted in bad faith with respect to the shortages, the refusal to renew was based upon a rational business decision. We are inclined to agree with this conclusion. The evidence clearly demonstrates that it was in the best interests of Leyland to market its Triumph and Rover lines in the United States through dual dealerships and, indeed, that such dual dealerships were its only hope of improving the rather disappointing market performance of the Rovers. When McGeorge declined to accept such a dual dealership Leyland had a perfectly legitimate reason to refuse to renew its Triumph franchise. With no further contractual obligations to Mc-George, Leyland’s decision to obtain a dealer who would carry" }, { "docid": "14698830", "title": "", "text": "resale of the commodity is obvious, and in our opinion places this case beyond the pale of Robinson-Patman. We conclude that Robinson-Patman was an improper basis for the judgment below. II We do agree with the district court that Leyland’s conduct in “shorting” McGeorge in the delivery of Triumphs in an attempt to compel it to accept the Rover and Land Rover lines constituted a lack of good faith on its part under the Dealers Day in Court Act. The DDICA, which has been described as “a fringe area of antitrust law * * * designed in part to supplement [those] laws,” requires the manufacturer to act in good faith in carrying out the provisions of the franchise as well as in its termination, cancellation or non-renewal. Good faith, which is defined in Section 1(e) of the Act, has been construed literally by the courts and must be determined in the context of actual or threatened coercion or intimidation, Lawrence Chrysler Plymouth, Inc. v. Chrysler Corp., 461 F.2d 608 (7 Cir. 1972) ; American Motor Sales Corporation v. Semke, 384 F.2d 192 (10 Cir. 1967), and it now appears to be settled that a manufacturer’s coercive attempt to force unwanted automobiles on a dealer constitutes bad faith dealing for purposes of the Act. American Motor Sales v. Semke, supra, and see House Report No. 2850, 84th Cong.2d Sess. 9, 3 U.S.Code Cong. & Admin.News, pp. 4596, 4603 (1956). We think it reasonable to read into McGeorge’s dealership agreement an implied provision that in the event of a strike or casualty occasioning a reduction in the number of Triumphs exported to this Country the manufacturer would treat its dealers ratably and equitably. The district court’s finding of coercion in the cutback of Triumphs is fully supported by the evidence, and the DDICA gives McGeorge a' remedy for the loss of profits suffered by it as a result of this discriminatory action taken by Leyland in an effort to compel McGeorge to make a concession which was not required of it under the terms of its dealership. The more troublesome question on" }, { "docid": "13808507", "title": "", "text": "after August 8, 1956 to act in good faith in performing or complying with any of the terms or provisions of the franchise, or in terminating, canceling, or not renewing the franchise with said dealer: Provided, That in any such suit the manufacturer shall not be barred from asserting in defense of any such action the failure of the dealer to act in good faith. . Dealers also made a warranty claim. Because they have presented no evidence regarding this claim it will be considered abandoned. . The Fourth Circuit read into the dealership agreement an implied provision that in the event of a supply shortage the manufacturer would treat its dealers equitably. David R. McGeorge, 504 F.2d at 56. . This conclusion is strengthened by Dealers’ counsel’s statements at oral argument that Dealers suffered no further harm after Chrysler modified its operations to allocate vehicles on a weekly basis and that Dealers may have suffered no harm at any time distinct from other dealerships within the Zone. (Transcript of Hearing on September 4, 1996 at 24, 33.) . The committee emphasized that the bill does not afford the dealer the right to be free from competition from additional franchise dealers. H.Rep. No. 2850, 84th Cong., 2d Sess. (1956), 3 U.S.Code Cong. & Adm.News, pp. 4596, 4603-4604 (1956). Appointment of added dealers in an area is a normal competitive method for securing better distribution, and curtailment of this right would be inconsistent with the antitrust objectives of this legislation. Id . Under the bill, a manufacturer does not guarantee the dealer a profitable operation or freedom from depletion of investment. Id. . The lack of figures in the experts' report, while not crucial in this case, leaves the fact finder without a reference point by which to judge the data. Because they offer no concrete figures, the basis for comparison is diminished. . Plaintiffs’ experts also fail to offer proof of similarities between Dealers and the two dealerships chosen for comparison, other than their location in the same distribution Zone. See Deas, 775 F.2d at 1506-07 & n. 22 (finding" }, { "docid": "21891520", "title": "", "text": "or threats of coercion or intimidation from the other party: Provided, That recommendation, endorsement, exposition, persuasion, urging or argument shall not be deemed to constitute a lack of good faith.” (Emphasis supplied) 15 U.S. C. § 1221(e) This statutory definition has been construed literally by the Courts so that the existence or non-existence of lack of good faith must be determined in a context of actual or threatened coercion or intimidation. H.R.Rep.No.2850, 84th Cong. 2d Session, U.S.Code Cong, and Admin.News pp. 4596, 4603 (1956); 7 A.L.R.3d 1182. The Courts have uniformly and consistently held that there can be no recovery under the Act without a showing that the manufacturer was engaged in coercion, intimidation or threats of coer cion or intimidation with respect to the dealer. It appears there is no question that “failure to exercise good faith” within the meaning of the Act has a limited, restricted meaning. It does not mean “good faith” in a hazy, general way, nor does it mean unfairness, but the absence of coercion or intimidation. The burden of proving coercion is plaintiff’s. It must show that it was coerced in some way into doing something it had a lawful right not to do, under the threat of sanctions which would otherwise be applied. But more is required than simply coercion and failure to submit, for otherwise the manufacturer would be precluded from insisting upon reasonable and valid contractual provisions. Woodard v. General Motors Corp., 298 F.2d 121 (5th Cir.), cert. denied, 369 U.S. 887, 82 S.Ct. 1161, 8 L.Ed.2d 288 (1962); Berry Brothers Buick, Inc. v. General Motors Corp., D. C., 275 F.Supp. 542, aff’d per curiam, 377 F.2d 552 (3rd Cir. 1967). The evidence presented in this trial clearly shows the absence of any of the prohibitive acts of coercion or intimidation or threats thereof on the part of Pontiac. B. Plaintiff’s Specific Allegations There is no evidence in this record from which a jury could rationally infer that Pontiac failed to act in good faith, in the context of coercion and intimidation, with regard to the distribution and availability of new" }, { "docid": "14698829", "title": "", "text": "Seventh Circuit held that a wholesaler’s delivery of lumber to a builder consistently later than contractually specified dates, while delivering lumber orders of the builder’s competitors on time, was discrimination among purchasers in the furnishing of a service, i.e., delivery connected with the resale of a commodity. We are unable to agree with the conclusion of the district court for even if we were to accept the Seventh Circuit’s characterization of delivery as a “service,” factual distinctions in the present ease render Centex-Winston in-apposite. Unlike Centex-Winston in which the defendant contracted to deliver the commodities, the dealership agreement involved here required McGeorge to accept delivery of Triumphs at their point of arrival in Baltimore or engage independent transporters at its own risk. The record reveals that McGeorge frequently sent individual employees to Baltimore for the express purpose of driving new ears back to Richmond. The district court’s reliance on Centex-Winston was thus misplaced. That Leyland was discriminating in the allocation of Triumphs, the commodity itself, as opposed to a service or facility connected with the resale of the commodity is obvious, and in our opinion places this case beyond the pale of Robinson-Patman. We conclude that Robinson-Patman was an improper basis for the judgment below. II We do agree with the district court that Leyland’s conduct in “shorting” McGeorge in the delivery of Triumphs in an attempt to compel it to accept the Rover and Land Rover lines constituted a lack of good faith on its part under the Dealers Day in Court Act. The DDICA, which has been described as “a fringe area of antitrust law * * * designed in part to supplement [those] laws,” requires the manufacturer to act in good faith in carrying out the provisions of the franchise as well as in its termination, cancellation or non-renewal. Good faith, which is defined in Section 1(e) of the Act, has been construed literally by the courts and must be determined in the context of actual or threatened coercion or intimidation, Lawrence Chrysler Plymouth, Inc. v. Chrysler Corp., 461 F.2d 608 (7 Cir. 1972) ; American Motor" }, { "docid": "737994", "title": "", "text": "proper subjects but unreasonable time for compliance). In any event, several courts have held that a manufacturer’s insistence that a dealer accept an unfair allocation of automobiles may form the basis for a suit under the Dealer’s Act. See Sherman v. British Leyland Motors, Ltd., 601 F.2d 429, 445-46 (9th Cir.1979); Autohaus Brugger, 567 F.2d at 914; American Motors Sales Corp. v. Semke, 384 F.2d 192, 195 (10th Cir.1967); David R. McGeorge Car Co. v. Leyland Motor Sales, Inc., 504 F.2d 52, 55-56 (4th Cir.1974), cert. denied, 420 U.S. 992, 95 S.Ct. 1430, 43 L.Ed.2d 674 (1975). Indeed, the legislative history of the Act plainly demonstrates that Congress intended for such conduct to be actionable: [t]he existence of coercion or intimidation depends upon the circumstances arising in each particular case and may be inferred from a course of conduct. For example, manufacturer pressure, direct or indirect, upon a dealer to accept automobiles, parts, accessories, or supplies which the dealer does not need, want, or feel the market is able to absorb, may in appropriate circumstances constitute coercion or intimidation. H.R.Rep. No. 2850, 84th Con., 2d Sess. 9 (1956), reprinted in 1956 U.S.Code Cong. & Ad.News 4596, 4603; Here, as in Semke, plaintiff alleges that defendant required it to accept cars and parts that it did not want and that it was forced by the downturn caused by that conduct to give up its franchise. If, in addition to this, it is necessary that an implied threat of sanctions exists, though plaintiff does not make the argument we think that such a threat lies in the fact that under the agreement, ¶ 11, plaintiff was required to keep a stock of cars, parts, and accessories adequate to meet defendant’s requirements, and if he did not, cause for termination might exist under id. ¶ 52(b). Had plaintiff refused to accept the cars he did not want, a breach of the “adequate stock” requirement might have resulted. Count 3 therefore describes conduct that may give rise to a claim under the Dealer’s Act. Defendant argues, however, that since it is not a manufacturer" }, { "docid": "11892941", "title": "", "text": "good faith must be unfair and inequitable in addition to being for the purpose of “coercion” or “intimidation.” The problem becomes difficult in the individual case because the standards are not clear for determining whether the conduct involved qualifies as unfair and inequitable and as being coercion or intimidation. The distinction between illicit pressure and simple recommendation, endorsement, persuasion, urging, etc., is equally difficult. Legislative history does not provide clarification. House Report No. 2850, 84th Cong., 2d Sess. (1956), 1956 U.S.Code Cong. & Admin.News, pp. 4596, 4603, says Manufacturer coercion or intimidation or threats thereof is actionable by the dealer where it relates to performing or complying with any of the terms or provisions of the franchise, or where it relates to the termination, cancellation, or nonrenewal of the dealer’s franchise. The Report goes on to say: Thus, where a dealer’s resistance to manufacturer pressure is related to cancellation or nonrenewal of his franchise a cause of action would arise. However, the Report is quick to explain that the manufacturer is not prohibited from terminating or refusing to renew the franchise of a dealer who is not providing the manufacturer with adequate representation and, further, that the Act does not prevent a manufacturer from cancelling or not renewing an ineffective or undesirable dealer’s franchise. Also, appointment of added dealers according to the House Report is a normal competitive method for securing a better distribution. Hence, curtailment of this “would be inconsistent with the antitrust objectives of this legislation.” 1956 USCCAN, pp. 4603-04. The Committee Report specifies one practice which constitutes coercion or intimidation and that is pressure by the manufacturer on the dealer to accept automobiles, parts or accessories or supplies not needed. Thus an effort to compel a dealer to sell a specified quota of its automobiles, parts or accessories would be coercion. This is in contrast to normal sales recommendation or persuasion. The line may indeed be thin between normal recommendation and coercion or intimidation. It is important to be mindful that it was the unequal bargaining power between the manufacturer and the dealer and the abuses resulting" }, { "docid": "21891519", "title": "", "text": "as to the rest of the claims from October 27, 1966 to October 27, 1969. A. The Requirements of the Dealer Act The question to be resolved is whether the evidence adduced at the trial is legally sufficient to support a finding of lack of “good faith” as that term is defined in the Act. The Act creates a cause of action only in two specific instances: (1) when the manufacturer fails to act in good faith in terminating, cancelling or failing to renew the written franchise agreement with the dealer, or (2) when the manufacturer fails to act in good faith in complying with the terms of that written franchise agreement. Only the second aspect of the Act is involved herein Good faith is specifically defined in the Act, as follows: “The term ‘good faith’ shall mean the duty of each party to any franchise, and all officers, employees, or agents thereof to act in a fair and equitable manner toward each other so as to guarantee the one party freedom from coercion, intimidation, or threats of coercion or intimidation from the other party: Provided, That recommendation, endorsement, exposition, persuasion, urging or argument shall not be deemed to constitute a lack of good faith.” (Emphasis supplied) 15 U.S. C. § 1221(e) This statutory definition has been construed literally by the Courts so that the existence or non-existence of lack of good faith must be determined in a context of actual or threatened coercion or intimidation. H.R.Rep.No.2850, 84th Cong. 2d Session, U.S.Code Cong, and Admin.News pp. 4596, 4603 (1956); 7 A.L.R.3d 1182. The Courts have uniformly and consistently held that there can be no recovery under the Act without a showing that the manufacturer was engaged in coercion, intimidation or threats of coer cion or intimidation with respect to the dealer. It appears there is no question that “failure to exercise good faith” within the meaning of the Act has a limited, restricted meaning. It does not mean “good faith” in a hazy, general way, nor does it mean unfairness, but the absence of coercion or intimidation. The burden of" }, { "docid": "14698832", "title": "", "text": "this aspect of this appeal is whether the district court was correct in holding that the non-renewal of ■ McGeorge’s dealership did not also constitute bad faith dealing under the Act. The district court concluded that Leyland’s decision not to renew was made after the failure of the coercive measures and not as a continuing part thereof, and that although Leyland had acted in bad faith with respect to the shortages, the refusal to renew was based upon a rational business decision. We are inclined to agree with this conclusion. The evidence clearly demonstrates that it was in the best interests of Leyland to market its Triumph and Rover lines in the United States through dual dealerships and, indeed, that such dual dealerships were its only hope of improving the rather disappointing market performance of the Rovers. When McGeorge declined to accept such a dual dealership Leyland had a perfectly legitimate reason to refuse to renew its Triumph franchise. With no further contractual obligations to Mc-George, Leyland’s decision to obtain a dealer who would carry out its marketing policy with respect to both Triumphs and Rovers was based on sound business considerations free from the “coercion or intimidation” proscribed by the Act. The plaintiff contends, however, that Leyland’s conduct in its efforts to coerce McGeorge in the 1969-70 period fatally infected its 1970 decision to transfer the dual line to another dealer. To accept this charge of continuing bad faith, however, would permanently preclude Leyland from making any change in its marketing procedures at any time in the future and, in effect, the bond between dealer and manufacturer would be indissoluble. “A franchise is not a marriage for life,” and the Act does not prohibit the manufacturer from terminating or refusing to renew the franchise of a dealer who is not providing the manufacturer with adequate representation or who refuses to carry out its legitimate marketing policies. “Nor does the [Act] curtail the manufacturer’s right to cancel or not renew an inefficient or undesirable dealer’s franchise.” It has been held that under the Act a manufacturer is not precluded from" }, { "docid": "14698842", "title": "", "text": "act in good faith in performing or complying with any of the terms or provisions of the franchise, or in terminating, canceling, or not renewing the franchise with said dealer: Pro vided, That in any such suit the manufacturer shall not be barred from asserting in defense of any such action the failure of the dealer to act in good faith. Aug. 8, 1956, c. 1038, § 2, 70 Stat. 1125; 15 U.S.O. § 1222. . Autowest, Inc. v. Peugeot, Inc., 434 F.2d 556, 561 (2 Cir. 1970). . § 1221. Definitions As used in this chapter'— ❖ * * * * (e) The term “good faith” shall mean the duty of each party to any franchise, and all officers, employees, or agents thereof to act in a fair and equitable manner toward each other so as to guarantee the one party freedom from coercion, intimidation, or threats of coercion or intimidation from the other party: Provided, That recommendation, endorsement, exposition, persuasion, urging or argument shall not be deemed to constitute a lack of good faith. Aug. 8, 1956, c. 1038, § 1, 70 Stat. 1125; 15 U.S.O. § 1221(e). . “The existence of coercion or intimidation depends upon the circumstances arising in each particular case and may be inferred from a course of conduct. For example, manufacturer pressure, direct or indirect, upon a dealer to accept automobiles, parts, accessories, or supplies which the dealer does not need, want, or feel the market is able to absorb, may in appropriate instances constitute coercion or intimidation. . Bateman v. Ford Motor Company, 302 F.2d 63, 66 (3 Cir. 1962). . H.R.Rep. No. 2850, 84th Cong.2d Sess. 9, U.S.Code Cong. & Admin.News, pp. 4596, 4603 (1956). . Garvin v. American Motor Sales Corporation, 318 F.2d 518 (3 Cir. 1963) ; Woodard v. General Motors Corporation, 298 F.2d 121 (5 Cir. 1962). . Milos v. Ford Motor Company, 317 F.2d 712 (3 Cir. 1963) ; Staten Island Motors, Inc. v. American Motors Sales Corp., 169 F.Supp. 378 (D.N.J.1959). . Frank Chevrolet Co. v. General Motors Corp., 419 F.2d 1054 (6 Cir. 1969). ." }, { "docid": "14698825", "title": "", "text": "FIELD, Circuit Judge: David R. McGeorge Car Co., Inc., (McGeorge) brought this action against Leyland Motor Sales, Inc., (Leyland) and its parent corporation, British Ley-land Motors, Inc., alleging that an arrangement in the sale of automobiles constituted bad faith dealing in violation of the Dealers Day in Court Act (DDICA), 15 U.S.C. § 1222, and was also in violation of federal antitrust statutes. The district court awarded relief under the DDICA and the Robinson-Patman Act for Leyland’s deliberate shortage of one line of automobiles to McGeorge in an attempt to coerce its acceptance of additional lines. However, the district court refused to grant relief under either the DDICA or the antitrust acts for British Leyland’s refusal to renew McGeorge’s dealership, after the latter had declined the additional lines of automobiles. Both parties have appealed. David R. McGeorge Car Co., Inc., was founded in 1960 by David R. McGeorge who managed the company until an illness in February of 1970 when his son Robert assumed control. Throughout the 1960’s McGeorge sold three lines of automobiles, Mercedes-Benz from 1960 on, Triumph from 1963 to mid-1970, and Toyota continuously from 1968. None of the cars was competitive with the other since Mercedes-Benz sold for approximately $6000, Triumph for $2800 and Toyota for $2000. McGeorge’s dealership agreement for the sale of Triumphs, signed originally with the Standard Triumph Motor Company in 1963, was renewed for two years in July, 1968, with Leyland Motor Sales, Inc., the northeast regional distributor for British Leyland Motors, Inc., which had acquired the Standard. Triumph Motor Company. In addition to its acquisition of Triumph, in April of 1967 British Leyland purchased The Rover Company, Ltd., manufacturers of Land Rover, a cross-country vehicle, and Rover, a luxury sedan in the Mercedes and BMW class. Shortly thereafter British Leyland initiated a policy designed to couple the high consumer appeal of Triumph with its newly acquired Rover, and Triumph dealers throughout the United States were presented with a proposal that in order to continue selling Triumphs they should begin selling Rovers and Land Rovers. At the time of the proposal, Triumphs, already" } ]

[ { "docid": "15655512", "title": "", "text": "18 U.S.C. § 371, and two counts of money laundering, in violation of 18 U.S.C. §§ 1956, 1957. The district court also upwardly departed three levels from the Sentencing Guidelines based on the amount of loss, number of victims, and number of fraudulent schemes. Corrigan was sentenced to 121 months imprisonment and three years supervised release. He was also assessed a fine of $1,100.00. Corrigan is still under investigation for activity in the Southern District of Ohio, II. On appeal we address two issues: whether the district court erred in imposing a three-level upward departure from the Sentencing Guidelines when sentencing each Defendant; and whether the district court erred in denying Defendant Corrigan a three-level reduction for acceptance of responsibility. III. We first turn to the issue of the-upward departure. Upward departures from the guidelines are permitted where “the court finds that there exists an aggravating or mitigating circumstance of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission.” 18 U.S.C. § 3553(b). In determining whether a departure should be granted the sentencing court should ask four questions: 1) What features of this case, potentially, take it outside of the Guidelines’ “heartland” and make of it a special, or unusual case? 2) Has the Commission forbidden departures based- on those features? 3) If not, has the Commission encouraged departures based - on- those features? 4) If not, has the Commission discouraged departures based on those features? Koon v. United States, — U.S.-,-, 116 S.Ct. 2035, 2045, 135 L.Ed.2d 392 (1996) (citing United States v. Rivera, 994 F.2d 942, 949 (1st Cir.1993)). If the basis for the departure is a discouraged factor, or an encouraged factor, or a factor already taken into account by the Guidelines, the court should only depart if the factor is present to an exceptional degree. Id. This court reviews the district court’s ruling concerning a departure for abuse of discretion. Id. at -, 116 S.Ct. at 2047. Defendants maintain that the district court abused its discretion in granting sua sponte a three-level upward departure from each Defendants’ guideline range. Defendant" } ]

[ { "docid": "494100", "title": "", "text": "a degree, not adequately taken into consideration by the Sentencing Commission in formulating the guidelines that should result in a sentence different from that described. 18 U.S.C. § 3553(b) (emphasis added). The guidelines applicable at the time of Key’s sentencing mentioned the statutorily-created possibility for downward departure in the comment to § 5K2.0, wherein: The Commission does not foreclose the possibility of an extraordinary case that, because of a combination of such characteristics [those not normally relevant to a departure from the guidelines] or circumstances, differs significantly from the “heartland” cases covered by the guidelines in a way that is important to the statutory purposes of sentencing, even though none of the characteristics or circumstances individually distinguishes the case. However, the Commission believes that such cases will be extremely rare. U.S.S.G. § 5K2.0 commentary (emphases added). The statutory and Guidelines provisions prompted the United States Supreme Court to demand that: Before a departure is permitted, certain aspects of the case must be found unusual enough for it to fall outside the heartland of cases in the Guideline. To resolve this question, the district court must make a refined assessment of the many facts bearing on the outcome, informed by its vantage point and day-today experience in criminal sentencing. Whether a given factor is present to a degree not adequately considered by the Commission, or whether a discouraged factor nonetheless justifies departure because it is present in some unusual or exceptional way, are matters determined in large part by comparison with the facts of other Guidelines cases. Koon v. United States, 518 U.S. 81, 98, 116 S.Ct. 2035, 135 L.Ed.2d 392 (1996) (emphasis added). Before the district court may grant a downward departure, it “must, after considering the ‘structure and theory of both relevant individual guidelines and the Guidelines taken as a whole,’ decide whether it is sufficient to take the case out of the Guidelinefs’] heartland.’ ” United States v. Coleman, 188 F.3d 354, 359 (6th Cir.1999) (en banc) (quoting Koon v. United States, 518 U.S. at 96, 116 S.Ct. 2035) (emphasis in original). In the instant case, the district" }, { "docid": "2244841", "title": "", "text": "116 S.Ct. 2035, 135 L.Ed.2d 392 (1996). This analysis is divided into three parts: First, we determine as a theoretical matter whether the stated ground for departure is permissible under the guidelines. If the ground is theoretically appropriate, we next examine whether it finds adequate factual support in the record. If so, we must probe the degree of the departure in order to verify its reasonableness. United States v. Dethlefs, 123 F.3d 39, 43-44 (1st Cir.1997) (internal citations omitted). In employing this analysis, we recognize that “[a] district court’s decision to depart from the Guidelines ... will in most cases be due substantial deference.” Koon, 518 U.S. at 98, 116 S.Ct. 2035. DISCUSSION The United States Sentencing Guidelines establish ranges for the criminal sentences of federal offenders. District courts must impose sentences within the applicable ranges set forth in the Guidelines. See 18 U.S.C. § 3553(a). In limited circumstances, however, a district court may depart from the applicable guideline range if “the court finds that there exists an aggravating or mitigating circumstance of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission in formulating the guidelines....” 18 U.S.C. § 3553(b). Thus, not every aggravating or mitigating circumstance will warrant departure; the circumstance “must render the case atypical and take it out of the ‘heartland’ for which the applicable guideline was designed.” United States v. Carrion-Cruz, 92 F.3d 5, 6 (1st Cir.1996). The Sentencing Guidelines give courts considerable guidance as to what factors are likely, or not, to make a case atypical. In general, these factors fall into four categories. Encouraged factors are those “the [Sentencing] Commission has not been able to take into account fully in formulating the guidelines.” U.S.S.G. § 5K2.0. Thus, when encouraged factors are present, they may take a particular case outside the “heartland” of the applicable guideline, thereby warranting a departure. Conversely, discouraged factors are those “not ordinarily relevant to the determination of whether a sentence should be outside the applicable guideline range.” U.S.S.G. ch. 5, pt. H, introductory cmt. “The Sentencing Commission does not view discouraged factors as necessarily" }, { "docid": "16337792", "title": "", "text": "mitigating circumstance of a kind, or to a degree not adequately taken into consideration by the Sentencing Commission in formulating the guidelines that should result in a sentence different from that described.” 18 U.S.C. § 3553(b); U.S.S.G. § 5K2.0; Koon v. United States, 518 U.S. 81, 92, 116 S.Ct. 2035, 135 L.Ed.2d 392 (1996); United States v. Melvin, 187 F.3d 1316, 1320 (11th Cir.1999). “When a court finds an atypical case, one to which a particular guideline linguistically applies but where the conduct significantly differs from the norm, the court may consider whether a departure is warranted.” See U.S.S.G. ch. 1, pt. A, introductory cmt. 4(b). This Court’s freedom in using the unique factors of a case to depart from the Guidelines is discussed by the Eleventh Circuit in United States v. Melvin, which establishes a two-part test for appropriateness of departure. Melvin, 187 F.3d at 1320. First, this Court must determine whether the Sentencing Commission has prohibited consideration of the factor, in which case departure is prohibited. Id. A factor is prohibited when listed in § 5K2.0(d) or when already taken into consideration in the applicable guideline. Id.; U.S.S.G. § 5K2.0(d) (prohibiting consideration of race, sex, national origin, creed, religion, and socio-economic status among other factors). Second, the court must determine whether the factor takes the case outside the heartland of the applicable guideline. Melvin, 187 F.3d at 1320; Koon, 518 U.S. at 93, 116 S.Ct. 2035. In determining whether a circumstance was taken into consideration, this Court will only consider the sentencing guidelines, and the policy statements and official commentary of the Sentencing Commission. 18 U.S.C.A. § 3553(b); Koon, 518 U.S. at 92,116 S.Ct. 2035. Applying the Melvin test to this case, this Court finds that consideration of the death of Mesika is neither expressly prohibited in the Guidelines nor included in § 2B1.1. Vernier’s theft of Mesika’s property combined with the aggravating circumstances of the victim’s unexplained disappearance (Vernier’s relationship with the victim who was last seen with Vernier, the discovery of Mesika’s blood splattered throughout the back of the van which was in Vernier’s possession until" }, { "docid": "7854307", "title": "", "text": "standard of recklessness, (2) failed to explain the upward departure, and (3) failed to provide adequate notice of intent to depart upward and the basis for the departure. DISCUSSION I. Upward Departure Analysis — An Overview United States v. Collins, 122 F.3d 1297 (10th Cir.1997), sets forth our general framework for reviewing Sentencing Guideline departures following the Supreme Court’s landmark decision in Koon v. United States, 518 U.S. 81, 116 S.Ct. 2035, 135 L.Ed.2d 392 (1996). A sentencing court is permitted to depart from the Guidelines after determining a defendant’s offense level, criminal history category, and the applicable Guideline range “if the court finds ‘that there exists an aggravating or mitigating circumstance of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission in formulating the guidelines.’ ” U.S.S.G. § 5K2.0 (quoting 18 U.S.C. § 3553(b)). The district court must distinguish whether the ease falls under the category of a “heartland ease” or an “unusual case.” See Koon, 518 U.S. at 93, 116 S.Ct. 2035. In Koon, the Court explained the Sentencing Commission intended for “ ‘sentencing courts to treat each guideline as carving out a “heartland,” a set of typical eases embodying the conduct that each guideline describes.’” Id. (quoting U.S.S.G. ch. 1 pt. A, intro, comment. 4(b)). If the case falls outside the heartland (i.e., is not the usual type of case), the court may decide to depart from the prescribed sentencing range. Id. When deciding whether to depart from the Guidelines, the district court may not consider certain “forbidden” factors. Collins, 122 F.3d at 1302. Otherwise, the Sentencing Guidelines do not limit or restrict the grounds available for departure. The Guidelines also list factors that are encouraged factors for departure. If the factor is an encouraged factor, “the court is authorized to depart if the applicable Guideline does not already take it into account.” Id. If the factor is a discouraged factor, or one already taken into account under the Guidelines, “the court should depart only if the factor is present to an exceptional degree or in some other way makes the" }, { "docid": "15933164", "title": "", "text": "range for abuse of discretion. See Koon v. United States, 518 U.S. 81, 99-100, 116 S.Ct. 2035, 135 L.Ed.2d 392 (1996). “A district court by definition abuses its discretion when it makes an error of law.” Id. at 100, 116 S.Ct. 2035. A district court must order a sentence within the relevant guideline range “ ‘unless the court finds that there exists an aggravating or mitigating circumstance of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission in formulating the guidelines that should result in a sentence different from that described.’ ” United States v. Kikumura, 918 F.2d 1084, 1098 (3d Cir.1990) (citing 18 U.S.C. § 3553(b)). In Koon, the Supreme Court noted that the sentencing guidelines provide “considerable guidance ... by listing certain factors as either encouraged or discouraged bases for departure.” 518 U.S. at 94, 116 S.Ct. 2035. Encouraged factors are those “the Commission has not been able to take into account fully in formulating the guidelines.” U.S.S.G. § 5K2.0. Because extreme conduct under U.S.S.G. § 5K2.8 is an encouraged factor, see, e.g., United States v. Lewis, 115 F.3d 1531, 1539 (11th Cir.1997), the sentencing court may depart if the “applicable guideline does not already take it into account,” United States v. Iannone, 184 F.3d 214, 226 (3d Cir.1999). If, on the other hand, the applicable sentencing guideline does take the encouraged factor into account, the sentencing court may depart upward if the encouraged factor “ ‘is present to a degree substantially in excess of that which ordinarily is involved in the offense.’ ” Koon, 518 U.S. at 95, 116 S.Ct. 2035 (quoting U.S.S.G. § 5K2.0). Queensborough’s PSR calculated his offense level as 32 and his Criminal History as I, resulting in a guideline range of 121-151 months imprisonment. As noted above, the District Court, granting an upward departure, sentenced Queensborough to 240 months (20 years) imprisonment on the aggravated rape count and to the statutorily mandated sentence of 60 months on the firearm count, to run consecutively. It is the sentence for the aggravated rape that is the basis for the" }, { "docid": "16012711", "title": "", "text": "U.S. Sentencing Guidelines Manual (U.S.S.G. or Guidelines) § 2S1.1(a)(1) (2000). After further calculations, the district court decided Joe’s Guidelines range was 210-262 months, and imposed a 210-month sentence. The court decided the Guidelines range for Richard was 108 to 135 months, but found Richard’s family situation was outside the heartland of cases contemplated by the Guidelines because he had a significant relationship with his preschool-aged children, his wife had advanced rheumatoid arthritis, and because of Richard’s “extraordinary loyalty, if not blind trust,” in his father. Over the Government’s objection, the district court departed downward from the applicable sentencing range under U.S.S.G. § 5K2.0 and sentenced Richard to 48 months in prison. On appeal, the Government asserts the district court abused its discretion in granting a downward departure from the applicable Guidelines range based on Richard King’s family circumstances and his father’s influence. A district court may not depart below the applicable Guidelines range unless the court finds a “ ‘mitigating circumstances of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission in formulating the guidelines.’ ” U.S.S.G. § 5K2.0 (quoting 18 U.S.C. § 3553(b)). The Commission names certain potential mitigating factors in the Guidelines and either forbids, discourages, or encourages their consideration. See Koon v. United States, 518 U.S. 81, 93-96, 116 S.Ct. 2035, 135 L.Ed.2d 392 (1996). As the Government points out, the Guidelines discourage consideration of family ties and responsibilities as grounds for departure. U.S.S.G. § 5H1.6. Discouraged factors are not ordinarily relevant and support a departure “only if the factor is present to an exceptional degree or in some other way makes the case different from the ordinary case where the factor is present.” Koon, 518 U.S. at 96, 116 S.Ct. 2035. Although we give substantial deference to a district court’s decision that a discouraged factor justifies departure because it is present in some unusual or exceptional way, we compare the circumstances given for departure in the defendant’s case to the circumstances in existing reported Guidelines cases to ensure the district court has not abused its discretion. See id. at 98," }, { "docid": "513191", "title": "", "text": "discretion and special expertise of the district court.” Mendoza, 121 F.3d at 515 (citing Koon, 518 U.S. at -, 116 S.Ct. at 2046-47). Before departing from the Guidelines, the sentencing court must therefore decide whether the considered factor, given the facts and circumstances of the case, “is sufficient to take the case out of the [relevant] Guideline’s heartland. The court must bear in mind the Commission’s expectation that departures based on grounds not mentioned in the Guidelines will be ‘highly infrequent.’ ” Sablan 114 F.3d at 917 (quoting Koon, 518 U.S. at -, 116 S.Ct. at 2045 (quoting U.S.S.G. ch.1, pt. A)). Moreover, the factor of cultural assimilation is akin to the factor of “family and community ties” discussed under U.S.S.G. § 5H1.6. Thus, to the extent that cultural assimilation denotes family and community ties, we hold that the district court has the authority to depart on this basis in extraordinary circumstances. Under U.S.S.G. § 5H1.6, “[family ties and responsibilities and community ties are not ordinarily relevant in determining whether a sentence should be outside the applicable guideline range.” U.S.S.G. § 5H1.6. But under U.S.S.G § 5K2.0, such circumstances may be relevant if “present to an unusual degree” such that the case is distinguished “from the ‘heartland’ eases ... in a way that is important to the statutory purposes of sentencing.” U.S.S.G. § 5K2.0; see also United States v. Mondello, 927 F.2d 1463, 1470 (9th Cir.1991) (holding that a court may rely on factors listed in U.S.S.G. § 5H1.1-.6 to justify a departure “in extraordinary circumstances”). Whether a defendant’s family and community ties are sufficiently “unusual” or “extraordinary” to warrant departure in a particular case is a factual determination that also lies within the discretion of the district court. See Koon, 518 U.S. at ---, 116 S.Ct. at 2046-2047; see also U.S.S.G. § 5K2.0 (“Presence of any such factor may warrant departure ..., under some circumstances, in the discretion of the sentencing court.”). The government attempts to equate cultural assimilation with the prohibited ground of the threat of future deportation. We have consistently held that a sentencing court cannot downwardly" }, { "docid": "494099", "title": "", "text": "protection theory within his evidence suppression motion in the district court, that contention must be deemed waived. See Fed. R.Crim.P. 12(b)(3) (dictating that a motion to suppress evidence “must be raised prior to trial.”) The Sixth Circuit has emphasized that it is “categorically without jurisdiction to hear appeals of suppression issues raised for the first time on appeal.” United States v. Yannott, 42 F.3d 999, 1005 (6th Cir.1994) (quoting United States v. Crismon, 905 F.2d 966, 969 (6th Cir.1990) (per curiam)). Finally, the panel has considered the government’s challenge to the downward departure in Key’s sentencing. A district court’s decision to depart downward from the Sentencing Guidelines range is reviewed for an abuse of discretion. See Koon v. United States, 518 U.S. 81, 96-100, 116 S.Ct. 2035, 135 L.Ed.2d 392 (1996). A court’s discretion to depart downwards is governed by statute: The Court shall impose a sentence of the kind, and within the range [determined by the guidelines] unless the Court finds that there exists an aggravating or mitigating circumstance of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission in formulating the guidelines that should result in a sentence different from that described. 18 U.S.C. § 3553(b) (emphasis added). The guidelines applicable at the time of Key’s sentencing mentioned the statutorily-created possibility for downward departure in the comment to § 5K2.0, wherein: The Commission does not foreclose the possibility of an extraordinary case that, because of a combination of such characteristics [those not normally relevant to a departure from the guidelines] or circumstances, differs significantly from the “heartland” cases covered by the guidelines in a way that is important to the statutory purposes of sentencing, even though none of the characteristics or circumstances individually distinguishes the case. However, the Commission believes that such cases will be extremely rare. U.S.S.G. § 5K2.0 commentary (emphases added). The statutory and Guidelines provisions prompted the United States Supreme Court to demand that: Before a departure is permitted, certain aspects of the case must be found unusual enough for it to fall outside the heartland of cases in" }, { "docid": "23024128", "title": "", "text": "review of [a] discretionary degree-of-departure question, we are informed by, and must take account of, the fact that the district court would have enhanced discretion upon remand after Booker. Serrata, 425 F.3d at 912 (reviewing pre-Booker downward departure). 2. District court’s decision to depart upward. A sentencing court is permitted to depart from the Guidelines after determining a defendant’s offense level, criminal history category, and the applicable Guideline range “if the court finds ‘that there exists an aggravating or mitigating circumstance of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission in formulating the guidelines.’ ” U.S.S.G. § 5K2.0 (quoting 18 U.S.C. § 3553(b)). The district court must distinguish whether the case falls under the category of a “heartland case” or an “unusual case.” See Koon [v. United States, 518 U.S. 81, 93, 116 S.Ct. 2035, 135 L.Ed.2d 392 (1996) ]. In Koon, the [Supreme] Court explained the Sentencing Commission intended for sentencing courts to treat each guideline as carving out a “heartland”, a set of typical cases embodying the conduct that each guideline describes. If the case falls outside the heartland (¿a, is not the usual type of case), the court may decide to depart from the prescribed sentencing range. When deciding whether to depart from the Guidelines, the district court may not consider certain forbidden factors [such as race, sex, national origin, creed, religion, socioeconomic status, lack of guidance as a youth, drug or alcohol dependence, and economic duress]. Otherwise, the Sentencing Guidelines do not limit or restrict the grounds available for departure. The Guidelines also list factors that are encouraged factors for departure. If the factor is an encouraged factor, the court is authorized to depart if the applicable Guideline does not already take it into account. If the factor is a discouraged factor, or one already taken into account under the Guidelines, the court should depart only if the factor is present to an exceptional degree or in some other way makes the case different from the ordinary case where the factor is present. It is up to the district" }, { "docid": "12291281", "title": "", "text": "would justify disturbing the sentencing court’s conclusions. IV. The final issue Jacobs argues on appeal is that the District Court improperly departed five levels pursuant to U.S.S.G. § 5K2.3, based on a finding that Jacobs inflicted “extreme psychological injury” upon the victim. We review a District Court’s decision to depart from the guidelines for abuse of discretion. United States v. Baird, 109 F.3d 856, 862 (3d Cir.1997). We find that the sentencing judge did not make the specific factual findings required for an appropriate departure based on “extreme psychological injury” resulting to the victim from Jacobs’ assault. We also find Jacobs’ argument that the district judge should have specifically articulated the reasons for the degree of the departure convincing. Under this Circuit’s precedent of United States v. Kikumura, 918 F.2d 1084 (3d Cir.1990), we must conclude that the district judge did not engage in the analogic reasoning that is required in arriving at a five level departure, as opposed to some other numerical level of departure. We therefore vacate the sentence on these two separate but related grounds and remand for re-sentencing in accordance with the discussion of Third Circuit precedent below. As we stated in Baird, § 5K2.0, Grounds for Departure, provides a roadmap for a decision to depart from the applicable Guidelines range. Baird, 109 F.3d at 870-71. A court may depart from the range if it finds “that there exists an aggravating or mitigating circumstance of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission in formulating the guidelines.” 18 U.S.C. § 3553(b); 1997 U.S.S.G. § 5K2.0. “Sentencing courts are not left adrift, however.” Koon v. United States, 518 U.S. 81, 94, 116 S.Ct. 2035, 135 L.Ed.2d 392 (1996). Factors that are encouraged as bases for departures are found in §§ 5K2.1-5K2.18. One such encouraged factor is an upward departure based on a finding of “extreme psychological injury” to the victim. U.S.S.G. § 5K2.3. Section 5K2.3 is entitled “Extreme Psychological Injury.” It provides the following authority: If a victim or victims suffered psychological injury much more serious than that normally resulting" }, { "docid": "14713599", "title": "", "text": "at 426-27; United States v. Kenney, 283 F.3d 934, 936 (8th Cir.2002). We review the district court’s election to depart from the guidelines for abuse of discretion “because the decision to depart embodies the traditional exercise of discretion by the sentencing court.” Commentary to U.S.S.G. § 5K2.0 (citing Koon v. United States, 518 U.S. 81, 116 S.Ct. 2035, 135 L.Ed.2d 392 (1996)). The abuse of discretion standard extends to our review of the district court’s determination as to “whether a given factor is present to a degree not adequately considered by the Sentencing Commission.” United States v. Lewis, 235 F.3d 394, 396 (8th Cir.2000). 18 U.S.C. § 3553(b) permits a sentencing court to impose a sentence outside the applicable Guideline range if the court finds “that there exists an aggravating or mitigating circumstance of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission in formulating the guidelines that should result in a sentence different from that described.” Id. The Sentencing Commission enumerated some of the factors that it believed were not adequately accounted for in the formulation of the Guidelines and might merit consideration as aggravating or mitigating circumstances. U.S.S.G. § 5K2.0 (explaining the rationale behind the factors listed in U.S.S.G. § 5K2.1-21). Extreme psychological injury is one of these specifically enumerated factors. U.S.S.G. § 5K2.3. U.S.S.G. § 5K2.0 is a “Grounds for Departure” policy statement that introduces the specifically enumerated factors and explains their application. This general policy statement endorses the double counting of a factor for an upward departure where that factor is taken into account elsewhere in the Guidelines, “... e.g., as a specific offense characteristic or other adjustment!),]” but where, “in light of unusual circumstances, the weight attached to that factor under the guidelines is inadequate or excessive.” Id. This court has previously relied on the general policy statement of § 5K2.0 to find double counting permissible in the context of departures. United States v. Hipenbecker, 115 F.3d 581, 584 (8th Cir.1997) (“because § 5K2.0 contemplates the simultaneous consideration of factors that may be considered elsewhere in the computation of" }, { "docid": "6426461", "title": "", "text": "factors exist in a particular case “that have not been given adequate consideration by the Commission,” or when, “in light of unusual circumstances, the guideline level attached to that factor is inadequate.” U.S.S.G. § 5K2.0. “In the absence of a characteristic or circumstance that distinguishes a case as sufficiently atypical to warrant a sentence different from that called for under the guidelines, a sentence outside the guideline range is not authorized.” Id. at cmt; see also United States v. Wind, 128 F.3d 1276, 1277 (8th Cir.1997). In particular, “dissatisfaction with the available sentencing range or a preference for a different sentence than that authorized by the guidelines is not an appropriate basis for a sentence outside the applicable guideline range.” U.S.S.G. § 5K2.0 at cmt. The Sentencing Commission “forbids consideration of a few grounds for departure, discourages or encourages use of some specific grounds, and does not mention others.” United States v. Kapitzke, 130 F.3d 820, 822 (8th Cir.1997) (citing Koon v. United States, 518 U.S. 81, 92-94, 116 S.Ct. 2035, 2044, 135 L.Ed.2d 392 (1996)). If use of a certain factor is discouraged, or encouraged but already taken into account in the applicable guideline, departure is permissible only if the factor is present to an exceptional degree or distinguishes the case in some other manner from the typical ease in which the factor is present. See id. If a factor is unmentioned, departure on that basis is permissible only when the circumstances of the case are atypical in view of the structure and theory of the Guidelines. See id. “The court must bear in mind the Commission’s expectation that departures based on grounds not mentioned in the Guidelines will be ‘highly infrequent.’” Koon, at 96, 116 S.Ct. at 2045 (citing 1995 U.S.S.G. ch. 1, pt. A); see also United States v. Drew, 131 F.3d 1269 (8th Cir.1997). Sentencing departure decisions are to be reviewed under a “unitary abuse-of-discretion” standard. Koon, at 100,116 S.Ct. at 2048. Under such a standard, questions of law such as “whether a factor is a permissible basis for departure under any circumstances” are reviewed de" }, { "docid": "8050387", "title": "", "text": "an aggravating or mitigating circumstance of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission in formulating the guidelines that should result in a sentence different from that described.’ ” Koon v. United States, 518 U.S. 81, 92, 116 S.Ct. 2035, 135 L.Ed.2d 392 (1996) (quoting 18 U.S.C. § 3553(b)); see also USSG § 5K2.0 (reciting same standard). A combination of factors, none of which individually distinguish the case from a heartland situation, may occasionally justify a departure in an “extraordinary case,” but “such cases will be extremely rare.” USSG § 5K2.0, cmt. Except in extraordinary cases, “a sentence outside the guidelines range is not authorized. For example, dissatisfaction with the available sentencing range or a preference for a different sentence than that authorized by the guidelines is not an appropriate basis for a sentence outside the applicable guideline range.” Id. (citation omitted). Finally, the district court must state in open court the specific reasons for departure. See 18 U.S.C. § 3553(c)(2); United States v. Flinn, 987 F.2d 1497, 1501-02 (10th Cir.1993). We review departures from the Sentencing Guidelines for abuse of discretion. See United States v. Contreras, 180 F.3d 1204, 1208 (10th Cir.1999). Our review is guided by a four-part inquiry: (1) whether the factual circumstances supporting a departure are permissible departure factors; (2) whether the departure factors relied upon by the district court remove the defendant from the applicable Guideline heartland thus warranting a departure; (3) whether the record sufficiently supports the factual basis underlying the departure; and (4) whether the degree of departure is reasonable. In performing this review, Koon tells us that an appellate court need not defer to the district court’s resolution of the first question, whether a factor is a permissible departure factor under any circumstances, but must give substantial deference to the district court’s resolution of the second question, whether a particular defendant is within the heartland given all the facts of the case. United States v. Collins, 122 F.3d 1297, 1303 (10th Cir.1997) (quotation marks and alterations omitted). “Impermissible factors include forbidden factors, discouraged factors that" }, { "docid": "22993571", "title": "", "text": "on a combination of factors that took the case out of the “heartland” of the fraud guideline. A district court’s decision to depart from the applicable guideline range is subject to review for abuse of discretion. See Koon v. United States, 518 U.S. 81, 99-100, 116 S.Ct. 2035, 135 L.Ed.2d 392 (1996); United States v. Jacobs, 167 F.3d 792, 798 (3d Cir.1999). We find the district court did not abuse its discretion by departing from the Guidelines in this case. The Commission conceives of each offense guideline as “carving out a ‘heartland,’ a set of typical cases embodying the conduct that each guideline describes.” U.S.S.G., Ch.l, Pt. A, intro, p.s. 4(b) (Nov. 1997). In the unusual case in which a defendant’s conduct falls outside the typical “heartland,” the court may consider a departure from the Guidelines sentence. See id.; United States v. Baird, 109 F.3d 856, 870 (3d Cir.), cert. denied, — U.S. —, 118 S.Ct. 243, 139 L.Ed.2d 173 (1997) (citing Koon, 518 U.S. at 93-94, 116 S.Ct. 2035). Section 5K2.0 provides that a court may impose a sentence outside the applicable guideline range “if the court finds ‘that there exists an aggravating or mitigating circumstance of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission in formulating the guidelines that should result in a sentence different from that described.’ ” U.S.S.G. § 5K2.0, p.S; (Nov.1997) (quoting 18 U.S.C. § 3553(b)). The Commentary to § 5K2.0 adds that a court may also depart in the “extraordinary case that, because of a combination of such characteristics or circumstances, differs significantly from the ‘heartland’ cases covered by the guidelines in a way that is important to the statutory purposes of sentencing, even though none of the characteristics or circumstances individually distinguishes the ease,” but also notes that these departures “will be extremely rare.” Id., comment.;, see also Koon, 518 U.S. at 113-114, 116 S.Ct. 2035 (noting that departure is possible based on a combination of factors, even though none of the factors standing alone would justify a departure). Outside of a limited number of prohibited" }, { "docid": "14194130", "title": "", "text": "sentencing court “on a case-specific basis.” U.S.S.G. § 5K2.0. A circumstance that is “ ‘not ordinarily relevant’ in determining whether a sentence should be outside the applicable guideline range may be relevant ... if [it] is present to an unusual degree and distinguishes the ease from the ‘heartland’ cases covered by the guidelines.” Id. Where an unusual constellation of factors exists that removes any sentencing from the “heartland” cases, district courts are obligated to consider departures even though no one factor, standing alone, might justify an upward or downward departure. See U.S.S.G. § 5K2.0, cmt. (“The last paragraph of this policy statement sets forth the conditions under which an offender characteristic or other circumstance that is not ordinarily relevant to a departure from the applicable guideline range may be relevant .... The Commission does not foreclose the possibility of an extraordinary case that, because of a combination of such characteristics or circumstances, differs significantly from the ‘heartland’ cases covered by the guidelines in a way that is important to the statutory purposes of sentencing, even though none of the characteristics or circumstances individually distinguishes the case.”); United States v. Rioux, 97 F.3d 648, 663 (2d Cir.1996) (“In extraordinary eases, however, the district court may downwardly depart when a number of factors that, when considered individually, would not permit a downward departure, combine to create a situation that ‘differs significantly from the ‘heartland’ cases covered by the guidelines.’ ”) (quoting U.S.S.G. § 5K2.0, cmt.); United States v. Milikowsky, 65 F.3d 4, 7 (2d Cir.1995) (“This court has taken this guidance firmly to heart in recent years, making clear that a district court not only can, but must, consider the possibility of downward or upward departure ‘when there are compelling considerations that take the case out of the heartland factors upon which the Guidelines rest.’ ”) (quoting United States v. Monk, 15 F.3d 25, 29 (2d Cir.1994)). Leung claims that September 11th was only “tangentially involved” and thus cannot serve as a basis for departure, or else upward departures would be “warranted for all defendants who committed crimes after September 11th, and" }, { "docid": "394289", "title": "", "text": "there was “a real possibility” that the court misunderstood its power to depart downward). B. Authority, to Depart under U.S.S.G. § 5K2.0 on the basis of Defendant’s Consent to Deportation Under U.S.S.G. § 5K2.0, a sentencing court may depart from an applicable Guideline range if “the court finds 'that there exists an aggravating or mitigating circumstance of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission in formulating the guidelines that should result in a sentence different from that described.’ ” U.S.S.G. § 5K2.0 (quoting 18 U.S.C. § 3553(b)). “To determine whether a circumstance was adequately taken into consideration by the Commission, Congress instructed courts to ‘consider only the sentencing guidelines, policy statements, and official commentary of the Sentencing Commission.’ ” Koon v. United States, 518 U.S. 81, 92-93, 116 S.Ct. 2035, 135 L.Ed.2d 392 (1996) (quoting 18 U.S.C. § 3553(b)). The Commission has stated that, with the specific exceptions set forth in Guidelines §§ 5H1.10 (declaring irrelevancy of race, sex, national origin, creed, religion, and socio-economic status), 5H1.12 (lack of guidance as a youth), 5H1.4 (physical condition, including drug or alcohol dependence or abuse), and 5K2.12 (coercion and duress), it “does not intend to limit the kinds of factors, whether or not mentioned anywhere else in the guidelines, that could constitute grounds for departure in an unusual case.” See U.S.S.G. ch. 1, pt. A, intro, cmt. 4(b). That said, “[i]n the absence of a characteristic or circumstance that distinguishes a case as sufficiently atypical to warrant a sentence different from that called for under the guidelines, a sentence outside the guideline range is not authorized.” U.S.S.G. § 5K2.0, Commentary; see also Koon, 518 U.S. at 98, 116 S.Ct. 2035 (“Before a departure is permitted, certain aspects of the case must be found unusual enough for it to fall outside the heartland of cases in the Guideline.”). Unlike Guideline § 5K1.1, which provides, “[u]pon motion of the government,” for the possibility of a downward departure where a defendant “has provided substantial assistance in the investigation or prosecution of another person who has committed an" }, { "docid": "22993572", "title": "", "text": "court may impose a sentence outside the applicable guideline range “if the court finds ‘that there exists an aggravating or mitigating circumstance of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission in formulating the guidelines that should result in a sentence different from that described.’ ” U.S.S.G. § 5K2.0, p.S; (Nov.1997) (quoting 18 U.S.C. § 3553(b)). The Commentary to § 5K2.0 adds that a court may also depart in the “extraordinary case that, because of a combination of such characteristics or circumstances, differs significantly from the ‘heartland’ cases covered by the guidelines in a way that is important to the statutory purposes of sentencing, even though none of the characteristics or circumstances individually distinguishes the ease,” but also notes that these departures “will be extremely rare.” Id., comment.;, see also Koon, 518 U.S. at 113-114, 116 S.Ct. 2035 (noting that departure is possible based on a combination of factors, even though none of the factors standing alone would justify a departure). Outside of a limited number of prohibited factors that a court may never consider as grounds for departure, the Guidelines do not “limit the kinds of factors ... that could constitute grounds for departure in an unusual case.” U.S.S.G., Ch.l, Pt. A, intro, p.s. 4(b) (Nov.1997); see also Koon, 518 U.S. at 106, 116 S.Ct. 2035; Baird, 109 F.3d at 870. The Supreme Court provided additional guidance on departures in Koon,' instructing courts to apply the following analysis when considering a § 5K2.0 departure. First, identify the factor or factors that potentially take the case outside the Guidelines’ “heartland” and make it special or unusual. Koon, 518 U.S. at 95, 116 S.Ct. 2035. Second, determine whether the Guidelines forbid departures based on the factor, encourage departures based on the factor, or do not mention the factor at all. Id. at 94-95, 116 S.Ct. 2035. Third, apply the appropriate rule: (1) if the factor is forbidden, the court cannot use it as a basis for departure; (2) if the factor is encouraged, the court is authorized to depart if the applicable guideline does" }, { "docid": "7854306", "title": "", "text": "States Sentencing Guidelines § 2A1.4(a)(2). A two-level downward adjustment was made for acceptance of responsibility under U.S.S.G. § 3El.l(a), to arrive at a total offense level of 12. With a Criminal History Category of I, Ms. Whiteskunk’s Guideline range for imprisonment was calculated at 10-16 months. At the sentencing hearing, the district court decided to depart upward three levels from the base offense level, finding certain aggravating factors in the presentence report indicated “the defendant’s conduct ... exceeded reckless behavior, and therefore, exceeded the guidelines.” The district court rested its decision on a number of factors including: (1) Ms. Whiteskunk’s blood alcohol content, which was more than twice the legal limit; (2) a prior conviction for drank driving, which put her on notice of the “illegality and the dangerousness of drinking and driving”; and (3) multiple opportunities for Ms. Whiteskunk to correct her behavior before the accident. Ms. Whiteskunk asserts the district court erred because it: (1) abused its discretion in departing upward on the bases that death resulted and that her conduct exceeded the standard of recklessness, (2) failed to explain the upward departure, and (3) failed to provide adequate notice of intent to depart upward and the basis for the departure. DISCUSSION I. Upward Departure Analysis — An Overview United States v. Collins, 122 F.3d 1297 (10th Cir.1997), sets forth our general framework for reviewing Sentencing Guideline departures following the Supreme Court’s landmark decision in Koon v. United States, 518 U.S. 81, 116 S.Ct. 2035, 135 L.Ed.2d 392 (1996). A sentencing court is permitted to depart from the Guidelines after determining a defendant’s offense level, criminal history category, and the applicable Guideline range “if the court finds ‘that there exists an aggravating or mitigating circumstance of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission in formulating the guidelines.’ ” U.S.S.G. § 5K2.0 (quoting 18 U.S.C. § 3553(b)). The district court must distinguish whether the ease falls under the category of a “heartland ease” or an “unusual case.” See Koon, 518 U.S. at 93, 116 S.Ct. 2035. In Koon, the Court explained" }, { "docid": "15933163", "title": "", "text": "plea agreement did not provide that Queensborough was free to withdraw his plea if the court sentenced him to a longer prison term. Cf. United States v. Grant, 117 F.3d 788, 792 n. 5 (5th Cir.1997) (agreement provided that defendant could withdraw guilty plea if court set an offense level higher than that in the plea agreement). The prosecutor adhered to the terms of the agreement, and we see no basis to vacate the sentence on the ground of a breach of the plea agreement. C. Excessive Departure In addition to his challenge to the process leading to the departure, Queensborough asserts two separate but related challenges to the fact of departure. First, he contends that the District Court’s decision to upwardly depart from the guidelines based on extreme conduct is not supported by the record and that such a departure was not permissible under the guidelines. Second, he contends that the District Court abused its discretion by imposing an excessive upward departure. We review a district court’s decision to depart from the applicable guideline range for abuse of discretion. See Koon v. United States, 518 U.S. 81, 99-100, 116 S.Ct. 2035, 135 L.Ed.2d 392 (1996). “A district court by definition abuses its discretion when it makes an error of law.” Id. at 100, 116 S.Ct. 2035. A district court must order a sentence within the relevant guideline range “ ‘unless the court finds that there exists an aggravating or mitigating circumstance of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission in formulating the guidelines that should result in a sentence different from that described.’ ” United States v. Kikumura, 918 F.2d 1084, 1098 (3d Cir.1990) (citing 18 U.S.C. § 3553(b)). In Koon, the Supreme Court noted that the sentencing guidelines provide “considerable guidance ... by listing certain factors as either encouraged or discouraged bases for departure.” 518 U.S. at 94, 116 S.Ct. 2035. Encouraged factors are those “the Commission has not been able to take into account fully in formulating the guidelines.” U.S.S.G. § 5K2.0. Because extreme conduct under U.S.S.G. § 5K2.8" }, { "docid": "14194129", "title": "", "text": "445; Simmons, 343 F.3d at 78. We have not yet resolved whether this new standard of review applies to appeals pending before April 30, 2003 and in this case we are not called on to do so because we would affirm under either standard. See Simmons, 343 F.3d at 78. We find no fault with the District Court’s decision to depart. Section 5K2.0 permits departures if “ ‘there exists an aggravating or mitigating circumstance of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission in formulating the guidelines that should result in a sentence different from that described.’ ” U.S.S.G. § 5K2.0 (quoting 18 U.S.C. § 3553(b)(1)). Such circumstances will, of course, be rare. See Koon v. United States, 518 U.S. 81, 96, 116 S.Ct. 2035, 135 L.Ed.2d 392 (1996); United States v. Tappin, 205 F.3d 536, 540 (2d Cir.2000); United States v. Merritt, 988 F.2d 1298, 1309 (2d Cir.1993). They “cannot, by their very nature, be comprehensively listed and analyzed in advance” and must be determined by the sentencing court “on a case-specific basis.” U.S.S.G. § 5K2.0. A circumstance that is “ ‘not ordinarily relevant’ in determining whether a sentence should be outside the applicable guideline range may be relevant ... if [it] is present to an unusual degree and distinguishes the ease from the ‘heartland’ cases covered by the guidelines.” Id. Where an unusual constellation of factors exists that removes any sentencing from the “heartland” cases, district courts are obligated to consider departures even though no one factor, standing alone, might justify an upward or downward departure. See U.S.S.G. § 5K2.0, cmt. (“The last paragraph of this policy statement sets forth the conditions under which an offender characteristic or other circumstance that is not ordinarily relevant to a departure from the applicable guideline range may be relevant .... The Commission does not foreclose the possibility of an extraordinary case that, because of a combination of such characteristics or circumstances, differs significantly from the ‘heartland’ cases covered by the guidelines in a way that is important to the statutory purposes of sentencing, even" } ]

[ { "docid": "22720130", "title": "", "text": "Justice Brennan delivered the opinion of the Court. The question presented is whether a person who has not submitted a claim against a bankruptcy estate has a right to a jury trial when sued by the trustee in bankruptcy to recover an allegedly fraudulent monetary transfer. We hold that the Seventh Amendment entitles such a person to a trial by jury, notwithstanding Congress’ designation of fraudulent conveyance actions as “core proceedings” in 28 U. S. C. § 157(b)(2)(H) (1982 ed., Supp. V). I The Chase & Sanborn Corporation filed a petition for reorganization under Chapter 11 of the Bankruptcy Code in 1983. A plan of reorganization approved by the United States Bankruptcy Court for the Southern District of Florida vested in respondent Nordberg, the trustee in bankruptcy, causes of action for fraudulent conveyances. App. to Pet. for Cert. 37. In 1985, respondent filed suit against petitioners Granfinanciera, S. A., and Medex, Ltda., in the United States District Court for the Southern District of Florida. The complaint alleged that petitioners had received $1.7 million from Chase & Sanborn’s corporate predecessor within one year of the date its bankruptcy petition was filed, without receiving consideration or reasonably equivalent value in return. Id., at 39-40. Respondent sought to avoid what he alleged were constructively and actually fraudulent transfers and to recover damages, costs, expenses, and interest under 11 U. S. C. §§ 548(a)(1) and (a)(2), 550(a)(1) (1982 ed. and Supp. V). App. to Pet. for Cert. 41. The District Court referred the proceedings to the Bankruptcy Court. Over five months later, and shortly before the Colombian Government nationalized Granfinanciera, respond ent served a summons on petitioners in Bogota, Colombia. In their answer to the complaint following Granfinanciera’s nationalization, both petitioners requested a “trial by jury on all issues so triable. ” App. 7. The Bankruptcy Judge denied petitioners’ request for a jury trial, deeming a suit to recover a fraudulent transfer “a core action that originally, under the English common law, as I understand it, was a non-jury issue.” App. to Pet. for Cert. 34. Following a bench trial, the court dismissed with" } ]

[ { "docid": "12599345", "title": "", "text": "bankruptcy court might assume that it has plenary authority to decide fraudulent conveyance actions. As it turns out, that court would be mistaken.”); Stettin v. Regent Capital Partners, LLC. (In re Rothstein, Rosenfeldt, Adler, P.A.), No. 11-62612-CIV-MARRA, slip op. at *3 (S.D.Fla. Mar. 7, 2012) (bankruptcy court has no authority to enter final order in fraudulent conveyance action); Blixseth v. Brown, — F.Supp.2d - (D.Mont.2012) (“The Bankruptcy Court ... reasoned that, under Stem, it could not issue a final judgment on the fraudulent conveyance claim.... To that extent, in my view, the Bankruptcy Court’s reading of Stem is correct.”); In re Heller Ehrman LLP, 464 B.R. at 352-54 (“By likening the claim in question explicitly to the fraudulent conveyance claims in Granfinanciera, this Court believes that Stem clearly implied that the bankruptcy court lacks constitutional authority to enter final judgment on the fraudulent conveyance claims presented here.”); In re El-Atari, 2011 WL 5828013, at *2 (“Stern, together with Granfinanciera, clearly supports the conclusion that the authority to issue a final decision in a fraudulent conveyance action is reserved for Article III courts.”); Dev. Specialists, Inc. v. Akin Gump Strauss Hauer & Feld LLP, 462 B.R. 457, 469 (S.D.N.Y.2011) (“Only in Stem did the Court actually hold that a fraudulent conveyance action implicating private rights must be finally determined in an Article III forum.”); In re Canopy Fin., Inc., 464 B.R. 770, 773 (N.D.Ill.2011) (“Thus, by likening the claim in question to the fraudulent conveyance claims in Granfinanciera, the Stem Court made clear that the Bankruptcy Court lacks constitutional authority to enter final judgment on the [fraudulent conveyance] claims presented here.”); Sitka Enters., Inc. v. Segarra-Miranda, No. 10-1847CCC, 2011 WL 7168645, *3, 2011 U.S. Dist. LEXIS 90243, *8 (D.P.R.Aug. 12, 2011) (“[T]he fraudulent conveyance action brought by the trustee cannot be adjudicated by the Bankruptcy Court, a non-Article III court, for lack of constitutional authority to do so. Such action, in compliance with Article III, must be adjudicated by the U.S. District Court.”); Zahn, 202 B.R. at 658-59 (“Therefore, this Court concludes that the power to enter a final decision over" }, { "docid": "17536759", "title": "", "text": "counterclaim before it “ — like the fraudu lent conveyance claim at issue in Granfinanciera-does not fall within any of the varied formulations of the public rights exception in this Court’s cases.” Stern, 131 S.Ct. at 2614. See Weisfelner v. Blavatnik (In re Lyondell Chemical Co.), 467 B.R. 712, 720 (S.D.N.Y.2012) (“Under both Stem and Granfinanciera, then, it is axiomatic that a fraudulent conveyance claim against a person who has not submitted a claim against a bankruptcy estate, brought solely to augment the bankruptcy estate, is a mater of private right.”) Several bankruptcy courts in the Third Circuit have addressed the issue of whether a bankruptcy court has the constitutional authority to issue a final order in fraudulent transfer action. Bankruptcy courts in Delaware and the Western District of Pennsylvania have concluded that because Stem did not address the ability of an Article I court to finally decide fraudulent transfer actions, bankruptcy courts continue to possess the constitutional authority to enter final orders in these core matters. See Zazzali v. 1031 Exchange Group (In re DBSI, Inc.) 467 B.R. 767, 772 (Bankr.D.Del.2012); Bohm v. Titus (In re Titus), 467 B.R. 592, 633 (Bankr.W.D.Pa.2012); Burtch v. Seaport Capital, LLC (In re Direct Response Media, Inc.), 466 B.R. 626, 644 (Bankr.D.Del.2012); Cardiello v. Arbogast (In re Arbogast), 466 B.R. 287, 326 (Bankr.W.D.Pa.2012). In a case I decided last year, I agreed with courts adopting a narrow interpretation of Stern. Upon further consideration, while a narrow construction may be appropriate in some circumstances, I find persuasive the Ninth Circuit’s conclusion that together Stern and Granfinanciera hold that a bankruptcy court may not decide a fraudulent transfer action. Accordingly, this Court may not enter a final order in this matter. B. Authority to issue proposed findings of fact and conclusions of law Having determined that I do not possess the constitutional authority to enter final judgment in this proceeding, I must consider whether I am authorized to issue proposed findings of fact and conclusions of law for consideration by the District Court. Under 28 U.S.C. § 157(c)(1) and Fed. R. Bankr.P. 9033, a bankruptcy" }, { "docid": "15276504", "title": "", "text": "exception to Article III. Stern, 131 S.Ct. at 2614. In a footnote, the Stem Opinion discussed the Supreme Court’s conclusion in Granfinanciera “that fraudulent conveyance actions were ‘more accurately characterized as a private than public right’ as we have used those terms in our Article III decisions.” That footnote read in full: We noted that we did not mean to “suggest that the restructuring of debtor-creditor relations is in fact a public right.” Our conclusion was that, “even if one accepts this thesis,” Congress could not constitutionally assign resolution of the fraudulent conveyance action to a non-Article III court. Because neither party asks us to reconsider the public rights framework for bankruptcy, we follow the same approach here. Stern, 131 S.Ct. 2594, 2614 n. 7 (2011). That footnote and other language in Stem analogizing the claim at issue in Granfinanciera to the claim at issue in a fraudulent conveyance action has been cited in support of the conclusion that bankruptcy judges do not have constitutional authority to enter final judgment on fraudulent transfer claims, at least when the creditor has not filed a proof of claim against the estate. Those opinions holding that fraudulent conveyance claims are beyond the adjudicatory powers of a bankruptcy judge reason that “[t]o now conclude that the very claim presented in Granfmanciera — a fraudulent conveyance claim — is a ‘public rights’ claim would be totally at odds with the Stern Court’s analogy to Granfinanciera.” Kirschner v. Agoglia, 476 B.R. 75, 80 n. 3 (S.D.N.Y.2012). The distinction between public rights and private rights originates in another Supreme Court opinion, Northern Pipeline Construction Co. v. Marathon Pipe Line Co., 458 U.S. 50, 102 S.Ct. 2858, 73 L.Ed.2d 598 (1982). In Marathon, a plurality of the Court agreed that assignment of the debtor’s pre-petition breach of contract and warranty claims for resolution by a bankruptcy judge violated Art. Ill of the Constitution. Marathon, 458 U.S. at 87, 102 S.Ct. 2858. The Marathon plurality Opinion recognized three limited exceptions the Art. Ill requirement: territorial courts, military tribunals, and cases involving “public” as opposed to “private” rights. Id. at" }, { "docid": "10714762", "title": "", "text": "2782. As a consequence, we concluded that fraudulent conveyance actions were “more accurately characterized as a private rather than a public right as we have used those terms in our Article III decisions.” Id. at 55, 109 S.Ct. 2781 [2782]. Stern, 131 S.Ct. at 2614. Analogizing to Granfinanciera, Stem found that a debtor’s counterclaim, like a fraudulent transfer claim, is ‘one under state common law between two private parties’ such that the bankruptcy court could not enter final judgment. Id. Given Stem’s reliance on Granfinanciera, some courts have reasoned that Stem “made clear that the Bankruptcy Court lacks constitutional authority to enter final judgment on [fraudulent transfer claims,”] and must instead enter findings and recommendations. In re Canopy, 464 B.R. 770, 2011 WL 3911082, at *4; see also In re Teleservices, 456 B.R. 318, 2011 WL 3610050, at *5 (“But Stern, when combined with Granfinanciera, at the very least suggests that a bankruptcy court’s entry of a money judgment in connection with an avoided fraudulent transfer is constitutionally suspect.”). In re The Mortgage Store, Inc., 464 B.R. at 425-26. The United States District Court for the Southern District of New York also adopted a broad reading of Stem in holding: In further tracing the Supreme Court’s development of the “public rights” exception, the Stem Court relied heavily on Granfinanciera, S.A. v. Nordberg, 492 U.S. 33 [109 S.Ct. 2782, 106 L.Ed.2d 26] (1989), which held that the Seventh Amendment right to a jury trial applied to fraudulent conveyance actions. Id. at 36 [109 S.Ct. 2782], Granfinanciera, as the Stern Court explained, rejected the notion that fraudulent conveyance actions were cases involving “public rights.” See Stern, 131 S.Ct. at 2614 (citing Granfinanciera, 492 U.S. at 54-55 [109 S.Ct. 2782]). According to the Stem Court, Granfinanciera “reasoned that fraudulent conveyance suits were ‘quintessentially suits at common law that more nearly resemble state law contract claims brought by a bankrupt corporation to augment the bankruptcy estate than they do creditors’ hierarchically ordered claims to a pro rata share of the bankruptcy res.’ ” Id. (quoting Granfinanciera, 492 U.S. at 56 [109 S.Ct. 2782]). Indeed," }, { "docid": "15276502", "title": "", "text": "on whether bankruptcy judges still have constitutional authority to enter final judgment on fraudulent transfer actions; there are opinions going both ways on the issue. See, e.g., Kelley v. JPMorgan Chase & Co., 464 B.R. 854, 863 (D.Minn.2011) (holding that Stem did not warrant withdrawal of reference in adversary proceeding in which trustee asserted fraudulent transfer claims); Official Comm. Of Unsecured Creditors of Appalachian Fuels, LLC v. Energy Coal Res., Inc. (In re Appalachian Fuels, LLC), 472 B.R. 731, 741 (E.D.Ky.2012) (“Plaintiffs fraudulent transfer and preference claims are statutorily defined core claims to which the holding of Stem does not apply, and therefore the Bankruptcy Court has authority to enter final orders and judgments on such claims pursuant to 28 U.S.C. § 157(b)(1)”); Fox v. Picard (In re Madoff), 848 F.Supp.2d 469 (S.D.N.Y.2012) (in dicta); Walker, Truesdell, Roth & Assoc. v. Blackstone Grp., L.P. (In re Extended Stay, Inc.), 466 B.R. 188 (S.D.N.Y.2011) (‘Stem does not affect the ability of the bankruptcy court to rule on state law fraudulent conveyance claims.... ”); Burtch v. Seaport Capital, LLC (In re Direct Response Media, Inc.), 466 B.R. 626 (Bankr.D.Del.2012); but see Heller Ehrman, LLP v. Arnold & Porter, LLP, et al. (In re Heller Ehrman), 464 B.R. 348 (N.D.Cal.2011) (holding that withdrawal of reference was unwarranted despite finding that bankruptcy court lacked constitutional authority to enter final judgment on a debtor’s fraudulent transfer claims). Opinions ruling under Stem that bankruptcy judges cannot enter final judgments in proceedings to recover fraudulent transfers under 11 U.S.C. §§ 544 and 548 have reached that conclusion because Stem noted that its holding was consistent with Granfinanciera, S.A. v. Nordberg, 492 U.S. 33, 109 S.Ct. 2782, 106 L.Ed.2d 26 (1989). In Granfinanciera the Supreme Court held that a non-claimant defendant to a fraudulent conveyance action under the Bankruptcy Code has a right to a jury trial. Id. at 36, 109 S.Ct. 2782. Stem equated the state law counterclaim at issue in Stem to the fraudulent transfer claim at issue in Granfinanciera, stating that both claims involved “private rights” and therefore do not fall within the “public rights”" }, { "docid": "7476627", "title": "", "text": "The statutory authority to hear a case, however, is a separate issue from the bankruptcy court’s constitutional power. Stem, 131 S.Ct. at 2607. The proceeding at issue in Stern was a core proceeding under 28 U.S.C. § 157(b)(2)(C), but the bankruptcy court remained without constitutional power to decide the case. Id.; see also Customized Distribution, LLC v. Coastal Bank and Trust (In Re Lee’s Famous Recipes, Inc.), No. 11-5482, 2011 WL 7068916, at *2 (Bankr.N.D.Ga. Dec. 12, 2011) (J. Brizendine). A person who has not filed a claim in a bankruptcy proceeding has the right to a jury trial under the Seventh Amendment when sued by the trustee to recover an allegedly fraudulent transfer. Granfinanciera, S.A. v. Nordberg, 492 U.S. 33, 36, 109 S.Ct. 2782, 106 L.Ed.2d 26 (1989). A bankruptcy judge may conduct a jury trial (where the district court rules permit) with the express consent of all parties. 28 U.S.C. § 157(e). In the Northern District of Georgia, where a timely jury demand is filed and the parties do not consent to jury trial before a bankruptcy judge, an adversary proceeding will be transferred to the District Court when the case is ready for trial. Bankr.Local Rule 9015-3(a) (N.D.Ga.). The Bankruptcy court rules on all pre-trial motions. Id. III. DISCUSSION Defendant contends the bankruptcy court is without constitutional power to finally determine if the 2009 investments of Debtor in Defendant were fraudulent, and if so, if the underlying transfers are avoidable and recoverable. Defendant argues that pursuant to the decision in Granfinanciera, 492 U.S. at 35, 109 S.Ct. 2782 a fraudulent conveyance action is “quintessentially” the kind of claim that requires determination by an Article III court and cannot be constitutionally decided in the bankruptcy court. Defendant cites the decisions of various courts that have reached this conclusion. See e.g. Meoli v. The Huntington National Bank (In re Teleservices Group, Inc.), 456 B.R. 318 (Bankr.W.D.Mich.2011); Paloian v. Amer. Express Co. (In re Canopy Financial, Inc.), 464 B.R. 770 (N.D.Ill.2011); Heller Ehrman LLP v. Arnold Porter LLP, 464 B.R. 348 (N.D.Cal.2011). Defendant’s argument, and the argument of much of" }, { "docid": "17619264", "title": "", "text": "S.A. v. Nordberg, 492 U.S. 33, 109 S.Ct. 2782, 106 L.Ed.2d 26 (1989), in concluding that a debtor’s counterclaim is not a matter of “public right” that can be determined outside the judicial branch. Granfinanciera held that a fraudulent transfer claim, although technically a “core proceeding,” did not assert a public right such that a defendant has a right to a jury trial. Stem found particularly relevant that in Granfi-nanciera, [w]e reasoned that fraudulent conveyance suits were “quintessentially suits at common law that more nearly resemble state law contract claims brought by a bankrupt corporation to augment the bankruptcy estate than they do creditors’ hierarchically ordered claims to a pro rata share of the bankruptcy res.” Id. at 56, 109 S.Ct. 2782. As a consequence, we concluded that fraudulent conveyance actions were “more accurately characterized as a private rather than a public right as we have used those terms in our Article III decisions.” Id. at 55,109 S.Ct. 2782. Stem, 131 S.Ct. at 2614. Analogizing to Granfinanciera, Stem found that a debt- or’s counterclaim, like a fraudulent transfer claim, is “one under state common law between two private parties” such that the bankruptcy court could not enter final judgment. Id. Given Stem’s reliance on Granfinanciera, some courts have reasoned that Stem “made clear that the Bankruptcy Court lacks constitutional authority to enter final judgment on [fraudulent transfer claims],” and must instead enter findings and recommendations. In re Canopy, 2011 WL 3911082, at *4; see also In re Teleservices, 2011 WL 3610050, at *5 (“But Stern, when combined with Granfinanciera, at the very least suggests that a bankruptcy court’s entry of a money judgment in connection with an avoided fraudulent transfer is constitutionally suspect.”). Under either line of cases, Stem only addresses a bankruptcy court’s jurisdiction to enter a judgment, as opposed to findings and recommendations, on a core proceeding over which it has no constitutional authority to enter a final judgment. Indeed, Stem discussed only whether the bankruptcy court could enter a final judgment; it did not express any opinion regarding whether the bankruptcy court has authority to conduct pretrial" }, { "docid": "12599384", "title": "", "text": "all counterclaims against a creditor, nor from entering proposed findings and conclusions on such matters, which could then be submitted to a district court to ‘finally decide’ the issues.”) (citing Stern, 131 S.Ct. at 2620); In re Heller Ehrman LLP, 2011 WL 4542512, at *6 (Bankr.N.D.Cal. Sept. 28, 2011) (\"[T]he fact that Bankruptcy Rule 9033 only mentions non-core proceedings in no way prohibits following the same procedure in core matters.”). Recently the Blixseth court amended its earlier ruling. In re Blixseth, 463 B.R. 896, 905-07 (Bankr.D.Mont.2012) (\"The Court sua sponte amends its August 1, 2011, Memorandum of Decision and Order.... [Sjeveral courts have recently concluded that Stem v. Marshall does not deprive bankruptcy courts of subject matter jurisdiction.... [Bjecause the United States District Court for the District of Montana would have the requisite subject-matter jurisdiction to adjudicate the claims in this Adversary Proceeding, so too does this Court.”). . The allegations are contained in count 16 against Tony and count 11 against Betty. . The allegations are contained in count 18 against Tony and count 12 against Betty. . These include counts 1 and 2 against DLI and counts 1 and 2 against Maria Dennis. . \"Although § 1334(b) defines bankruptcy jurisdiction broadly, history demonstrates the Supreme Court’s concern with containing the power of a bankruptcy court — a non-Article III tribunal.” Zahn v. Yucaipa Capital Fund (In re Almac's), 202 B.R. 648, 659 (D.R.I. 1996). . Stern, 131 S.Ct. at 2614 (the Granfinanciera court “rejected a bankruptcy trustee’s argument that a fraudulent conveyance action filed on behalf of a bankruptcy estate against a non-creditor in a bankruptcy proceeding fell within the 'public rights' exception.\"); Adelphia Recovery Trust v. FLP Grp., Inc., 2012 WL 264180 (S.D.N.Y.Jan. 30, 2012) (\"These Supreme Court precedents demonstrate that a fraudulent transfer claim involves a private right.”); Dev. Specialists, Inc. v. Orrick, Herrington & Sutcliffe, LLP, 2011 WL 6780600, at *2 (S.D.N.Y. Dec. 23, 2011) (Granfinanciera eliminated any \"debate” about whether fraudulent conveyance claims involve a private or a public right; it is the former); In re Quality Props., LLC, 2011 WL 6161010 at *5" }, { "docid": "20241563", "title": "", "text": "rare procedural posture of this case or under the current statutory scheme. Nor need we decide whether, if Congress has authorized bankruptcy courts to hold jury trials in such actions, that authorization comports with Article III when non-Article III judges preside over the actions subject to review in, or withdrawal by, the district courts.... The sole issue before us is whether the Seventh Amendment confers on petitioners a right to a jury trial in the face of Congress’ decision to allow a non-Article III tribunal to adjudicate the claims against them.” (internal citations omitted)). Furthermore, Granfinanciera has been the law for over twenty years, and it was not until after the Court’s decision in Stem that the bankruptcy court’s authority to enter final orders and judgments in fraudulent conveyance or preference actions has been challenged. In re Safety Harbor Resort & Spa, 456 B.R. at 717. Taking the specific facts and issues in Stem and Granfinanciera into consideration, in addition to the Supreme Court’s deliberate attempt to limit the scope of its holdings in both cases, this Court cannot extend the holding of Stem to fraudulent conveyance and preference actions. The statutorily core claim examined in Stem was a counterclaim based on state tort law and was “in no way derived from or dependent upon bankruptcy law.” See Stern, 131 S.Ct. at 2618. In the present proceeding, Plaintiffs fraudulent conveyance and preference claims “arise under” the Bankruptcy Code, or at least, “arise in” a bankruptcy case. See 11 U.S.C. §§ 544, 547, 548, 550. The Stem decision itself acknowledged that whether a matter is core requires a consideration of “whether the action at issue stems from the bankruptcy itself’ or is “derived from or dependent upon bankruptcy law....” Stern, 131 S.Ct. at 2618. Moreover, but for the bankruptcy, Plaintiff could not assert the fraudulent conveyance and preference claims against Defendants. See In re Heller Ehrman LLP, No. 08-32514, 2011 WL 4542512, at *5 (Bankr.N.D.Cal. Sept. 28, 2011) (citing In re Mankin, 823 F.2d at 1307 n. 4) (Fraudulent transfer claims “cannot exist but for the debtor’s insolvency, its inability to" }, { "docid": "15276503", "title": "", "text": "Capital, LLC (In re Direct Response Media, Inc.), 466 B.R. 626 (Bankr.D.Del.2012); but see Heller Ehrman, LLP v. Arnold & Porter, LLP, et al. (In re Heller Ehrman), 464 B.R. 348 (N.D.Cal.2011) (holding that withdrawal of reference was unwarranted despite finding that bankruptcy court lacked constitutional authority to enter final judgment on a debtor’s fraudulent transfer claims). Opinions ruling under Stem that bankruptcy judges cannot enter final judgments in proceedings to recover fraudulent transfers under 11 U.S.C. §§ 544 and 548 have reached that conclusion because Stem noted that its holding was consistent with Granfinanciera, S.A. v. Nordberg, 492 U.S. 33, 109 S.Ct. 2782, 106 L.Ed.2d 26 (1989). In Granfinanciera the Supreme Court held that a non-claimant defendant to a fraudulent conveyance action under the Bankruptcy Code has a right to a jury trial. Id. at 36, 109 S.Ct. 2782. Stem equated the state law counterclaim at issue in Stem to the fraudulent transfer claim at issue in Granfinanciera, stating that both claims involved “private rights” and therefore do not fall within the “public rights” exception to Article III. Stern, 131 S.Ct. at 2614. In a footnote, the Stem Opinion discussed the Supreme Court’s conclusion in Granfinanciera “that fraudulent conveyance actions were ‘more accurately characterized as a private than public right’ as we have used those terms in our Article III decisions.” That footnote read in full: We noted that we did not mean to “suggest that the restructuring of debtor-creditor relations is in fact a public right.” Our conclusion was that, “even if one accepts this thesis,” Congress could not constitutionally assign resolution of the fraudulent conveyance action to a non-Article III court. Because neither party asks us to reconsider the public rights framework for bankruptcy, we follow the same approach here. Stern, 131 S.Ct. 2594, 2614 n. 7 (2011). That footnote and other language in Stem analogizing the claim at issue in Granfinanciera to the claim at issue in a fraudulent conveyance action has been cited in support of the conclusion that bankruptcy judges do not have constitutional authority to enter final judgment on fraudulent transfer claims, at" }, { "docid": "10714761", "title": "", "text": "cannot enter judgment and instead must enter findings and recommendations. See, e.g., In re Canopy Fin., Inc. [464 B.R. 770], 2011 WL 3911082 (N.D.Ill. Sept. 1, 2011); see also In re Teleservices Group, Inc., 456 B.R. 318 (Bankr.W.D.Mich.2011). Courts have come to this conclusion in light of the fact that Stem relied on Granfinanciera, S.A. v. Nordberg, 492 U.S. 33, 109 S.Ct. 2782, 106 L.Ed.2d 26 (1989), in concluding that a debtor’s counterclaim is not a matter of “public right” that can be determined outside the judicial branch. Granfinan-ciera held that a fraudulent transfer claim, although technically a “core proceeding,” did not assert a public right such that a defendant has a right to a jury trial. Stem found particularly relevant that in Granfinanciera, “[w]e reasoned that fraudulent conveyance suits were ‘quintessentially suits at common law that more nearly resemble state law contract claims brought by a bankrupt corporation to augment the bankruptcy estate than they do creditors’ hierarchically ordered claims to a pro rata share of the bankruptcy res.” Id. at 56, 109 S.Ct. 2782. As a consequence, we concluded that fraudulent conveyance actions were “more accurately characterized as a private rather than a public right as we have used those terms in our Article III decisions.” Id. at 55, 109 S.Ct. 2781 [2782]. Stern, 131 S.Ct. at 2614. Analogizing to Granfinanciera, Stem found that a debtor’s counterclaim, like a fraudulent transfer claim, is ‘one under state common law between two private parties’ such that the bankruptcy court could not enter final judgment. Id. Given Stem’s reliance on Granfinanciera, some courts have reasoned that Stem “made clear that the Bankruptcy Court lacks constitutional authority to enter final judgment on [fraudulent transfer claims,”] and must instead enter findings and recommendations. In re Canopy, 464 B.R. 770, 2011 WL 3911082, at *4; see also In re Teleservices, 456 B.R. 318, 2011 WL 3610050, at *5 (“But Stern, when combined with Granfinanciera, at the very least suggests that a bankruptcy court’s entry of a money judgment in connection with an avoided fraudulent transfer is constitutionally suspect.”). In re The Mortgage Store, Inc.," }, { "docid": "12599348", "title": "", "text": "5, 2011) (in spite of 28 U.S.C. § 157(b)(2)(H), court may not enter final order in fraudulent conveyance cause of action based on § 544(b) and state law); Samson v. Blixseth, 2011 WL 3274042, at *4, *11 (although fraudulent transfer claim “involves substantive rights created under bankruptcy law,” because it “is essentially a common law claim attempting to augment the estate, does not stem from the bankruptcy itself and would not be resolved in the claims allowance process, it is a private right that must be adjudicated by an Article III court.”); BaxteR et al., supra, at 9 (“Thus, similar to the holding in Stem that the authority conferred by § 157(b)(2)(C) is unconstitutional, the argument can be made that the classification of all fraudulent conveyance actions as core proceedings under § 157(b)(2)(H) violates Article III of the Constitution. Indeed, the Court in Stem stated that it saw ‘no reason to treat Vickie’s counterclaim any differently from the fraudulent conveyance action in Granfinanciera.’”); Brubaker, Part II, at *37 (“After Stern v. Marshall, the conclusion seems inescapable that such core jurisdiction to enter final judgment-expressly conferred by § 157(b)(2)(F) & (H) of the Judicial Code-is unconstitutional. Without consent of the litigants, a bankruptcy judge can do no more than hear the action and submit proposed findings and conclusions to the district court.”); Gibson, supra note 28, at 168 (“Congress may not assign [the] adjudication [of a fraudulent conveyance action] to the non-article III bankruptcy court. Such assignment would be prohibited whether or not the parties demanded a jury trial, because in either event the action would involve private rights, thus necessitating adjudication by an article III court.”) (footnotes omitted). The Court realizes that there are well-reasoned opinions that have reached the opposite conclusion, adopting what has been called the “narrow view.” See, e.g., Burtch v. Seaport Capital, 2012 WL 112503; In re USDigital, Inc., 461 B.R. 276. These courts make various observations in support of the narrow view, one of which is that bankruptcy courts have entered final judgments in fraudulent transfer actions for many years. The District Court for Rhode" }, { "docid": "12599339", "title": "", "text": "to Stem, whether it can enter a final judgment regarding each cause of action that the Trustee asserts. 1. Fraudulent Conveyance Claims Pursuant to Section 544(b) of the Bankruptcy Code and N.C. Gen. Stat. § 39-23.4 and Pursuant to Section 548 of the Bankruptcy Code The Trustee asserts four claims against DLI and Maria based on Section 544(b) and N.C. Gen.Stat. § 39-23.4, or based on Section 548. The Trustee alleges that collectively they received various transfers from the Debtor totaling over $867,000.00. DLI and Maria argue that the adjudication of these fraudulent conveyance claims has nothing to do with the allowance of proofs of claim. They also argue that the Trustee’s claims are based on state fraudulent conveyance law, so they do not stem from the Debtor’s bankruptcy. They maintain that the Court may only submit proposed findings of fact and conclusions of law pursuant to 28 U.S.C. § 157(c)(1). These claims are fraudulent conveyance actions pursuant to Sections 544(b) and 548 of the Bankruptcy Code. 28 U.S.C. § 157(b)(2)(H) provides that “proceedings to determine, avoid, or recover fraudulent conveyances” are core proceedings. The second prong of the Stem test cannot be satisfied because neither DLI nor Maria filed a proof of claim. But do such claims satisfy the first prong of the Stem test? Do they stem from the Bankruptcy Code? These are questions as to which reasonable minds have already differed. Cf. In re Heller Ehrman LLP, 464 B.R. 348, 352-54 (Bankr.N.D.Cal.2011) (bankruptcy court lacks constitutional authority to enter final judgment on fraudulent conveyance claim), with Burtch v. Seaport Capital, LLC et al. (In re Direct Response Media, Inc.), 466 B.R. 626 (Bankr.D.Del.2012) (bankruptcy court may enter final judgment on fraudulent conveyance claim). It is obvious that Sections 544(b) and 548 are part of the Bankruptcy Code, and it appears at first blush that they must be bankruptcy causes of action. However, history teaches otherwise. Prior to the founding of this country, fraudulent conveyances had long been decided in English courts of law through the application of the common law. “The first major statutory codification of the" }, { "docid": "17536758", "title": "", "text": "may continue to enter final judgment in a fraudulent transfer action. See In re Bellingham, 702 F.3d at 562 (collecting cases). These cases observe that Stem addressed state law counterclaims, not claims explicitly provided for in the Code. They cite to Chief Justice Roberts’s statement that the holding in Stem is narrow and his observation that the decision is unlikely to have significant practical consequences beyond context of state law counterclaims. Stern, 131 S.Ct. at 2620. Ignoring the narrow characterization of the Supreme Court ruling as dicta, the Ninth Circuit held that the Supreme Court’s reliance on Granfinanciera demonstrates that the Court “fully equated bankruptcy litigants’ Seventh Amendment right to a jury trial in federal bankruptcy proceedings with them right to proceed before an Article III judge.” Stern, 131 S.Ct. at 2614 n. 7 quoted in In re Bellingham, 702 F.3d at 563 (“Congress could not constitutionally assign resolution of the fraudulent conveyance action to a non-Article III court.”) Most relevant to the issue in this case, the Stem Court observed that the state law counterclaim before it “ — like the fraudu lent conveyance claim at issue in Granfinanciera-does not fall within any of the varied formulations of the public rights exception in this Court’s cases.” Stern, 131 S.Ct. at 2614. See Weisfelner v. Blavatnik (In re Lyondell Chemical Co.), 467 B.R. 712, 720 (S.D.N.Y.2012) (“Under both Stem and Granfinanciera, then, it is axiomatic that a fraudulent conveyance claim against a person who has not submitted a claim against a bankruptcy estate, brought solely to augment the bankruptcy estate, is a mater of private right.”) Several bankruptcy courts in the Third Circuit have addressed the issue of whether a bankruptcy court has the constitutional authority to issue a final order in fraudulent transfer action. Bankruptcy courts in Delaware and the Western District of Pennsylvania have concluded that because Stem did not address the ability of an Article I court to finally decide fraudulent transfer actions, bankruptcy courts continue to possess the constitutional authority to enter final orders in these core matters. See Zazzali v. 1031 Exchange Group (In re" }, { "docid": "12599340", "title": "", "text": "determine, avoid, or recover fraudulent conveyances” are core proceedings. The second prong of the Stem test cannot be satisfied because neither DLI nor Maria filed a proof of claim. But do such claims satisfy the first prong of the Stem test? Do they stem from the Bankruptcy Code? These are questions as to which reasonable minds have already differed. Cf. In re Heller Ehrman LLP, 464 B.R. 348, 352-54 (Bankr.N.D.Cal.2011) (bankruptcy court lacks constitutional authority to enter final judgment on fraudulent conveyance claim), with Burtch v. Seaport Capital, LLC et al. (In re Direct Response Media, Inc.), 466 B.R. 626 (Bankr.D.Del.2012) (bankruptcy court may enter final judgment on fraudulent conveyance claim). It is obvious that Sections 544(b) and 548 are part of the Bankruptcy Code, and it appears at first blush that they must be bankruptcy causes of action. However, history teaches otherwise. Prior to the founding of this country, fraudulent conveyances had long been decided in English courts of law through the application of the common law. “The first major statutory codification of the common law of fraudulent conveyances is that of 13 Elizabeth I Ch. 5 (1570).” Duck v. Munn, 823 F.2d at n. 2; see Granfinanciera, 492 U.S. at 43, 109 S.Ct. 2782 (“There is no dispute that actions to recover preferential or fraudulent transfers were often brought at law in late 18th-century England.”). The English distinction between courts of law and courts of equity was continued under the Bankruptcy Act of 1898, with district courts exercising plenary jurisdiction over actions to augment the bankruptcy estate and bankruptcy courts exercising summary jurisdiction over actions to allow claims, divvy up assets, and adjust the debtor/creditor relationship. “[A] trustee’s avoidance actions to, e.g., avoid and recover preferential transfers and fraudulent conveyances were not within the summary jurisdiction of referees; rather, such avoidance actions had to be brought by plenary suit in an Article III court with Seventh Amendment jury trial rights” Brubaker, Part II, at *35. This dichotomy is based on the fact that [bjankruptcy jurisdiction, at its core, is in rem. That was as true in the 18th" }, { "docid": "7476628", "title": "", "text": "trial before a bankruptcy judge, an adversary proceeding will be transferred to the District Court when the case is ready for trial. Bankr.Local Rule 9015-3(a) (N.D.Ga.). The Bankruptcy court rules on all pre-trial motions. Id. III. DISCUSSION Defendant contends the bankruptcy court is without constitutional power to finally determine if the 2009 investments of Debtor in Defendant were fraudulent, and if so, if the underlying transfers are avoidable and recoverable. Defendant argues that pursuant to the decision in Granfinanciera, 492 U.S. at 35, 109 S.Ct. 2782 a fraudulent conveyance action is “quintessentially” the kind of claim that requires determination by an Article III court and cannot be constitutionally decided in the bankruptcy court. Defendant cites the decisions of various courts that have reached this conclusion. See e.g. Meoli v. The Huntington National Bank (In re Teleservices Group, Inc.), 456 B.R. 318 (Bankr.W.D.Mich.2011); Paloian v. Amer. Express Co. (In re Canopy Financial, Inc.), 464 B.R. 770 (N.D.Ill.2011); Heller Ehrman LLP v. Arnold Porter LLP, 464 B.R. 348 (N.D.Cal.2011). Defendant’s argument, and the argument of much of its supporting case law, is effectively that Granfinanciera has made clear that fraudulent conveyance suits are exercises of the Article III judicial power, as “quintessentially suits at common law that more nearly resemble state law contract claims ... than they do creditors’ claims to a pro rata share of the bankruptcy res. ” Granfinanciera, 492 U.S. at 35, 109 S.Ct. 2782; Canopy Financial, 464 B.R. at 773; Heller Ehrman, 464 B.R. at 353-54. Stem held that only Article III courts may enter final judgment in actions that are quintessentially suits at common law. Canopy Financial, 464 B.R. at 773; Heller Ehrman, 464 B.R. at 354. Defendant argues that given the Supreme Court’s prior holding in Granfinanciera, it follows necessarily from Stem that fraudulent conveyance claims can no longer be decided in the bankruptcy court. Yet Defendant’s interpretation of Stem fails to account for the repeated emphasis of the Supreme Court that the decision was “narrow” and “does not change all that much.” 131 S.Ct. at 2620. Stem should not “meaningfully change ... the division of" }, { "docid": "10714759", "title": "", "text": "judgments in fraudulent transfer and preference actions where ... they have not filed proof of claims against the bankruptcy estate.” The court held “Plaintiffs fraudulent transfer and preference claims are statutorily defined core claims to which the holding of Stem does not apply, and therefore the Bankruptcy Court has authority to enter final judgments on such claims pursuant to 28 U.S.C. § 157(b)(1).” Id. at *8. A bankruptcy court within this circuit also concluded: In point of fact, the process of garnering fraudulently-transferred assets back into the bankruptcy estate — to the resultant benefit of all creditor's — is one of those proceedings which is by its very nature essential to the adjustment and restructuring of debtor-creditor relationships that is at the core of federal bankruptcy jurisdiction. Kelley v. JPMorgan Chase & Co., 464 B.R. 854, 863 (Bankr.D.Minn.2011) (citation omitted). “The preference and fraudulent transfer claims arise both under Title 11 and in a case under Title 11 and are by definition ‘core’ issues under § 157(b)(2)(F) & (H) for which a bankruptcy court has authority to enter final adjudications.” In re Direct Response Media, Inc., 466 B.R. at 646. Other cases, however, have read Stem to have a broader effect in this setting— and thus a narrowing of bankruptcy courts’ authority to issue final judgments. See Kirschner v. Agoglia, No. 11 Civ. 8250, 2012 WL 1622496 (S.D.N.Y. May 9, 2012); Heller Ehrman LLP v. Arnold & Porter, LLP (In re Heller Ehrman LLP), 464 B.R. 348, 354 (N.D.Cal.2011); Field v. Lindell (In re The Mortgage Store, Inc.), 464 B.R. 421, 426 (D.Haw.2011); Paloian v. Am. Express Co. (In re Canopy Fin., Inc.), 464 B.R. 770 (N.D.Ill.2011); McCarthy v. Wells Fargo Bank (In re El-Atari), No. 1:11cv1090, 2011 WL 5828013, at *2 (E.D.Va. Nov. 12, 2011) (‘Stern, together with Granfinanciera, clearly supports the conclusion that the authority to issue a final decision in a fraudulent conveyance action is reserved for Article III courts.”). In In re The Mortgage Store, the Hawaii District Court held: Other courts have found that Stem’s rationale applies to iraudulent transfer claims such that bankruptcy courts" }, { "docid": "7476629", "title": "", "text": "its supporting case law, is effectively that Granfinanciera has made clear that fraudulent conveyance suits are exercises of the Article III judicial power, as “quintessentially suits at common law that more nearly resemble state law contract claims ... than they do creditors’ claims to a pro rata share of the bankruptcy res. ” Granfinanciera, 492 U.S. at 35, 109 S.Ct. 2782; Canopy Financial, 464 B.R. at 773; Heller Ehrman, 464 B.R. at 353-54. Stem held that only Article III courts may enter final judgment in actions that are quintessentially suits at common law. Canopy Financial, 464 B.R. at 773; Heller Ehrman, 464 B.R. at 354. Defendant argues that given the Supreme Court’s prior holding in Granfinanciera, it follows necessarily from Stem that fraudulent conveyance claims can no longer be decided in the bankruptcy court. Yet Defendant’s interpretation of Stem fails to account for the repeated emphasis of the Supreme Court that the decision was “narrow” and “does not change all that much.” 131 S.Ct. at 2620. Stem should not “meaningfully change ... the division of labor in the [bankruptcy statute].” Id. “[T]he adjudication of fraudulent transfer and avoidance actions is a basic feature of that division of labor.” Fox v. Picard (In re Madoff), 2012 WL 990829, at *12 n. 5 (S.D.N.Y. March 26, 2012). Stem, if in fact it removes such matters from the purview of the bankruptcy courts, was not dealing with only a “slight encroachment” on the territory of the Article III courts. 131 S.Ct. at 2620 (quoting Reid v. Covert, 354 U.S. 1, 39, 77 S.Ct. 1222, 1 L.Ed.2d 1148 (1957)). As the Court itself in Stem presented its holding as being “the removal of counterclaims such as Vickie’s from core bankruptcy jurisdiction,” id., a narrow view of Stem is preferable, not taking out of the purview of the bankruptcy court claims of a type that routinely fall before it. “To broadly apply Stem’s holding is to create a mountain out of a mole hill.” In Re USDigital, Inc., 461 B.R. 276, 292 (Bankr.D.Del.2011). Although Defendant cites several courts who disagree with this narrow approach to" }, { "docid": "10714760", "title": "", "text": "authority to enter final adjudications.” In re Direct Response Media, Inc., 466 B.R. at 646. Other cases, however, have read Stem to have a broader effect in this setting— and thus a narrowing of bankruptcy courts’ authority to issue final judgments. See Kirschner v. Agoglia, No. 11 Civ. 8250, 2012 WL 1622496 (S.D.N.Y. May 9, 2012); Heller Ehrman LLP v. Arnold & Porter, LLP (In re Heller Ehrman LLP), 464 B.R. 348, 354 (N.D.Cal.2011); Field v. Lindell (In re The Mortgage Store, Inc.), 464 B.R. 421, 426 (D.Haw.2011); Paloian v. Am. Express Co. (In re Canopy Fin., Inc.), 464 B.R. 770 (N.D.Ill.2011); McCarthy v. Wells Fargo Bank (In re El-Atari), No. 1:11cv1090, 2011 WL 5828013, at *2 (E.D.Va. Nov. 12, 2011) (‘Stern, together with Granfinanciera, clearly supports the conclusion that the authority to issue a final decision in a fraudulent conveyance action is reserved for Article III courts.”). In In re The Mortgage Store, the Hawaii District Court held: Other courts have found that Stem’s rationale applies to iraudulent transfer claims such that bankruptcy courts cannot enter judgment and instead must enter findings and recommendations. See, e.g., In re Canopy Fin., Inc. [464 B.R. 770], 2011 WL 3911082 (N.D.Ill. Sept. 1, 2011); see also In re Teleservices Group, Inc., 456 B.R. 318 (Bankr.W.D.Mich.2011). Courts have come to this conclusion in light of the fact that Stem relied on Granfinanciera, S.A. v. Nordberg, 492 U.S. 33, 109 S.Ct. 2782, 106 L.Ed.2d 26 (1989), in concluding that a debtor’s counterclaim is not a matter of “public right” that can be determined outside the judicial branch. Granfinan-ciera held that a fraudulent transfer claim, although technically a “core proceeding,” did not assert a public right such that a defendant has a right to a jury trial. Stem found particularly relevant that in Granfinanciera, “[w]e reasoned that fraudulent conveyance suits were ‘quintessentially suits at common law that more nearly resemble state law contract claims brought by a bankrupt corporation to augment the bankruptcy estate than they do creditors’ hierarchically ordered claims to a pro rata share of the bankruptcy res.” Id. at 56, 109 S.Ct." }, { "docid": "10749115", "title": "", "text": "proof of claim does not automatically authorize the bankruptcy court to enter a final judgment against that creditor. Instead, the bankruptcy judge’s authority hinges on an analysis of whether resolution of the debtor’s independent claim is necessary to determine the creditor’s proof of claim. Such a test was employed by the Seventh Circuit in In re Ortiz, 665 F.3d 906, 914-15 (7th Cir.2011). This has led one commentator to conclude: “Without a perfect match-up of issues, such that deciding the proof of claim necessarily resolves the debtor’s claim, and vice versa, Stem would indicate that a bankruptcy judge cannot decide any state law or common issue against a third party.” After Stem, courts disagreed on whether bankruptcy judges could enter final judgments in fraudulent conveyance actions, absent the consent of the parties. Contrast for example, In re Menotte v. United States (In re Custom Contractors, LLC), 462 B.R. 901 (Bankr.S.D.Fla.2011); Burtch v. Seaport Capital, LLC (In re Direct Response Media, Inc.), 466 B.R. 626, 645-46 (Bankr.D.Del.2012) (yes)— with Heller Ehrman LLP v. Arnold & Porter, LLP (In re Heller Ehrman LLP), 464 B.R. 348 (N.D.Cal.2011); In re Teleservices Group, Inc., 456 B.R. 318 (Bankr.W.D.Mich.2011); Paloian v. Am. Express Co. (In re Canopy Fin., Inc.), 464 B.R. 770 (N.D.Ill.2011) (no). In reviewing the twelve fraudulent transfer counts brought in this case, this court concludes it has the power to enter final orders on those counts, since they were integral and necessary to resolving Defendants’ proofs of claim. All of Defendants’ proofs of claim sought payment on obligations arising solely from the sale of BCI. BCI’s adversary complaint tries to avoid that sale and the transfers of property that resulted from it. Ed, as collateral agent for himself and his sisters, filed secured Claim 243-1 on October 5, 2006, in the amount of $4,172,054.79 plus expenses. This claim represented Ed and his sisters’ lien on BCI’s collateral to secure a note issued by BCHC, the purchaser of BCI. The remaining defendant in this proceeding, Barsaled LLC, filed unsecured Claim 245-1 in the amount of $168,022.58, which represented rent due from BCI on" } ]

[ { "docid": "22369708", "title": "", "text": "history of the Act, in the predecessor statutes, or in nonstatu-tory law — that Congress might have intended that a party who negligently sinks a vessel should be shielded from personal responsibility. We therefore hold that the remedies and procedures specified by the Act for the enforcement of § 15 were not intended to be exclusive. Applying the principles of our decision in Republic Steel, we conclude that other remedies, including those here sought, are available to the Government. II. Article I, § 8, of the Constitution grants to Congress the power to regulate commerce. For the exercise of this power, the navigable waters of the United States are to be deemed the “public property of the nation, and subject to all the requisite legislation by Congress.” Gilman v. Philadelphia, 3 Wall. 713, 725 (1866). The Federal Government is charged with ensuring that navigable waterways, like any other routes of commerce over which it has assumed control, remain free of obstruction. Cf. In re Debs, 158 U. S. 564, 586 (1895). The Rivers and Harbors Act of 1899, an assertion of the sovereign power of the United States, Sanitary District v. United States, 266 U. S. 405 (1925), was obviously intended to prevent obstructions in the Nation’s waterways. Despite some difficulties with the wording of the Act, we have consistently found its coverage to be broad. See, e. g., Sanitary District v. United States, supra; United States v. Republic Steel Corp., 362 U. S. 482 (1960). And we have found that a principal beneficiary of the Act, if not the principal beneficiary, is the Government itself. United States v. Republic Steel Corp., supra, at 492. Our decisions have established, too, the general rule that the United States may sue to protect its interests. Cotton v. United States, 11 How. 229 (1851); United States v. San Jacinto Tin Co., 125 U. S. 273 (1888); Sanitary District v. United States, supra. This rule is not necessarily inapplicable when the particular governmental interest sought to be protected is expressed in a statute carrying criminal penalties for its violation. United States v. Republic Steel" } ]

[ { "docid": "15750037", "title": "", "text": "and Harbors Appropriation Act of 1899, 33 U.S.C. §§ 401 et seq. In Neches Canal Co. v. Miller & Vidor Lumber Co., 24 F.2d 763 (5th Cir. 1928), this court held that a private party could enjoin another private party who had violated 33 U.S.C. § 401 by building a dam over a navigable waterway without first obtaining the consent of Congress or the approval of the Army Corps of Engineers. However, considering the constitutional complexion of the present suit, we feel that the Neches Canal decision should properly be limited to the peculiar fact situation presented there. The suit in Neches Canal was between private parties. None of the defendants there could assert the defense of sovereign immunity granted by the eleventh amendment. There the obstruction, a dam, was placed in the navigable waterway without a license or a permit; thus the acts of the defendants clearly violated 33 U.S.C. § 401 .... However more importantly, the court in Neches Canal merely utilized the applicable standards enacted by Congress to determine whether a court could properly grant the equitable relief there prayed for. The court observed that the plaintiff was an “in tended beneficiary” of the congressional enactment and therefore the remedy provided by section 406, an injunction could be maintained by a private party. We receive many equitable considerations which influence the reasoning of the court that are not present here. 482 F.2d at 366 n.14. The Rivers and Harbors Appropriation Act of 1899 does not evince an intent to visit liability on states. The Act requires a federal permit for bridge building and prohibits unauthorized obstruction of navigation. The Act’s specific remedies for violation do not include a private action for damages. Section 406 provides that a violation of sections 401, 403, and 404 shall be a misdemeanor and, further, that an obstruction may be eliminated by injunctive proceedings brought under the direction of the Attorney General of the United States. As the Third Circuit stated in Red Star Towing & Transportation Co. v. Department of Transportation of New Jersey, 423 F.2d 104, 105-06 (3d Cir. 1970):" }, { "docid": "20542137", "title": "", "text": "of the benefit of that rule. The inadequacy of the criminal penalties explicitly provided by § 16 of the Rivers and Harbors Act is beyond dispute. That section contains only meager monetary penalties. In many cases, as here, the combination of these fines and the Government’s in rem rights would not serve to reimburse the United States for removal expenses. It is true that § 16 also provides for prison terms, but this punishment is hardly a satisfactory remedy for the pecuniary injury which the negligent shipowner may inflict upon the sovereign. Cf. United States v. Acme Process Equipment Co., 385 U.S. 138, 87 S.Ct. 350, 17 L.Ed.2d 249 (1966).” The relief to which the government is entitled is the “remedy that ensures the full effectiveness of the Act”, Wyandotte, 389 U.S. at p. 204, 88 S.Ct. at p. 387. That relief includes injunction for removal of obstructions and restoration of the area surrounding a navigable water to its original condition. United States v. Baker, supra, and United States v. Joseph G. Moretti, Inc., 331 F.Supp. 151 (D.C.S.D.Fla.1971). In construing Section 406, the Honorable William O. Merhtens held: “Although Section 406 authorizes the removal of ‘structures’ created in violation of Section 403, the language in Section 403 of Title 33, United States Code, specifically the use of the word ‘obstruction’ is broad enough to justify the removal of any obstruction or any diminution of the navigable capacity of a watenuay. Consequently, a district court has authority under the Rivers and Harbors Act of 1899 to order the navigable capacity of a waterway restored. United States v. Joseph G. Moretti, Inc., supra, p. 158.” The power of the district court to grant injunctive relief is far greater in situations where the public interest is involved. Virginian Railway Company v. System Federation, 300 U.S. 515, 57 S.Ct. 592, 81 L.Ed. 789 (1937); United States v. First National Bank, 379 U.S. 378, 85 S.Ct. 528, 13 L.Ed.2d 365 (1964). The public interest in protection of the navigability and the ecological aspects of the waters of the United States is clearly spelled out in" }, { "docid": "10658522", "title": "", "text": "were part of the efforts by Congress to maintain the nation’s navigable waterways, as routes of commerce, free from obstructions. A similar view was expresed by the Supreme Court in a recent opinion involving this legislation, as follows: Article 1, § 8 of the Constitution grants to Congress the power to regulate commerce. For the exercise of this power the navigable waters of the United States are to be deemed the “public property of the nation and subject to all the requisite legislation by Congress.” * * * the federal government is charged with ensuring that navigable waterways, like any other routes of commerce over which it has assumed control, remain free of obstruction. * * * the Rivers and Harbors Act of 1899, an assertion of the sovereign power of the United States, * * * was obviously intended to prevent obstructions in the nation’s waterways. Despite some difficulties with the wording of the Act, we have consistently found its coverage to be broad. * * * and we have found that a principal beneficiary of the Act, if not the principal beneficiary, is the Government itself, (citations omitted). Wyandotte Transportation Co. v. United States, 389 U.S. 191, 88 S.Ct. 379, 19 L.Ed.2d 407 (1967). This court concludes that the purposes and extent of the Rivers and Harbors Act was to assist the federal government in insuring that our navigable waterways remain free of obstruction and to protect the special interest in freedom from such obstructions of those who use the nation’s waterways for purposes of navigation. Numerous judicial decisions have held that violation of the penal provisions of the 1899 Act with resultant injury to rights of navigation or anchorage can be the basis of a federal right of action, either within general admiralty jurisdiction or as an implied federal cause of action. On the other hand, no court has recognized a federally created right of action under the 1899 Act where the interest to be protected is unrelated to rights of navigation or anchorage. The few decisions considering the matter have consistently denied that such a federally-created" }, { "docid": "6812054", "title": "", "text": "commerce. By virtue of this power, Congress may prevent or regulate obstruction of these waterways by the states through which they pass. The damming of a previously navigable waterway by a state cannot divest Congress of its control over a potentially useful artery of commerce, since such obstructions may always be removed. Hence the courts have reasonably held that a navigable river is not rendered non-navigable by artificial obstruction. However, if the damming of a waterway has the practical effect of eliminating commercial maritime activity, no federal interest is served by the exercise of admiralty jurisdiction over the events transpiring on that body of water, whether or not it was originally navigable. No purpose is served by application of a uniform body of federal law, on waters devoid of trade and commerce, to regulate the activities and resolve the disputes of pleasure boaters. Only the burdening of federal courts and the frustrating of the purposes of state tort law would be thereby served. Adams v. Montana Power Co., 528 F.2d 437, 440-41 (9th Cir.1975) (citations omitted); see also Chapman v. United States, 575 F.2d 147, 149-50 (7th Cir.1978) (in banc) (quoting Adams). Recognizing the distinction between legislative authority under the Commerce Clause and admiralty jurisdiction, every circuit court to confront the question has rejected the historic navigability jurisdictional test when determining admiralty jurisdiction. In Adams, the Ninth Circuit held that a dam that prevented a waterway from being used as an artery of interstate commerce also prevented federal courts from exercising admiralty jurisdiction over a recreational boating accident that occurred on the waterway. Adams, 528 F.2d at 440-41. Similarly, in Livingston v. United States, 627 F.2d 165 (8th Cir.1980), the Eighth Circuit rejected a plaintiffs claim that because a river was navigable before the construction of an impassable dam, it remained navigable for all time: [T]he closing of waters to commercial shipping should likewise have the effect of eliminating admiralty jurisdiction over them. In other words, the concept of “navigability” in admiralty is properly limited to describing a present capability of the waters to sustain commercial shipping. Id. at 169-70" }, { "docid": "11637200", "title": "", "text": "are actually “navigability” cases decided under the powers of Congress under the Commerce Clause of the Constitution. This is a different constitutional power; it defines the powers of Congress to legislate but it cannot be used to enlarge the specific jurisdiction of the United States courts in admiralty. The powers of Congress to legislate are greater than the powers of the Federal courts to adjudicate. Thus, under the Rivers and Harbors Act of 1899 (30 Stat. 1121); and the Federal Water Power Act of 1920 (41 Stat. 1063), and the Federal Power Act of 1935 (49 Stat. 803) Congress imposed limitations on the rights to build bridges, dams, or other obstructions over or in watercourses that were navigable or capable of being made navigable. United States v. Appalachian Electric Power Co., cit. supra upheld the action of the United States over a river capable of being made suitable for use in navigation. “The power of the United States over its waters which are capable of use as interstate highways arises from the commerce clause of the Constitution”. 311 U.S. p. 404, 61 S.Ct. p. 298. Similarly, in Economy Light and Power Co. v. United States, 256 U.S. 113, 41 S.Ct. 409, 65 L.Ed. 847 (1921), a river, once declared navigable by Congress, but not so used for over 100 years, was involved. The court held that a river having actual navigable capacity in its natural state and capable of carrying commerce among the states, is within the power of Congress to preserve for the purpose of future transportation, even though it be not at present used for such commerce, and be incapable of such use according to present methods, either by reason of changed conditions, or because of artificial obstructions, (p. 128, 41 S. Ct. p. 413) * * * The river in question being once a navigable waterway and recognized as such by Congress, and having been used for trade and Commerce, it might again become so. If they are to be abandoned, it is for Congress, not the courts to so declare.” (p. 124, 41 S.Ct. p.413). The" }, { "docid": "20368600", "title": "", "text": "by entering into business as a common carrier by rail “necessarily consented to such suit as was authorized by that Act.” 377 U.S. at 192, 84 S.Ct. at 1213. In the present case, by constructing and operating the Witt-Penn Bridge over a navigable waterway, the State of New Jersey became subject to Acts of Congress regulating navigation, among them the Rivers and Harbors Appropriation Act of 1899, 33 U.S.C. §§ 401, 403 (1964), which requires a federal permit for bridge building and prohibits unauthorized obstruction of navigation. But Congress in exercising this regulatory authority over navigation did not, as it had in the Federal Employers’ Liability Act, create any civil cause of action in favor of private parties injured by any violation of the Act. Rather, it chose to achieve its regulatory purpose through specific penal sanctions. In the Parden case ,the Supreme Court made clear that the mere entry of a State into a field of congressional regulation will not subject it to suit by private individuals. 377 U.S. at 186, 84 S.Ct. 1207. Congress must express an intent to override the State’s immunity. In Parden the Supreme Court found such an intent in the creation by Congress of such a cause of action against private persons as was asserted against the State. However, as has been pointed out, the presently relevant statute regulating the bridging of navigable streams does not confer any new civil remedy upon private parties and thus cannot by logical inference be read as intended to impose equivalent civil liability on an otherwise immune State. A contrary result in Chesapeake Bay Bridge and Tunnel District v. Lauritzen, E.D.Va.1966, 259 F.Supp. 633, aff’d, 4th Cir. 1968, 404 F.2d 1001, seems to be based upon the court’s conclusion that the Rivers and Harbors Appropriation Act of 1899 was designed to protect private persons. But that, in our view, is not enough. Where Congress, in providing protection against private violators created no new remedy other than penal sanctions, we think it is illogical to imply that Congress intended that a violation by the State should give rise to" }, { "docid": "10658523", "title": "", "text": "beneficiary of the Act, if not the principal beneficiary, is the Government itself, (citations omitted). Wyandotte Transportation Co. v. United States, 389 U.S. 191, 88 S.Ct. 379, 19 L.Ed.2d 407 (1967). This court concludes that the purposes and extent of the Rivers and Harbors Act was to assist the federal government in insuring that our navigable waterways remain free of obstruction and to protect the special interest in freedom from such obstructions of those who use the nation’s waterways for purposes of navigation. Numerous judicial decisions have held that violation of the penal provisions of the 1899 Act with resultant injury to rights of navigation or anchorage can be the basis of a federal right of action, either within general admiralty jurisdiction or as an implied federal cause of action. On the other hand, no court has recognized a federally created right of action under the 1899 Act where the interest to be protected is unrelated to rights of navigation or anchorage. The few decisions considering the matter have consistently denied that such a federally-created right of action exists. Plaintiffs rely heavily upon Alameda Conservation Association v. California, 437 F.2d 1087 (9th Cir. 1971). This decision is not regarded as persuasive on the issue before this court because in Alameda several alternate bases of federal jurisdiction were alleged and the only question discussed in the opinion was that of the plaintiffs’ standing to sue. Since-plaintiffs in the present case are complaining of injury to their private property, they clearly have standing to sue for such injury. Moreover, in Alameda the involvement of various sections of the Rivers and Harbors Act was on account of the filling or obstruction of large portions of San Francisco Bay. Such activity is clearly within the federally protected sphere of navigation and anchorage. It is the court’s opinion that the foregoing conclusion with respect to purposes and intent of the Rivers and Harbors Appropriation Act of 1899 is sound and fully supported by the legislative and administrative history of the Act. Section 407, like the other sections of the Rivers and Harbors Act, was enacted" }, { "docid": "9630621", "title": "", "text": "Cir. 1968) ; Citizens’ Committee for the Hudson Valley v. Volpe, 425 F.2d 97 (2d Cir. 1970), cert. denied, 400 U.S. 949, 91 S.Ct. 237, 27 L.Ed.2d 256; Office of Communication of United Church of Christ v. F.C.C., 123 U.S.App.D.C. 328, 359 F.2d 994 (1966) ; Environmental Defense Fund v. Hardin, 428 F.2d 1093 (D.C.Cir. 1970). . Whether a private claimant specifically injured by a violation of § 407 — a riparian owner, for instance — can sue for an injunction or damages is an issue not now before us, and we do not reach it. A strong case against the right, at least where the injury is not related to navigation, is made in Guthrie v. Alabama By-Products Co., supra, 328 F.Supp. 1140 (N.D.Ala.1971). That opinion notes that “a principal beneficiary of the Act, if not the principal beneficiary, is the Government itself” (Wyandotte Transp. Co. v. United States, 389 U.S., supra, at 201, 88 S.Ct. at 386), and points out that the Act includes provisions regulating all kinds of obstructions in navigable waters (33 U.S.C.A. §§ 401, 406) ; providing for establishment of harbor lines and prohibiting encroachments (33 U.S.C.A. § 404) ; regulating the creation and providing for the removal of all kinds of obstructions (33 U.S.C.A. §§ 403, 409, 414-15) ; regulating deposits of refuse in and adjacent to navigable waters (33 U.S.C.A. § 407) ; prohibiting injuries to river and harbor improvements (33 U.S.C.A. § 408) ; and providing for criminal penalties (33 U.S.C.A. § 411-13). “It is clear that these provisions were part of the efforts by Congress to maintain the nation’s navigable waterways, as routes of commerce, free from obstructions.” 328 F.Supp., supra, at 1145. A review of the legislative history leads the court to conclude that the statute was enacted for the purpose of protecting navigation and anchorage and not as a general pollution control statute, or to create a private right of action unrelated to navigation. Id. at 1146-1148 . A limited form of citizens’ suit has recently been created by § 304(a) of the Clean Air Act Amendment of 1970," }, { "docid": "22369709", "title": "", "text": "Act of 1899, an assertion of the sovereign power of the United States, Sanitary District v. United States, 266 U. S. 405 (1925), was obviously intended to prevent obstructions in the Nation’s waterways. Despite some difficulties with the wording of the Act, we have consistently found its coverage to be broad. See, e. g., Sanitary District v. United States, supra; United States v. Republic Steel Corp., 362 U. S. 482 (1960). And we have found that a principal beneficiary of the Act, if not the principal beneficiary, is the Government itself. United States v. Republic Steel Corp., supra, at 492. Our decisions have established, too, the general rule that the United States may sue to protect its interests. Cotton v. United States, 11 How. 229 (1851); United States v. San Jacinto Tin Co., 125 U. S. 273 (1888); Sanitary District v. United States, supra. This rule is not necessarily inapplicable when the particular governmental interest sought to be protected is expressed in a statute carrying criminal penalties for its violation. United States v. Republic Steel Corp., supra. Our decisions in cases involving civil actions of private parties based on the violation of a penal statute so indicate. Texas & Pacific R. Co. v. Rigsby, 241 U. S. 33 (1916); J. I. Case Co. v. Borak, 377 U. S. 426 (1964). In those cases we concluded that criminal liability was inadequate to ensure the full effectiveness of the statute which Congress had intended. Because the interest of the plaintiffs in those cases fell within the class that the statute was intended to protect, and because the harm that had occurred was of the type that the statute was intended to forestall, we held that civil actions were proper. That conclusion was in accordance with a general rule of the law of torts. See Restatement (Second) of Torts § 286. We see no reason to distinguish the Government, and to deprive the United States of the benefit of that rule. The inadequacy of the criminal penalties explicitly provided by § 16 of the Rivers and Harbors Act is beyond dispute. That section" }, { "docid": "17499139", "title": "", "text": "F.Supp. 807 (W.D.Pa.1968); 7A Moore, Federal Practice, 1,200[3], The definitions of navigability may vary because, as in the present case, the purposes served by the commerce clause and admiralty jurisdiction may vary. Congress’ commerce power is designed in part to preserve and protect the nation’s waterways which, in their natural condition, are navigable in interstate commerce. United States v. Appalachian Electric Power Co., supra. By virtue of this power, Congress may prevent or regulate obstruction of these waterways by the states through which they pass. United States v. Rio Grande Dam and Irrigation Co., 174 U.S. 690, 19 S.Ct. 770, 43 L.Ed. 1136 (1899). The damming of a previously navigable waterway by a state cannot divest Congress of its control over * a potentially useful artery of commerce, since such obstructions may always be removed. Hence the courts have reasonably held that a navigable river is not rendered non-navigable by artificial obstruction. However, if the damming of a waterway has the practical effect of eliminating commercial maritime activity, no federal interest is served by the exercise of admiralty jurisdiction over the events transpiring on that body of water, whether or not it was originally navigable. No purpose is served by application of a uniform body of federal law, on waters devoid of trade and commerce, to regulate the activities and resolve the disputes of pleasure boaters. See George v. Beavark, Inc., supra. Only the burdening of federal courts and the frustrating of the purposes of state tort law would be thereby served. We therefore conclude that, notwithstanding the waterway’s navigable status under the commerce clause, it was not navigable for purposes of exercising admiralty jurisdiction. This conclusion makes it unnecessary to reach questions relating to traditional maritime activity. Affirmed. . The primary purposes of the admiralty appear to be to create some degree of uniformity in dealing with the far-flung shipping industry and to work an accommodation of the interests of both that industry and of the persons or entities who must or elect to work therefor or deal therewith. All of this is, of course, geared toward achieving some" }, { "docid": "23110159", "title": "", "text": "be injured by such deposits. But, even in a situation where the Chief of Engineers concedes that a certain deposit will not injure anchorage and navigation, the Secretary need not necessarily permit the deposit, for the proviso makes the Secretary's authority discretionary — i. e., it provides that the Secretary “may permit” the deposit. The proviso further requires that permits issued by the Secretary are to prescribe limits and conditions, any violation of which is unlawful. It is crucial to our inquiry, however, that neither the proviso nor any other provision of the statute requires that the Secretary prescribe general regulations or set criteria governing issuance of permits. Thus, while nothing in § 13 precludes the establishment of a formal regulatory program by the Secretary, it is equally clear that nothing in the section requires the establishment of such a program as a condition to rendering § 13 operative. United States v. Granite State Pack ing Co., 470 F. 2d 303, 304 (CA1 1972). In contrast, other provisions of the Rivers and Harbors Act of 1899, do include a requirement for regulations. Consequently, we disagree with the Court of Appeals that § 13 itself precludes prosecution for violation of its provisions in the absence of a formal regulatory-permit program. Similarly, there is nothing in the legislative history of § 13 that supports the conclusion of the Court of Appeals that such a requirement is to be read into the section. Section 13 is one section of a comprehensive law enacted in 1899 to codify pre-existing statutes designed to protect and preserve our Nation’s navigable waterways. United States v. Standard Oil Co., 384 U. S. 224, 226 (1966). The history of the 1899 Act begins with this Court’s decision in 1888 in Willamette Iron Bridge Co. v. Hatch, 125 U. S. 1. The Court there held that there was no federal common law prohibiting obstructions and nuisances in navigable waters. In response to that decision, Congress passed a series of laws that were later reenacted as the Rivers and Harbors Act of 1899. Section 6 of the first such law, the" }, { "docid": "17499138", "title": "", "text": "The district court found navigability under the commerce clause on the authority of an earlier decision holding that the portion of the Missouri River in question was navigable in its natural and unobstructed condition. Montana Power Co. v. Federal Power Comm., 87 U.S.App.D.C. 316, 185 F.2d 491 (1950). Early courts, believing that the scope of the commerce clause power and admiralty jurisdiction were coextensive, employed the same definition of navigable waters for both. See, e. g., The Genesee Chief, supra. The Supreme Court subsequently held, however, that the extension of the judicial power of the United States to “all Cases of admiralty and maritime Jurisdiction,” Const. Art. Ill, § 2, cl. 1, was independent of the commerce clause. In re Garnett, 141 U.S. 1, 11 S.Ct. 840, 35 L.Ed. 631 (1891); Providence & New York Steamship Co. v. Hill Mfg. Co., 109 U.S. 578, 3 S.Ct. 379, 617, 27 L.Ed. 1038 (1883). The decisions defining “navigable waters” under that clause are thus not dispositive of the question under admiralty jurisdiction. See Doran v. Lee, 287 F.Supp. 807 (W.D.Pa.1968); 7A Moore, Federal Practice, 1,200[3], The definitions of navigability may vary because, as in the present case, the purposes served by the commerce clause and admiralty jurisdiction may vary. Congress’ commerce power is designed in part to preserve and protect the nation’s waterways which, in their natural condition, are navigable in interstate commerce. United States v. Appalachian Electric Power Co., supra. By virtue of this power, Congress may prevent or regulate obstruction of these waterways by the states through which they pass. United States v. Rio Grande Dam and Irrigation Co., 174 U.S. 690, 19 S.Ct. 770, 43 L.Ed. 1136 (1899). The damming of a previously navigable waterway by a state cannot divest Congress of its control over * a potentially useful artery of commerce, since such obstructions may always be removed. Hence the courts have reasonably held that a navigable river is not rendered non-navigable by artificial obstruction. However, if the damming of a waterway has the practical effect of eliminating commercial maritime activity, no federal interest is served by the" }, { "docid": "684682", "title": "", "text": "mandates that: “The Department of Justice shall conduct the legal proceedings necessary to enforce the provisions of Sections 401, 403, 404, 406, 407, 408, 409, 411, 549, 686 and 687 of this title; . . . ” (Emphasis supplied). Plaintiffs rely on Wyandotte Transportation Co. v. United States, 389 U.S. 191, 88 S.Ct. 379, 19 L.Ed.2d 407 (1967), for the proposition that in addition to the criminal sanctions of this penal statute, they as private parties are allowed to seek injunctive relief for its alleged violation. But this case far from supporting this proposition concludes that it is the United States that has the right to injunctive relief in aid of protecting a public interest expressed in a statute containing criminal penalties for its violation. The Court there said (389 U.S. 201-202, 88 S.Ct. 385-386, citations omitted): “Article I, § 8, of the Constitution grants to Congress the power to regulate commerce. For the exercise of this power, the navigable water of the United States are to be deemed the ‘public property of the nation, and subject to all the requisite legislation by Congress.’ The Federal Government is charged with ensuring that navigable waterways, like any other routes of commerce over which it has assumed control, remain free of obstruction. The Rivers and Harbors Act of 1899, an assertion of the sovereign power of the United States, was obviously intended to prevent obstructions in the Nation’s waterways. Despite some difficulties with the wording of the Act, we have consistently found its coverage to be broad. And we have found that a principal beneficiary of the Act, if not the principal beneficiary, is the Government itself. “Our decisions have established, too, the general rule that the United States may sue to protect its interests. This rule is not necessarily inapplicable when the particular government interest sought to be protected is expressed in a statute carrying criminal penalties for its violation. Our decisions in cases involving civil actions of private parties based on the violation of a penal statute so indicate. In those cases we concluded that criminal liability was inadequate to" }, { "docid": "684683", "title": "", "text": "and subject to all the requisite legislation by Congress.’ The Federal Government is charged with ensuring that navigable waterways, like any other routes of commerce over which it has assumed control, remain free of obstruction. The Rivers and Harbors Act of 1899, an assertion of the sovereign power of the United States, was obviously intended to prevent obstructions in the Nation’s waterways. Despite some difficulties with the wording of the Act, we have consistently found its coverage to be broad. And we have found that a principal beneficiary of the Act, if not the principal beneficiary, is the Government itself. “Our decisions have established, too, the general rule that the United States may sue to protect its interests. This rule is not necessarily inapplicable when the particular government interest sought to be protected is expressed in a statute carrying criminal penalties for its violation. Our decisions in cases involving civil actions of private parties based on the violation of a penal statute so indicate. In those cases we concluded that criminal liability was inadequate to insure the full effectiveness of the statute which Congress had intended. Because the interest of the plaintiffs in those cases fell within the class that the statute was intended to protect, and because the harm that had occurred was of the type that the statute was intended to forestall, we held that civil actions were proper. That conclusion was in accordance with a general rule of the law of torts. We see no reason to distinguish the Government, and to deprive the United States of the benefit of that rule. “The inadequacy of the criminal penalties explicitly provided by § 16 of the Rivers and Harbors Act is beyond dispute. That section contains only meager monetary penalties. In many cases, as here, the combination of these fines and the Government’s in rem rights would not serve to reimburse the United States for removal expenses. It is true that § 16 also provides for prison terms, but this punishment is hardly a satisfactory remedy for the pecuniary injury which the negligent ship owner may inflict upon" }, { "docid": "1303355", "title": "", "text": "of the United States.” 40 C.F.R. § 232.2. No one argues mountaintop removal overburden is dredged spoil. . Regulations related to the permit program also were codified in the two subsections immediately following: § 209.125 Dams and dikes across waterways and § 209.130 Piers, dredging, etc. in waterways. . RHA § 10 remains in effect and reads now, as it did in 1899 and 1972: The creation of any obstruction not affirmatively authorized by Congress, to the navigable capacity of any of the waters of the United States is prohibited; and it shall not be lawful to build or commence the building of any wharf, pier, dolphin, boom, weir, breakwater, bulkhead, jetty, or other structures in any port, roadstead, haven, harbor, canal, navigable river, or other water of the United States, outside established harbor lines, or where no harbor lines have been established, except on plans recommended by the Chief of Engineers and authorized by the Secretary of the Army; and it shall not be lawful to excavate or fill, or in any manner to alter or modify the course, location, condition, or capacity of, any port, road-stead, haven, harbor, canal, lake, harbor or refuge, or inclosure within the limits of any breakwater, or of the channel of any navigable water of the United States, unless the work has been recommended by the Chief of Engineers and authorized by the Secretary of the Army prior to beginning the same. 33 U.S.C. § 403 (2001)(emphasis added). . Although dealing with refuse disposal, § 13, like the other sections of the RHA, was enacted for the purpose of protecting navigation and anchorage by keeping navigable waterways free of obstructions, and not as a general pollution control statute. See Guthrie v. Alabama By-Products Co., 328 F.Supp. 1140, 1145-47 (N.D.Ala.l971)(providing extensive legislative history of the RHA); see also United States v. Republic Steel Coip., 362 U.S. 482, 80 S.Ct. 884, 4 L.Ed.2d 903 (1960)(holding industrial discharges reduced river channel depth and created an obstruction within the meaning of § 13 .of the RHA); but cf., United States v. Standard Oil Co., 384 U.S. 224," }, { "docid": "17681286", "title": "", "text": "may not be erected “in” any navigable river without approval by the Secretary of the Army. Nor may excavations or fills, described in the third clause, that alter or modify “the course, location, condition, or capacity of” a navigable river be made unless “the work” has been approved by the Secretary of the Army. There is, apart from these particularized invasions of navigable rivers, which the Secretary of the Army may approve, the generalized first clause which prohibits “the creation of any obstruction not affirmatively authorized by Congress, to the navigable capacity” of such rivers. We can only conclude that Congress planned to ban any type of “obstruction,” not merely those specifically made subject to approval by the Secretary of the Army. Id. at 486-7, 80 S.Ct. at 887. Later, in Wyandotte Transportation Co. v. United States, 389 U.S. 191, 88 S.Ct. 379, 19 L.Ed.2d 407 (1967), the Court again emphasized the breadth of the language used by Congress. It stated that the River and Harbor Act of 1899 “was obviously intended to prevent obstructions in the Nation’s waterways. Despite some difficulties with the wording of the Act, we have consistently found its coverage to be broad.” Id. at 201, 88 S.Ct. at 385. Clearly, the Supreme Court has rejected the narrow interpretation of Section 10 which M.C.C. has advocated. Congress has prohibited all activities which obstruct the navigable waters of the United States, not just those that fall within the third clause of Section 10. But, even if we accept M.C.C.’s interpretation of Section 10, M.C.C.’s activities clearly fit within those that require a permit under the third clause of the section. The district court found that M.C.C. “willfully violated” the Act and described their behavior as “illegal and willful.” Furthermore, the district court specifically found that M.C.C. “knowingly created the propeller-dredged channel.” We can not say that the district court erred in its assessment of M.C.C.’s conduct. M.C.C. made over 112 trips through the area with its tugs after it was served with a cease and desist order by the Corps. Also, M.C.C. failed to fully comply with" }, { "docid": "22391677", "title": "", "text": "the Corps of Engineers under the Rivers and Harbors Appropriation Act of 1899, and to establish the limits of the jurisdiction of federal courts conferred by Art. Ill, § 2, of the United States Constitution over admiralty and maritime cases, Although the Government is clearly correct in maintaining that the now dredged Kuapa Pond falls within the definition of “navigable waters” as this Court has used that term in delimiting the boundaries of Congress' regulatory authority under the Commerce Clause, see, e. g., The Daniel Ball, supra, at 563; The Montello, supra, at 441-442; United States v. Appalachian Power Co-., supra, at 407-408, this Court has never held that the navigational servitude creates a blanket exception to the Takings Clause whenever Congress exercises its Commerce Clause authority to promote navigation. Thus, while Kuapa Pond may be subject to regulation by the Corps of Engineers, acting under the authority delegated it by Congress in the Rivers and Harbors Appropriation Act, it does not follow that the pond is also subject to a public right of access. A Reference to the navigability of a waterway adds little if anything to the breadth of Congress’ regulatory power over interstate commerce. It has long been settled that Congress has extensive authority over this Nation’s waters under the Commerce Clause. Early in our history this Court held that the power to regulate commerce necessarily includes power over navigation. Gibbons v. Ogden, 9 Wheat. 1, 189 (1824). As stated in Gilman v. Philadelphia, 3 Wall. 713, 724-725 (1866): “Commerce includes navigation. The power to regulate commerce comprehends the control for that purpose, and to the extent necessary, of all the navigable waters of the United States which are accessible from a State other than those in which they lie. For this purpose they are the public property of the nation, and subject to all the requisite legislation by Congress.” The pervasive nature of Congress’ regulatory authority over national waters was more fully described in United States v. Appalachian Power Co., supra, at 426-427: “[I]t cannot properly be said that the constitutional power of the United States" }, { "docid": "23110160", "title": "", "text": "1899, do include a requirement for regulations. Consequently, we disagree with the Court of Appeals that § 13 itself precludes prosecution for violation of its provisions in the absence of a formal regulatory-permit program. Similarly, there is nothing in the legislative history of § 13 that supports the conclusion of the Court of Appeals that such a requirement is to be read into the section. Section 13 is one section of a comprehensive law enacted in 1899 to codify pre-existing statutes designed to protect and preserve our Nation’s navigable waterways. United States v. Standard Oil Co., 384 U. S. 224, 226 (1966). The history of the 1899 Act begins with this Court’s decision in 1888 in Willamette Iron Bridge Co. v. Hatch, 125 U. S. 1. The Court there held that there was no federal common law prohibiting obstructions and nuisances in navigable waters. In response to that decision, Congress passed a series of laws that were later reenacted as the Rivers and Harbors Act of 1899. Section 6 of the first such law, the Rivers and Harbors Act of 1890, provided in part: “That it shall not be lawful to cast, throw, empty, or unlade, or cause, suffer, or procure to be cast, thrown, emptied, or unladen, either from or out of any ship, vessel, lighter, barge, boat, or other craft, or from the shore, pier, wharf, furnace, manufacturing establishments, or mills of any kind whatever, any ballast, stone, slate, gravel, earth, rubbish, wreck, filth, slabs, edgings, sawdust, slag, cinders, ashes, refuse, or other waste of any kind, into any port, road, roadstead, harbor, haven, navigable river, or navigable waters of the United States which shall tend to impede or obstruct navigation, or to deposit or place or cause, suffer, or procure to be deposited or placed, any ballast, stone, slate, gravel, earth, rubbish, wreck, filth, slabs, edgings, sawdust, or other waste in any place or situation on the bank of any navigable waters where the same shall be hable to be washed into such navigable waters, either by ordinary or high tides, or by storms or floods, or" }, { "docid": "10658521", "title": "", "text": "of persons for whose special benefit the statute was enacted and the statutory enactment was for the purpose of protecting against the type of harm or injury which has in fact occurred. A careful review of the Rivers and Harbors Appropriation Act of 1899, its legislative history, its administrative interpretation and its judicial gloss has convinced this court that 33 U.S.C.A. § 407 was not enacted for the purpose or with the effect of creating a federal cause of action to protect riparian landowners from the kinds of water pollution that have traditionally been dealt with under the law of nuisance. The Act of 1899 included provisions regulating all kinds of construction in navigable waters, providing for establishment of harbor lines and prohibiting encroachments, regulating the creation and providing for removal of all kinds of obstructions in navigable waters, regulating deposits of refuse in and adjacent to navigable waters, and prohibiting injuries to river and harbor improvements. Provisions were also made for enforcement of the act by criminal penalties. It is clear that these provisions were part of the efforts by Congress to maintain the nation’s navigable waterways, as routes of commerce, free from obstructions. A similar view was expresed by the Supreme Court in a recent opinion involving this legislation, as follows: Article 1, § 8 of the Constitution grants to Congress the power to regulate commerce. For the exercise of this power the navigable waters of the United States are to be deemed the “public property of the nation and subject to all the requisite legislation by Congress.” * * * the federal government is charged with ensuring that navigable waterways, like any other routes of commerce over which it has assumed control, remain free of obstruction. * * * the Rivers and Harbors Act of 1899, an assertion of the sovereign power of the United States, * * * was obviously intended to prevent obstructions in the nation’s waterways. Despite some difficulties with the wording of the Act, we have consistently found its coverage to be broad. * * * and we have found that a principal" }, { "docid": "21927016", "title": "", "text": "within § 401 only if they obstruct navigation] we apply the ordinary meaning to the term ‘any dike’ ”. 302 F.Supp. at 1089. The Court of Appeals for the Second Circuit affirmed in an opinion primarily concerned with questions of standing and jurisdiction. 425 F.2d 97 (1970). Here, defendants presented the evidence of legislative history and consistent administrative practice which was not before the court in Hudson Valley. This evidence supports the defendants’ contention that § 401 requires Congressional consent for dikes only when they are obstructions to navigation. To accept plaintiffs’ contention that any structure within the dictionary definition of a dike requires Congressional consent is to ignore the language and purpose of the legislation and its interpretation for almost 70 years. The legislative history shows that Congress enacted the Rivers and Harbors Appropriation Act of 1899, Ch. 425, 30 Stat. 1121, as a comprehensive plan for keeping our interstate waterways clear of unreasonable obstructions and structures. It required approval of the federal government for work on navigable interstate waterways. Every structure built in a navigable waterway required the approval of the Chief of Engineers and the Secretary of War (now the Secretary of the Army). In addition, for those structures like bridges, dams and dikes, usually larger structures, which are placed across a river and which constitute an obstruction to navigation, Congressional consent was required. This distinction was written into the law, apparently because of the belief that Congress could not constitutionally delegate to the Secretary of War or to any other agency the authority to permit an obstruction of a navigable waterway. United States v. Keokuk & H. Bridge Co., 45 F. 178 (S.D. Iowa 1891). In Wisconsin v. Illinois, 278 U.S. 367, 49 S.Ct. 163, 73 L.Ed. 426 (1928), the Court examined the practice of permitting the Secretary of War to issue permits under Section 403 without Congressional approval and stated: “This construction of § 10 [of the Rivers and Harbors Appropriation Act of 1899 (33 U.S.C. 403)] is sustained by the uniform practice of the War Department for nearly 30 years. Nothing is more convincing" } ]

[ { "docid": "9766576", "title": "", "text": "In light of this Court’s ruling in Meiburg, the district court struck all requests for fees relating to TMDL implementation. The court also eliminated time spent on redundant work, general background re search, unsuccessful motions, and certain specific litigation issues. The district court then awarded $139,963.57 to the remaining environmental plaintiffs, which included $30,425.61 for expenses associated with expert witness Barry Sulkin. The EPA timely appealed. We review a district court award of attorneys’ fees for abuse of discretion. ACLU v. Barnes, 168 F.3d 423, 427 (11th Cir.1999). A district court has “wide discretion” in exercising its judgment on the appropriate fee level, though the court must articulate the decisions it makes, give principled reasons for those decisions, and show the specific fee calculations. Norman v. Housing Authority of Montgomery, 836 F.2d 1292, 1304 (11th Cir.1988). A district court abuses its discretion when it fails to apply the appropriate legal standard, follows improper procedures, or relies upon clearly erroneous findings of fact. ACLU, 168 F.3d at 427. A district court may award fees for post-judgment monitoring of a consent decree. Penn. v. Del. Valley Citizens’ Council, 478 U.S. 546, 557-61, 106 S.Ct. 3088, 92 L.Ed.2d 439 (1986). However, such work must be relevant to the rights established by the decree and related to the terms of the judgment. Brooks v. Ga. State Bd. of Elections, 997 F.2d 857, 864 (11th Cir.1993). The EPA argues that the district court awarded fees for work beyond what was reasonably necessary to monitor compliance with the consent decree. Relying upon our decision in Meiburg, the EPA claims that the consent decree merely obligated the agency to establish TMDLs in some form. Although the EPA concedes that the plaintiffs may recover the costs necessary to determine whether the agency promulgated standards, the EPA insists that the plaintiffs did not have to examine the standards in any detail. According to the agency, “[o]ne does not have to review the content of the TMDLs and assess their validity to decide if EPA fulfilled its obligation to establish them as required by the decree.” We do not agree" } ]

[ { "docid": "22899141", "title": "", "text": "of the appropriate hourly rates for Goodman and Gesinsky, but the district court denied the motion. Luciano now appeals the attorneys’ fee award. Olsten now cross-appeals to prevent Luciano from enforcing the attorneys’ fees judgment, contending that if it prevails in its appeal from the underlying judgment, the award of attorneys’ fees at issue in the present cross-appeal would necessarily have to be vacated. Because we have affirmed the underlying judgment, we need not reach the merits of Olsten’s cross-appeal. DISCUSSION Arguing that her Manhattan-based counsel should be compensated at their regular New York City billing rates, Luciano argues principally that the district court: (1) erred in awarding a fee based on the prevailing hourly rates charged by competent employment discrimination lawyers in the Eastern District, rather than the higher prevailing rates charged in the Southern District, and (2) improperly reduced the compensable hours. Luciano’s arguments are unpersuasive. The statute governing employment discrimination actions provides in pertinent part: In any action or proceeding under this subchapter the court, in its discretion, may allow the prevailing party, other than the Commission or the United States, a reasonable attorney’s fee ... as part of the costs, and the Commission and the United States shall be liable for costs the same as a private person. 42 U.S.C. § 2000e-5(k). The district court is given broad discretion in granting a fee award and assessing a reasonable fee under the circumstances of the case. See, e.g., Hensley v. Eckerhart, 461 U.S. 424, 437, 103 S.Ct. 1933, 1941, 76 L.Ed.2d 40 (1983). Thus, absent an abuse of discretion or an error of law, we will not disturb the district court’s calculation of reasonable attorney’s fees. See Sands v. Runyon, 28 F.3d 1323, 1333 (2d Cir.1994). (1) Hourly Rate Determinations In determining reasonable attorney’s fees, the district court must calculate a “lodestar” figure based upon the number of hours reasonably expended by counsel on the litigation multiplied by a reasonable hourly rate. Blanchard v. Bergeron, 489 U.S. 87, 94, 109 S.Ct. 939, 944-45, 103 L.Ed.2d 67 (1989); see Cruz v. Local Union No. 3 of the Int’l" }, { "docid": "9530767", "title": "", "text": "Admin.News 5908, 5913). Because an award of attorney fees is “uniquely [within] the district court’s discretion,” the scope of our review in an attorney fees dispute is limited. We will not overturn a fee award “absent an abuse of discretion or an error in implementing the governing legal standards.” Wilmington v. J.I. Case Co., 793 F.2d 909, 923 (8th Cir.1986). Accord Moore v. City of Des Moines, 766 F.2d 343, 346 (8th Cir.1985), cert. denied, 474 U.S. 1060, 106 S.Ct. 805, 88 L.Ed.2d 781 (1986). Having reviewed the record in this case, we find no abuse of discretion or error of law. A. 1. Our primary concern in an attorney fees case is whether the fee awarded is “reasonable.” See Blum, 465 U.S. at 893, 104 S.Ct. at 1546; see also 42 U.S.C. § 1988 (“the court, in its discretion, may allow the prevailing party ... a reasonable attorney’s fee”) (emphasis added). The Supreme Court has explained that the proper method for “determining a reasonable attorney’s fee is to multiply ‘the number of hours reasonably expended on the litigation times a reasonable hourly rate.’ ... ‘[T]he resulting product [i.e., “lodestar”] is presumed to be the reasonable fee’ to which counsel is entitled.” Pennsylvania v. Delaware Valley Citizens’ Council for Clean Air, 478 U.S. 546, 564,106 S.Ct. 3088, 3098, 9.2 L.Ed.2d 439 (1986) (quoting Blum, 465 U.S. at 888, 897, 104 S.Ct. at 1543, 1548) (emphasis added in Delaware Valley). Consistent with Delaware Valley, and explicitly following Blum, the District Court set hourly rates for the attorneys’ work and calculated the fee award based on those rates. The parties do not challenge the District Court’s use of that method. Defendants claim, however, that the hourly rates used by the District Court in its calculations were unreasonably high. In particular, Defendants claim that the rate applied to Sindel and Berger’s work should not have been $150 but a “central Missouri rate” of $80 per hour. In Blum, the Supreme Court broadly stated that awards of attorney fees under § 1988 should be calculated using “market rates,” and that the “requested rates [should" }, { "docid": "14872749", "title": "", "text": "not be dismissed because of the pending state action. Subsequently, the state court action ended and the abstention issue became moot. Despite that, Appellants submitted a response regarding the Younger abstention doctrine. The district court deducted the hours spent on the abstention issue from the attorney fee award, explaining that it was not reasonable for experienced counsel to spend so much time researching the law on Younger abstention. The district court is in the best position to discern what work was unnecessary, and we are satisfied that the district court did not abuse its discretion in deducting the hours spent on the preliminary injunction and the Younger abstention doctrine. Fourth, Appellants argue that the district court erred in determining a reasonable hourly rate of $350 for their lawyers. We have held that “[i]n determining a reasonable hourly rate, the district court should be guided by the rate prevailing in the community for similar work performed by attorneys of comparable skill, experience, and reputation.” Id. at 1210-11. The district court noted that Appellants failed to submit affidavits from local attorneys or from a fee expert to show that the requested rates of $475 for Mr. Zamos and $375 for Mr. Okojie match the prevailing market rates. Appellees submitted a declaration supporting a market rate of $350 to $400 for lawyers with experience similar to Appellants’ lawyers, and the district court said its own familiarity with the Los Angeles legal market supported an hourly fee of $325 to $375 per hour. This court has never addressed whether it is proper for a district court to rely on its own familiarity with the legal market. Other circuit courts have held that judges are justified in relying on their own knowledge of customary rates and their experience concerning reasonable and proper fees. See, e.g., Norman v. Hous. Auth. of City of Montgomery, 836 F.2d 1292, 1303 (11th Cir.1988) (courts are experts as to the reasonableness of attorney fees and award may be based on court’s own experience); In re U.S. Golf Corp., 639 F.2d 1197, 1207 (5th Cir.1981) (same). We agree. We conclude that" }, { "docid": "1952205", "title": "", "text": "also halved the hourly rate requested by LULAC for attorney time and declined to make a separate award for time spent by law clerks and paralegals. II. Section 1973Z(e) of the Voting Rights Act and Section 1988 of the Civil Rights Attorneys’ Fees Award Act afford a district court the discretion to award reasonable attorneys’ fees to prevailing parties. See 42 U.S.C. §§ 1973Z(e) & 1988. The method by which the district court calculates an attorneys’ fees award is well established. The district court first calculates the “lodestar.” Watkins v. Fordice, 7 F.3d 453, 457 (5th Cir.1993). The lodestar is the product of the number of hours reasonably expended on the litigation multiplied by a reasonable hourly billing rate. Hensley v. Eckerhart, 461 U.S. 424, 434, 103 S.Ct. 1933, 1939-40, 76 L.Ed.2d 40 (1983), cited in Watkins, 7 F.3d at 457. When calculating the number of hours reasonably expended on the case and assigning a reasonable hourly rate for an attorney’s services, the district court must consider the factors articulated in Johnson v. Georgia Highway Express, Inc., 488 F.2d 714, 717-19 (5th Cir.1974). See, e.g., Watkins, 7 F.3d at 457. The lodestar is presumed to reflect a reasonable attorneys’ fee award, but the district court may adjust it upward or downward in exceptional cases. Id. (citing City of Burlington v. Dague, 505 U.S. 557, 561-63, 112 S.Ct. 2638, 2641, 120 L.Ed.2d 449 (1992)); see also Walker v. United States Dep’t of Hous. and Urban Dev., 99 F.3d 761, 771-73 (5th Cir.1996) (describing the limited circumstances in which an adjustment to the lodestar is appropriate). This court reviews the district court’s award of attorneys’ fees for an abuse of discretion. Watkins, 7 F.3d at 457. Subsidiary factual findings are reviewed for clear error. Id. “[T]he district court has broad discretion in setting the appropriate award of attorneys’ fees.” Id. (citing Hensley, 461 U.S. at 436-37, 103 S.Ct. at 1941). A. Number of Hours Reasonably Expended The district court must first calculate the number of hours reasonably expended on the litigation. Louisiana Power & Light Co. v. Kellstrom, 50 F.3d 319, 324" }, { "docid": "22847285", "title": "", "text": "Davis v. Board of Sch. Comm’rs, 517 F.2d 1044, 1052 (5th Cir.1975), cert. denied, 425 U.S. 944, 96 S.Ct. 1685, 48 L.Ed.2d 188 (1976). Ray’s complaints about the trial judge, however, are nothing more than complaints about the judge’s timeliness and rulings. Neither the district judge’s delay, nor his adverse rulings, constitute the sort of “pervasive bias” that necessitates recusal. Accordingly, we affirm the district court’s denial of Loranger’s motion for recusal. B. Did the district court err in fashioning Ray’s fee award? The starting point in fashioning an award of attorney’s fees is to multiply the number of hours reasonably expended by a reasonable hourly rate. Hensley v. Eckerhart, 461 U.S. 424, 433, 103 S.Ct. 1933, 1939, 76 L.Ed.2d 40 (1983). This “lodestar” may then be adjusted for the results obtained. Id. at 435-37, 103 S.Ct. at 1940-41; Norman v. Housing Auth., 836 F.2d 1292, 1302 (11th Cir.1988). Although a district court has wide discretion in performing these calculations, Hensley, 461 U.S. at 437, 103 S.Ct. at 1941, “[t]he court’s order on attorney’s fees must allow meaningful review — the district court must articulate the decisions it made, give principled reasons for those decisions, and show its calculation.” Norman, 836 F.2d at 1304. 1. The reasonable hourly rate The first step in the computation of the lodestar is determining the reasonable hourly rate. “A reasonable hourly rate is the prevailing market rate in the relevant legal community for similar services by lawyers of reasonably comparable skills, experience, and reputation.” Norman, 836 F.2d at 1299 (citing Blum v. Stenson, 465 U.S. 886, 895-96 n. 11, 104 S.Ct. 1541, 1547-48 n. 11, 79 L.Ed.2d 891 (1984)). The party seeking attorney’s fees bears the burden of producing “satisfactory evidence that the requested rate is in line with prevailing market rates.” Id. By “satisfactory evidence,” we mean “more than the affidavit of the attorney performing the work.” Id. Ray requested an hourly rate of $125. In support of that rate, he presented the district court with three affidavits, all executed by attorneys in the Dade County area, all testifying that an hourly rate" }, { "docid": "8457971", "title": "", "text": "magistrate judge). Plaintiffs failure to present sufficient evidence on four of the five Lanham Act elements, coupled with evidence of bad faith and improper motive, support the district court’s conclusion that this case was an exceptional case justifying an award of attorney’s fees. We cannot say that the district court abused its discretion in awarding fees. B. Plaintiff also challenges, on a variety of grounds, the fee amounts awarded to Defendants. After review of the magistrate judge and district judge’s opinions as well as our own review of the record, we conclude that the district court properly applied the lodestar approach articulated in Norman v. Hous. Auth. of the City of Montgomery, 836 F.2d 1292 (11th Cir.1988), to determine the fee award under the Lanham Act. In many instances, the court reduced the amount requested for certain kinds of work or for certain costs. The final determination of the fee award was no abuse of discretion. We consider only one of Plaintiffs arguments as worthy of discussion: whether the district court erred in awarding fees based on an hourly rate that exceeded the hourly rate as set in a contract between the Morgan Defendants and their attorney. The Morgan Defendants contracted with their attorneys for a fee of $160 per hour, which was below the “historical rate” (i.e. the maximum hourly rate requested from a new client). The magistrate judge considered the fee agreement rate but concluded that the “historical rates more accurately reflect the prevailing market rate in this legal community for similar services by lawyers of reasonably comparable skills, experience, and reputation.” The lodestar approach requires the judge to determine a reasonable hourly rate. And the agreed-upon billing rate is a strong indication of a reasonable rate. But the agreed-upon fee rate does not necessarily act as a cap or ceiling in determining the reasonable hourly rate. Instead, as the magistrate judge correctly noted, an agreed-upon rate is relevant evidence to determine the fee rate, but it is not necessarily determinative. See Crescent Publ’g Group, Inc. v. Playboy Enter., Inc., 246 F.3d 142, 151 (2d Cir.2001); Getty Petroleum" }, { "docid": "9804985", "title": "", "text": "the NAACP was a prevailing party. From May 1, 1980 to July 1, 1984, Atkins was General Counsel for the NAACP. He received a salary for his work on this case during that time. Atkins argues that not only is he entitled to the salary paid him as General Counsel, but also to an award of attorneys’ fees for that same work. We agree with the Special Master that “such a windfall would be patently inequitable and ... in violation of public policy.” (R3:4663-8) We are unpersuaded by Atkins’ argument that the fee award in this case violates the ethical prohibition on fee-splitting, see Model Rules of Professional Conduct, Rule 5.4(a) (1987), because the NAACP is not a law firm. Atkins himself is not splitting his fees with non-attorneys — the court is awarding fees to the prevailing parties as authorized by federal statute. The district court did not err in awarding attorneys’ fees to the NAACP. Hourly Rate Lastly, Atkins contends that the Special Master and district court erred by using an hourly rate of $125 in the calculation of attorneys’ fees for his services. Atkins argues that as $200 per hour is the fee he customarily charges, and has received in other similar cases, he is entitled to receive that in this case. The starting point for determining attorney’s fees is to multiply hours reasonably expended by a reasonable hourly rate to arrive at a lodestar figure. Hensley v. Eckerhart, 461 U.S. 424, 434, 103 S.Ct. 1933, 1939, 76 L.Ed.2d 40 (1983); Norman v. Housing Authority, 836 F.2d 1292 (11th Cir.1988). “The hourly rate must be determined with reference to prevailing market rates in the relevant community for ‘lawyers of reasonably comparable skill experience, and reputation.’ ” Davis v. Locke, 936 F.2d 1208 (11th Cir.1991) (quoting Blum v. Stenson, 465 U.S. 886, 895-96 n. 11, 104 S.Ct. 1541, 1547, 79 L.Ed.2d 891 (1984)). The prevailing party bears the burden of justifying the rate requested. Id. at 1215; Norman, 836 F.2d at 1299. Although an attorneys’ fees award is reviewed for abuse of discretion, the determination of what constitutes" }, { "docid": "9804986", "title": "", "text": "of $125 in the calculation of attorneys’ fees for his services. Atkins argues that as $200 per hour is the fee he customarily charges, and has received in other similar cases, he is entitled to receive that in this case. The starting point for determining attorney’s fees is to multiply hours reasonably expended by a reasonable hourly rate to arrive at a lodestar figure. Hensley v. Eckerhart, 461 U.S. 424, 434, 103 S.Ct. 1933, 1939, 76 L.Ed.2d 40 (1983); Norman v. Housing Authority, 836 F.2d 1292 (11th Cir.1988). “The hourly rate must be determined with reference to prevailing market rates in the relevant community for ‘lawyers of reasonably comparable skill experience, and reputation.’ ” Davis v. Locke, 936 F.2d 1208 (11th Cir.1991) (quoting Blum v. Stenson, 465 U.S. 886, 895-96 n. 11, 104 S.Ct. 1541, 1547, 79 L.Ed.2d 891 (1984)). The prevailing party bears the burden of justifying the rate requested. Id. at 1215; Norman, 836 F.2d at 1299. Although an attorneys’ fees award is reviewed for abuse of discretion, the determination of what constitutes a reasonable hourly rate is a finding of fact subsidiary to the total award and is therefore reviewed under the clearly erroneous standard. Martin v. University of South Ala., 911 F.2d 604, 609 (11th Cir.1990) (citing Islamic Center of Miss., Inc. v. City of Starkville, 876 F.2d 465, 468 (5th Cir.1989)). In this case, Atkins requested $200 per hour, but the defendant, the Secretary of the Air Force, contended that $75 per hour would be appropriate. The Special Master made a lengthy and detailed report and recommendation on attorneys’ fees, which was adopted by the district court. In the discussion of what hourly rate should be applied to Atkins, the Special Master considered Atkins’ “work product, preparation, and general ability.” The Special Master also took into account that Atkins had received $200 per hour in two other cases “with the relevant market being the national market.” However, the Special Master concluded that “the customary fee in the locality should be considered, as Mr. Atkins brought forward no persuasive evidence that Plaintiffs were unable to retain" }, { "docid": "6325156", "title": "", "text": "130 S.Ct. 1662, 1673, 176 L.Ed.2d 494 (2010). A district court’s order on attorney’s fees “must articulate the decisions it made, give principled reasons for those decisions, and show its calculations.” Loranger, 10 F.3d at 781 (quoting Norman, 836 F.2d at 1304); see also NAACP v. City of Evergreen, 812 F.2d 1332, 1335 (11th Cir.1987) (“A prerequisite for our review of an attorney’s fee award is that the district court’s opinion must have explained the reasons for the award with sufficient clarity to enable an appellate court to intelligently review the award.”). The undersigned therefore must first determine the reasonable hourly rate and then determine the reasonable number of compensable hours. See Loranger, 10 F.3d at 781. a. Reasonable Hourly Rate The reasonable hourly rate “is the prevailing market rate in the relevant legal community for similar services by lawyers of reasonably comparable skills, experience, and reputation.” Loranger, 10 F.3d at 781 (quoting Norman, 836 F.2d at 1299). The party seeking attorney’s fees has the burden of providing “satisfactory evidence” that her rate “is in line with prevailing market rates.” The amount that an attorney charges fee-paying clients is “powerful, and perhaps the best, evidence of his market rate; that is most likely to be what he is paid as ‘determined by supply and demand.’ ” Dillard v. City of Greensboro, 213 F.3d 1347, 1354-55 (11th Cir.2000). But see Loranger, 10 F.3d at 781 (“By ‘satisfactory evidence,’ we mean ‘more than the affidavit of the attorney performing the work.’ ”) (quoting Norman, 836 F.2d at 1299). A court may consider, however, its own knowledge and experience concerning reasonable and proper fees. Loranger, 10 F.3d at 781. The undersigned concludes that the hourly rate of $325 for Feagle is reasonable. In the default judgment motion, Plaintiff points to four sources as evidence of the reasonableness of Feagle’s hourly rate. First, Plaintiff cites to Feagle’s experience and awards in other FDCPA cases. [Doc. 7 at 6-7]. Second, Plaintiff asserts that attorney James Hunt has opined that the requested hourly rate is reasonable. [Id. at 7]. Third, she notes that the hourly rate" }, { "docid": "5082077", "title": "", "text": "as his lawyers Fink and Johnson. Judge Jordan referred to the undersigned the responsibility of reviewing the record evidence presented and determining the amount of attorney’s fees and costs that should be awarded. II. ANALYSIS A. Calculation of Reasonable Attorneys’ Fees Before addressing the apportionment of the fees awarded by Judge Jordan’s Order as between the Plaintiff individually and his lawyers Fink and Johnson, we will first turn to the question of the maximum extent of reasonable attorneys’ fees that Defendant could be awarded under the findings set forth in Judge Jordan’s Order of January 5, 2007. In awarding fees, “Courts are not authorized to be generous with the money of others, and it is as much the duty of courts to see that excessive fees and expenses are not awarded as it is to see that an adequate amount is awarded.” ACLU of Georgia v. Barnes, 168 F.3d 423, 428 (11th Cir.1999). The Court has ultimate discretion to determine, assuming there is legal entitlement to fees, whether a party to a case has demonstrated that a request for fees is reasonable and compensable. E.g., Cullens v. Georgia Dep’t. of Transp., 29 F.3d 1489, 1492-93 (11th Cir.1994). Any fees awarded must be reasonable and fall within the guidelines the Eleventh Circuit has promulgated. Norman v. Housing Auth. of Montgomery, 836 F.2d 1292, 1299-1302 (11th Cir.1988). Consequently, it is within a court’s discretion to adjust the fees to an amount it deems proper in accordance with those parameters. Columbus Mills, Inc. v. Freeland, 918 F.2d 1575, 1580 (11th Cir.1990). The Eleventh Circuit has adopted the lodestar method for determining reasonable attorneys’ fees. The lodestar method consists of determining the reasonable hourly rate and multiplying that number by the number of hours reasonably expended by counsel. Loranger v. Stierheim, 10 F.3d 776, 781 (11th Cir.1994); Norman, 836 F.2d at 1299. i. Reasonable Hourly Rates When calculating the lodestar amount, the Court first determines the reasonable hourly rate. This Circuit defines the reasonable hourly rate to be the “prevailing market rate in the relevant legal community for similar services by lawyers of reasonably" }, { "docid": "23621743", "title": "", "text": "Appellant challenges the magistrate judge’s reduction in his submitted hourly rate, number of hours, and costs. The original § 1988 petition requested $132,695 in fees and $36,094.08 in costs. After an evidentiary hearing, the magistrate reduced the regular hourly rate from $250 to $200, the travel hourly rate from $150 to $100, the number of regular hours spent on the litigation from 473 to 350, and the number of travel hours from 96.30 to 70. The reductions rendered a lodestar attorney fee award of $77,000. After examining the cost statement, the magistrate judge reduced the cost award from the requested $36,094.08 to $25,000. We review each reduction in turn. As the Supreme Court has recognized, “determining an appropriate ‘market rate’ for the services of a lawyer is inherently difficult.” Blum v. Stenson, 465 U.S. 886, 895 n. 11, 104 S.Ct. 1541, 79 L.Ed.2d 891 (1984). “In seeking some basis for a standard, courts properly have required prevailing attorneys to justify the reasonableness of the requested rate or rates.” Id. at 896 n. 11, 104 S.Ct. 1541. The magistrate judge conducted an evidentiary hearing and considered Appellant’s justifications for the requested rates, relying on the legal framework established in Norman v. Hous. Auth. of Montgomery, 836 F.2d 1292, 1299-1301 (11th Cir.1988). After considering the prevailing rates in the market and the skill and reputation of Appellant’s counsel, the magistrate judge recommended lower hourly rates than were requested. See Record, Vol. 8, Doc. 295, at 13. We do not find legal error in the magistrate judge’s application of Norman, and Appellant’s arguments fail to articulate anything more than a factual challenge. Reviewing the facts, we note that Appellant’s expert witness suggested that a reasonable fee would range from $200-$350 per hour. Although the hourly rates awarded are apparently at the bottom end of the reasonable scale, they are, nonetheless, within that range. “A district court’s determination of a reasonable fee will not be upset absent an abuse of discretion.” Popham, 820 F.2d at 1581. We have reviewed the record carefully and do not find an abuse of discretion in the determination of" }, { "docid": "19823046", "title": "", "text": "setting an attorney’s fee is to determine the lodestar figure: the number of hours -reasonably expended on the litigation multiplied by a reasonable hourly rate. Hensley v. Eckerhart, 461 U.S. 424, 438, 103 S.Ct. 1933, 1939, - 76 L.Ed.2d 40 (1983); Norman v. Housing Authority of City of Montgomery, 836 F.2d 1292, 1299 (11th Cir.1988); Bowen v. Southtrust Bank of Alabama, 760 F.Supp. 889, 896 (M.D.Ala. 1991). In making this determination, the district court is guided by the 12 factors identified in Johnson v. Georgia Highway Express, 488 F.2d 714 (5th Cir.1974). These factors are: (1) the time and labor required; (2) the novelty and difficulty of the questions; (3) the skill required to perform, the legal services properly; (4) the preclusion of other employment by the attorney due to acceptance of the case; (5) the customary fee in the community; (6) whether the fee is fixed or contingent; (7) time limitations imposed by the client or circumstances; (8) the amount involved and the results obtained; (9) the experience, reputation, and ability of the attorney; (10) the “undesirability” of the case; (11) the nature and length of any professional relationship with the client; and (12) awards in similar cases. Id. at 717-19. The fee applicant bears the burden of “establishing entitlement and documenting the appropriate hours and hourly rates.” Norman, 836 F.2d at 1303. In circumstances where the court is faced with an inadequate fee application, the law in this circuit is well established that: [t]he court, either trial or appellate, is itself an expert on the question and may consider its own knowledge and experience concerning reasonable and proper fees and may form an independent judgment either with or without the aid of witnesses as to value. Id. Accordingly, the district court may make the award on its own experience when the time or fees claimed seemed expanded or there is a lack of documentation or testimonial support. Id. The district court’s order must articulate the decisions it made, give principled reasons and show calculations. Id. (citations omitted). “If the court disallows hours, it must explain which hours are" }, { "docid": "22847280", "title": "", "text": "Loranger’s motion for recusal. Loranger attempted to appeal. We declined to review the interlocutory order until final judgment. Thereafter, the district court held a hearing on Ray’s request for attorney’s fees and costs. This time, the district court awarded Ray fees in the amount of $50,400, finding only 800 hours of the 2907 hours claimed to be allowable hours devoted to the federal litigation. In addition, the district court concluded that only 560 of those 800 hours were compensable. The district court found that a reasonable hourly rate was $75, and that in this case an upward adjustment to $90 was appropriate. Ray appeals from the district court’s award, as well as its denial of his motion for recusal. We affirm the district court’s order denying Loranger’s motion for recusal but vacate the district court’s fee order and remand for further consideration. II. ISSUES ON APPEAL In this opinion we address the following issues: (1) Whether the district court abused its discretion in denying Ray’s motion for re-cusal. (2) Whether the district court erred in fashioning Ray’s fee award. III. STANDARD OF REVIEW We review a district court’s denial of a recusal motion for abuse of discretion. Jaffree v. Wallace, 837 F.2d 1461, 1465 (11th Cir.1988). Similarly, a district court’s order on attorney’s fees is reviewed for abuse of discretion. Popham v. City of Kennesaw, 820 F.2d 1570, 1581 (11th Cir.1987). Hence, a district court’s order on attorney’s fees must allow for meaningful review. See Norman v. Housing Auth., 836 F.2d 1292, 1304 (11th Cir.1988). IV. CONTENTION OF THE PARTIES Ray’s arguments are prolix. In short, Ray contends that the district court erred in fashioning his award by (1) using an hourly rate of $90, (2) inadequately explaining the reduction in claimed hours, (3) failing to enhance the award as requested and (4) failing to award all the costs claimed. In addition, Ray argues that the district judge erred by failing to recuse himself from this case per 28 U.S.C.A. § 455(a). Ray contends that (1) the two year delay between the motion for attor ney’s fees and the initial" }, { "docid": "8726328", "title": "", "text": "case by Kim’s attorneys. Specifically, he argues (1) time spent on a motion for summary judgment duplicated time spent on pretrial preparation, trial and posttrial briefing; and (2) because Kim was represented by more than one attorney, it is “highly probable” that the hours claimed represented duplicative efforts. B. DISCUSSION The determination of the amount of a fee award is reviewed for abuse of discretion. Chalmers v. City of Los Angeles, 796 F.2d 1205, 1210 (9th Cir.1986), amended, 808 F.2d 1373 (9th Cir.1987). In Chalmers, we discussed the proper procedure for computing the amount of an attorney fee award, stating: The initial determination of reasonable attorney’s fees is calculated by multiplying the number of hours reasonably expended ... by a reasonable hourly rate.... In determining reasonable hours, counsel bears the burden of submitting detailed time records justifying the hours claimed to have been expended.... ... Next, the district court must determine a reasonable hourly rate considering the experience, skill, and reputation of the attorney requesting fees.... What remains important is that the district court articulate with sufficient clarity the manner in which it makes its determination of a reasonable hourly rate and the number of hours which should reasonably be compensated. 796 F.2d at 1210-11 (citations omitted). Here, the district court devoted much of its opinion to determining whether the time expended by Kim’s attorneys was reasonable. After setting forth the parties’ respective arguments, Judge Panner specifically found that (1) “the hours spent on the summary judgment motion were reasonable”; (2) “plaintiff spent a reasonable amount of time on pretrial preparation and on the trial”; and (3) “[g]iven the complexity of the facts and the law, the hours spent on posttrial briefs were reasonable”. Because “[t]he district court had ‘the benefit of the adversary process’ and was able to develop ‘a sense of the extent to which the claim for services was reasonable,’ ” Keith v. Volpe, 833 F.2d 850, 859 (9th Cir.1987), “ ‘the district court [was] in the best position to determine in the first instance the number of hours reasonably expended.’ ” Id. (quoting Chalmers, 796 F.2d" }, { "docid": "22959404", "title": "", "text": "factual allegations advanced in support thereof when resolving a motion for sanctions. The district court certainly did not have to consider the claim in resolving the motions to dismiss. However, in finding that the thus amended claim was without evidentia-ry support simply because it was not advanced until the dismissal hearing (and without considering the factual allegations advanced in support of the claim at such hearing), the district court abused its discretion. We conclude that this claim had factual support. The claim fails because we reject Oxford’s legal argument as to a registrant's duty to disclose the prescription data under Item 303(a)(3)(ii). This argument, though ultimately rejected, was not frivolous and was adequately supported by the pleaded facts concerning the data and its predictive value. As to plaintiffs’ other claims, we cannot say that the district court’s findings as to their lack of evidentiary support represented an abuse of discretion. Therefore, the district court’s finding that plaintiffs and their counsel violated Rule 11(b)(3) in advancing these other claims is affirmed. As to the award itself, plaintiffs complain that: 1) the total number of hours billed by the defendants-1900-was not reasonable considering the claims were dismissed before any discovery took place; 2) some of the defendants’ billing records are redacted, vague and do not specify exactly what work the attorney was performing; and 3) the defendants failed to provide hourly rates for a significant portion of the time billed, instead submitting a chart of their average hourly rates. “[T]he starting point in any determination for an objective estimate of the value of a lawyer’s services is to multiply hours reasonably expended by a reasonable hourly rate.” Norman v. Housing Authority of the City of Montgomery, 836 F.2d 1292, 1299 (11th Cir.1988). Our precedent places the burden of documenting the appropriate hours and hourly rates on the fee applicant. Id. Oxford does not challenge the reasonableness of the hourly rates submitted by the defendants. As to the number of hours submitted, “fee counsel should have maintained records to show the time spent on the different claims, and the general subject matter of" }, { "docid": "6108039", "title": "", "text": "provided a thoughtful response, and the City had an opportunity to further examine Chief Streicher on redirect. The district court did not apply an erroneous legal standard or misapply the law, and the decision to deny the City’s motion for a new trial was not inconsistent with substantial justice. Therefore, the City’s argument is rejected. F. The district court did not abuse its discretion in its award of attorneys fees. The City contends that the trial court granted Barnes an excessive award of attorneys fees. We review a district court’s determination regarding the award of attorneys fees for abuse of discretion. Paschal v. Flagstar Bank, 297 F.3d 431, 433 (6th Cir.2002). A district court abuses its discretion when it relies on clearly erroneous findings of fact, uses an incorrect legal standard, or applies the law incorrectly. Id. at 434. The City argues on appeal that the district court abused its discretion for three reasons: (1) By awarding attorneys fees at plaintiffs attorneys’ current billing rates; (2) By not reducing plaintiffs total attorneys fees for time expended on non-prevailing causes of action; (3) By applying a multiplier of 1.75 to plaintiffs total award of attorneys fees. We respectfully disagree. First, in calculating the amount of attorneys fees in this case, the district court properly applied the “lodestar” method and multiplied the number of hours reasonably expended on the case by a reasonable hourly rate. See West v. Hess Envt’l Servs., Inc., 111 F.3d 132 (6th Cir.1997)(citing Hensley v. Eckerhart, 461 U.S. 424, 433, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983)). The district court used the “current” market rate in calculating plaintiffs attorneys’ reasonable hourly rate because the litigation had been ongoing for nearly six years. In Missouri v. Jenkins, 491 U.S. 274, 109 S.Ct. 2463, 105 L.Ed.2d 229 (1989), the Court noted that compensation is often received several years after services were rendered in complex civil rights litigation and held that an adjustment for delay in payment by the application of current, rather than “historical,” hourly rates is within the contemplation of the attorneys fees statute. Second, successful and unsuccessful claims" }, { "docid": "6325155", "title": "", "text": "fees and costs. 1. Attorneys’ Fees “The starting point in fashioning an award of attorney’s fees is to multiply the number of hours reasonably expended by a reasonable hourly rate.” Loranger v. Stierheim, 10 F.3d 776, 781 (11th Cir. 1994); Hepsen v. J.C. Christensen and Assocs., Inc., No. 10-12231, 2010 WL 3329836 (11th Cir. Aug.25, 2010) (calculating attorneys’ fees under FDCPA using lodestar); Moton v. Nathan & Nathan, P. C., 297 Fed.Appx. 930, 931-32 (11th Cir. 2008) (holding that lodestar analysis must be used to calculate attorney’s fees under the FDCPA). The product of the reasonable hourly rate and the reasonable hours expended is known as the lodestar calculation. See Davis v. Locke, 936 F.2d. 1208, 1215 (11th Cir.1991). Once the lodestar is calculated, this lodestar amount may be adjusted. Norman v. Housing Auth. of City of Montgomery, 836 F.2d 1292, 1302 (11th Cir.1988). However, such an adjustment is “rare” because “the lodestar method yields a fee that is presumptively sufficient to achieve this objective.” Perdue v. Kenny A. ex rel. Winn, — U.S. —, 130 S.Ct. 1662, 1673, 176 L.Ed.2d 494 (2010). A district court’s order on attorney’s fees “must articulate the decisions it made, give principled reasons for those decisions, and show its calculations.” Loranger, 10 F.3d at 781 (quoting Norman, 836 F.2d at 1304); see also NAACP v. City of Evergreen, 812 F.2d 1332, 1335 (11th Cir.1987) (“A prerequisite for our review of an attorney’s fee award is that the district court’s opinion must have explained the reasons for the award with sufficient clarity to enable an appellate court to intelligently review the award.”). The undersigned therefore must first determine the reasonable hourly rate and then determine the reasonable number of compensable hours. See Loranger, 10 F.3d at 781. a. Reasonable Hourly Rate The reasonable hourly rate “is the prevailing market rate in the relevant legal community for similar services by lawyers of reasonably comparable skills, experience, and reputation.” Loranger, 10 F.3d at 781 (quoting Norman, 836 F.2d at 1299). The party seeking attorney’s fees has the burden of providing “satisfactory evidence” that her rate “is in" }, { "docid": "20844592", "title": "", "text": "Miller’s motion and the defendants’ response, but also a reply and sur-reply filed without leave of comb. Nothing more was required by Rule 54. C. Miller contends that the district court’s award of $35,875 in attorney’s fees was unreasonable. We review the district court’s award of attorney’s fees for abuse of discretion. See Hanig v. Lee, 415 F.3d 822, 825 (8th Cir.2005). “The most useful starting point for determining the amount of a reasonable fee is the number of hours reasonably expended on the litigation multiplied by a reasonable hourly rate,” Hensley v. Eckerhart, 461 U.S. 424, 433, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983), although a district court has discretion to adjust the fee to account for other considerations, such as the nature of the results obtained. Id. at 434, 103 S.Ct. 1933. “[T]he fee applicant bears the burden of establishing entitlement to an award and documenting the appropriate hours expended and hourly rates.” Id. at 437, 103 S.Ct. 1933. 1. Miller challenges the district court’s decision that $250 per hour, not the requested $300 per hour, was a reasonable hourly rate. “A reasonable hourly rate is usually the ordinary rate for similar work in the community where the case has been litigated.” Emery v. Hunt, 272 F.3d 1042, 1048 (8th Cir.2001). “When determining reasonable hourly rates, district courts may rely on their own experience and knowledge of prevailing market rates.” Hanig, 415 F.3d at 825. Based on its experience, the court identified the prevailing market rate in the community as $250 per hour. Miller argues that the district court abused its discretion by relying on the prevailing market rate for civil rights litigation in the area of Fort Smith, Arkansas, because it should have applied Capron’s standard rate in Tulsa, Oklahoma, of $300 per hour. Miller cites Casey v. City of Cabool, Missouri, 12 F.3d 799 (8th Cir. 1993), in which this court reasoned that “the opportunity cost of the lawyer’s time provides the starting point for determining a presumptively correct hourly rate,” but continued that “[o]ther considerations, including the complexity of the litigation and the relevant market" }, { "docid": "22103349", "title": "", "text": "excessive; and that the district court abused its discretion in failing to specify how it arrived at the amount of attorney’s fees awarded. 1. Standard of Review The district court’s award of fees, as well as the amount of fees awarded, is subject to an abuse of discretion standard of review on appeal. Cinevision Corp. v. City of Burbank, 745 F.2d 560, 581 (9th Cir.1984), cert. denied, — U.S. —, 105 S.Ct. 2115, 85 L.Ed.2d 480 (1985); Kerr, 526 F.2d at 69. “This standard applies ‘not only to the basic fee but also to multipliers.’ ” Hall v. Bolger, 768 F.2d 1148, 1150 (9th Cir.1985) (quoting Harmon v. San Diego County, 736 F.2d 1329, 1331 (9th Cir.1984)). 2. Merits In an effort to determine whether the district court abused its discretion in this case, and in an attempt to provide district courts with guidance for their future consideration of attorney’s fees matters, we begin our analysis with the two recent Supreme Court decisions in this area. Blum v. Stenson, 465 U.S. 886, 104 S.Ct. 1541, 79 L.Ed.2d 891 (1984); Hensley v. Eckerhart, 461 U.S. 424, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983). Title 42 U.S.C. § 1988 authorizes a district court to award reasonable attorney’s fees to a prevailing party in a civil rights action. A prevailing party should ordinarily recover attorney’s fees “unless special circumstances would render such an award unjust.” Hensley, 461 U.S. at 429, 103 S.Ct. at 1937. The initial determination of reasonable attorney’s fees is calculated by multiplying the number of hours reasonably expended on litigation by a reasonable hourly rate. Id. at 433, 103 S.Ct. at 1939. In determining reasonable hours, counsel bears the burden of submitting detailed time records justifying the hours claimed to have been expended. Id. Those hours may be reduced by the court where documentation of the hours is inadequate; if the case was overstaffed and hours are duplicated; if the hours expended are deemed excessive or otherwise unnecessary. Id. at 433-34, 103 S.Ct. at 1939-40. Next, the district court must determine a reasonable hourly rate considering the experience, skill, and" }, { "docid": "5942290", "title": "", "text": "representative to testify at the evidentiary hearing. We review an award of attorney’s fees for an abuse of discretion. See American Civil Liberties Union of Georgia v. Barnes, 168 F.3d 423, 427 (11th Cir.1999). “An abuse of discretion occurs if the judge fails to apply the proper legal standard or to follow proper procedures in making the determination or bases an award [or a denial] upon findings of fact that are clearly erroneous.” United States v. Gilbert, 198 F.3d 1293, 1298 (11th Cir.1999). On these facts, we believe that discretion was abused. We have previously said that a fee applicant bears the burden of establishing entitlement and of documenting the appropriate hours and hourly rates. See Norman v. Housing Authority of the City of Montgomery, 836 F.2d 1292, 1303 (11th Cir.1988). We have also noted that courts are often faced with fee applications that are not well-prepared but which are sometimes supported by opinions on reasonableness. See id. In those circumstances, the court “is itself an expert on the question and may consider its own knowledge and experience concerning reasonable and proper fees and may form an independent judgment either with or without the aid of witnesses as to value.” Id. Therefore, where documentation or testimonial support is lacking, the court may make the award on its own experience. See id. Moreover, we have said that a court’s order on attorney’s fees must allow meaningful appellate review. The trial court should articulate and give principled reasons for its decisions and show some calculations. If the court disallows hours, it must explain which hours are disallowed and show why an award of those hours would be improper. Id. at 1304. In this case, Express submitted billing records in support of its fee application for both its local and its out-of-state counsel. Express’s expert had reviewed the billing records of both firms, had interviewed both billing partners, and testified about the reasonableness of the fee requests. Express’s expert was cross-examined by Coastal on those matters. And, Coastal’s expert had reviewed the billing records of both firms and testified on the reasonableness of" } ]

[ { "docid": "12482568", "title": "", "text": "and each defendant denied having given any statement or confession to the officers. The trial was before the court without a jury. The prosecution took counsel by surprise when Espin’s confession was offered and admitted in evidence. Counsel was permitted to examine the confession but, failing to perceive the indirect implication of Sawyer, he continued to represent both defendants. In view of the context in which this statement was made, Espin having continually referred to his partner in the robbery as the “other party” or by a similar descriptive term, it is inconceivable to this court that he could have been referring to anyone other than Sawyer when he said that the “other party” was put into the wagon with him. As already mentioned, we know from the testimony of Portera, the arresting officer, that it was Sawyer who was placed in the police wagon with Espin. We think it clear that Espin’s statement of confession thus indirectly identified and incriminated Sawyer as his co-felon. An obvious divergence of interest exists between a defendant who denies his guilt and a codefendant who not only confesses his own complicity but also accuses the other of participation in the crime. The conflict is even more crucial in the instant case by reason of the fact that Espin’s confession attempts to cast most of the blame for the robbery onto the “other party.” In such a situation the parties are placed in adversary and combative positions. The interest of Sawyer would lie in discrediting Espin’s statement of confession, particularly that portion which incriminated Sawyer, while Espin would necessarily be concerned with pursuing his attempt to appear less culpable than the other participant, who is indirectly identified as Sawyer. We conclude that it would be utterly impossible for one attorney to effectively serve both of these conflicting interests. He would be rendered impotent to effectively assist one by the necessity of protecting the other. We realize that this conflict of interest between Sawyer and Espin may not have made its presence felt in their trial and conviction. As is apparent, the trial court did" } ]

[ { "docid": "9686880", "title": "", "text": "brother, who had been arrested also as a suspect in the same robbery and abduction. All three were advised that they had a right to remain silent and that anything they said could be used against them in court. A police detective then took Grover Robbs aside and talked with him. Within the presence and hearing of Miller and Lavone Robbs, Grover Robbs “admitted that he was with these two men when they pulled the robbery and abducted Mr. Johnson in his car, and he pointed to both men that they were with him.” (App. 57). Miller and Lavone Robbs “made no statement at that particular time, but before and after that they denied any part in the robbery.” (App. 61). The detective asked Grover Robbs “who had the gun,” but “he refused to name the person who actually had the gun.” (App. 58). All three were tried in the Hustings Court of the City of Richmond, Part II, before a judge sitting without a jury. Earl Johnson, the victim of the crimes, positively identified Miller and his code-fendants at the trial. His testimony was persuasive because of unusual opportunity both before and after the crime to observe them. Grover Robbs’ confession and Miller’s silence in response to it were admitted into evidence. Grover Robbs did not testify. The three were convicted of armed robbery, abduction, and unauthorized use of an automobile. Miller appealed his conviction to the Virginia Supreme Court of Appeals and has unsuccessfully exhausted state remedies. After careful consideration of the record, briefs, and arguments in this case, we conclude that with one exception the alleged grounds for relief are without merit and warrant little comment. Miller was not incompetently represented in violation of his Sixth Amendment right to adequate counsel. The transcript simply does not show that his attorney’s services were “so transparently inadequate as to make a farce of the trial.” Root v. Cunningham, 344 F.2d 1, 3 (4th Cir. 1965). Nor was Miller denied effective assistance of counsel because he and his codefendants were represented by a single attorney at their joint trial. Miller" }, { "docid": "2709883", "title": "", "text": "Valenzuela and his counsel could not expose Harris to full and effective cross-examination. Defendant relies upon Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1967), and Baker v. Wainwright, 422 F.2d 145 (5th Cir. 1970). Bruton established that the admission of a confession against a codefendant which implicates another defendant is reversible error when the codefendant does not take the stand so as to be subject to cross-examination. In Baker codefend-ants were represented by the same counsel. The State introduced a confession of one defendant implicating the other. The court found a self-evident conflict of interest between the codefendants because counsel could have voided the proceedings against the non-confessing defendant under the Bruton rationale if the confessing defendant had not taken the stand. We think both these cases are inappo-site to the present case. First, it requires a long stretch of the imagination to find that Harris’ statement to Webster was a confession. Additionally, it was Webster’s testimony regarding Valenzuela’s presence in the bar and not Harris’ statement which indirectly implicated Valenzuela. Had Harris not taken the stand we do not believe the proceedings against Valenzuela would be considered defective under the Bruton rationale as Harris’ statement was not in-culpatory as to Valenzuela. Second, should Harris’ statement be considered a confession implicating' Valenzuela, Nelson v. O’Neil, 402 U.S. 622, 91 S.Ct. 1723, 29 L.Ed.2d 222 (1971), requires a rejection of this argument. Harris took the witness stand and denied making the statement. In O'Neil the Supreme Court concluded that: [W]here a codefendant takes the stand in his own defense, denies making an alleged out-of-court statement implicating the defendant and proceeds to testify favorably to the defendant concerning the underlying facts, the defendant has been denied no rights protected by the Sixth and Fourteenth Amendments. Nelson v. O’Neil, supra at 629-30, 91 S.Ct. at 1727. In addition to the assertions of a conflict of interest which we have rejected, Valenzuela attacks the competence of his trial counsel. Defendant has a “heavy burden of proving unfairness resulting from alleged ineffective assistance of counsel.” Johnson v. United States," }, { "docid": "10022137", "title": "", "text": "of the inconsistent positions of himself and his codefendant, Garelli. The defendant maintained and still maintains his innocence. Garelli made incriminating confessions and later admitted his guilt when he pleaded guilty. Nevertheless, the severance of the codefendants’ trials and the complete absence of any hint of Garelli’s inculpatory statements during the defendant’s trial convince us that the possibility of a conflict of interests did not materialize into an actual conflict at trial. We find no evidence that any divided loyalties caused trial counsel to sacrifice the defendant’s interests for the sake of Garelli. This is simply not a case where the same counsel had to make a choice between arguing the codefendants’ conflicting theories of defense to the jury. Compare United States v. Carrigan, 543 F.2d 1053 (2d Cir. 1976) (codefendants in same trial). Nor is this a case where the defendant was unable to call a favorable witness or to effectively cross-examine a government witness because his attorney also represented that witness. Compare United States v. Pinc, 452 F.2d 507 (5th Cir. 1971). Moreover, the record shows that the defendant was not inhibited from testifying on his own behalf with the aid of counsel. Compare United States v. Gaines, 529 F.2d at 1045. An attorney’s joint representation of multiple defendants, however, may affect a criminal defendant adversely not only during the jury trial on the issue of guilt, but at any stage of a criminal proceeding. Holloway, 435 U.S. at 489-90, 98 S.Ct. 1173; Geer, Representation of Multiple Criminal Defendants: Conflicts of Interest and the Professional Responsibilities of the Defense Attorney, 62 Minn.L.Rev. 119, 125-35 (1978). The defendant does not complain, and we are unable to find any reasonable basis in the record for asserting, that his trial counsel’s participation in plea negotiations on behalf of Garelli was inconsistent with the attorney’s duty of loyalty to him. This case does not present, for example, a situation in which one codefendant agrees to provide evidence against the other in return for an advantageous plea bargain. The defendant does complain, however, that the joint representation was inconsistent with protection of his" }, { "docid": "22747064", "title": "", "text": "make an objection? “THE COURT: No, sir. Your counsel will take care of any objections. “MR. HALL: Your Honor, that is what I am trying to say. I can’t cross-examine them. “THE COURT: You proceed like I tell you to, Mr. Hall. You have no right to cross-examine your own witnesses anyhow.” Welch proceeded with his unguided direct testimony, denying any involvement in the crime and stating that he was at his home at the time it occurred. Campbell gave .similar testi mony when he took the stand. He also denied making any confession to the arresting officers. The jury rejected the versions of events presented by the three defendants and the alibi witness, and returned guilty verdicts on all counts. On appeal to the Arkansas Supreme Court, petitioners raised the claim that their representation by a single appointed attorney, over their objection, violated federal constitutional guarantees of effective assistance of counsel. In resolving this issue, the court relied on what it characterized as the majority rule: “[T]he record must show some material basis for an alleged conflict of interest, before reversible error occurs in single representation of co-defendants.” 260 Ark. 250, 256, 539 S. W. 2d 435, 439 (1977). Turning to the record in the case, the court observed that Hall had failed to outline to the trial court both the nature of the confidential information received from his clients and the manner in which knowledge of that information created conflicting loyalties. Because none of the petitioners had incriminated codefendants while testifying, the court concluded that the record demonstrated no actual conflict of interests or prejudice to the petitioners, and therefore affirmed. II More than 35 years ago, in Glasser v. United States, 315 U. S. 60 (1942), this Court held that by requiring an attorney to represent two codefendants whose interests were in conflict the District Court had denied one of the defendants his Sixth Amendment right to the effective assistance of counsel. In that case the Government tried five codefendants in a joint trial for conspiracy to defraud the United States. Two of the defendants, Glasser and" }, { "docid": "9686882", "title": "", "text": "does not show that his interests were significantly in conflict with the interests of Lavone and Grover Robbs. His case is distinguishable from Sawyer v. Brough, 358 F.2d 70 (4th Cir. 1966), in which the court held that one attorney could not represent co-defendants at a joint trial where one had confessed implicating the other. In Sawyer, the confessing defendant attempted to exculpate himself by shifting most of the blame to his codefendant. This created the conflict of interests in Sawyer: the defendant implicated by the confession would have wanted it excluded or attacked, but the defendant partially absolved by the confession would have wanted it admitted and defended. No such conflict of interests existed in the present case. All the defendants in the present case plead “not guilty.” The confession of Grover Robbs contained nothing exculpatory of him or even mitigating the offense. He did not even attempt to shift blame to Lavone Robbs or Miller by asserting that either had the gun. All three defendants had an identical interest with respect to the confession — it would have been in the interest of all to have the confession excluded or attacked. Miller's claim that Grover Robbs’ confession implicating him was inadmissible is not without merit. The trial judge did not rely on the content of Grover Robbs’ confession but rather on Miller’s silence in response to the accusatory material within it. In summing up the evidence upon which he based his decision, the judge said, Now, you have another thing, two of the men have denied it, before and since, when they were pointed out by their third codefendant. At that time they said nothing, when he accused them of being with him. (App. 78). The rule regarding tacit or adoptive admissions followed by the Virginia courts has been expressed thus by the Virginia Supreme Court of Appeals in Dykeman v. Commonwealth, 201 Va. 807, 811-812, 113 S.E.2d 867, 871 (1960): The general rule is that when a statement accusing one of the commission of an offense is made in his presence and hearing and is not denied," }, { "docid": "10022138", "title": "", "text": "the record shows that the defendant was not inhibited from testifying on his own behalf with the aid of counsel. Compare United States v. Gaines, 529 F.2d at 1045. An attorney’s joint representation of multiple defendants, however, may affect a criminal defendant adversely not only during the jury trial on the issue of guilt, but at any stage of a criminal proceeding. Holloway, 435 U.S. at 489-90, 98 S.Ct. 1173; Geer, Representation of Multiple Criminal Defendants: Conflicts of Interest and the Professional Responsibilities of the Defense Attorney, 62 Minn.L.Rev. 119, 125-35 (1978). The defendant does not complain, and we are unable to find any reasonable basis in the record for asserting, that his trial counsel’s participation in plea negotiations on behalf of Garelli was inconsistent with the attorney’s duty of loyalty to him. This case does not present, for example, a situation in which one codefendant agrees to provide evidence against the other in return for an advantageous plea bargain. The defendant does complain, however, that the joint representation was inconsistent with protection of his interests during sentencing. He maintains that since Garelli had confessed, trial counsel could have argued this during the sentencing hearing before the trial court. Because the defendant, however, had consistently maintained his innocence, counsel was unable to argue repentance as a factor in mitigation of his crime. The contrast between the positions of the two defendants, he argues, made it impossible for their attorney to adequately represent both. Once again, however, we are unable to conclude that defense counsel’s efforts were inhibited or impaired by the dual representation. The sentencing hearings for Garelli and Mavrick were held some two weeks apart. The transcripts of those hearings contain no indication that defense counsel attempted to play the interests of one client off against those of the other. Nor does the record reveal that defense counsel withheld from the court any factors in mitigation which would have benefited Mavrick, but prejudiced Garelli. The defendant makes no such allegation. The defense counsel argued for leniency in both cases. Although the trial court did compare the two defendants and" }, { "docid": "6790799", "title": "", "text": "I. And since there is no justification shown for relaxing the law of the case, we will follow the holding of Selsor I, noted above. Thus, prejudice is presumed with respect to Selsor because the state trial court failed to appoint separate counsel and, as we now hold in this opinion, the state judge also failed to make an adequate inquiry, despite the defendant’s timely objection to representation of both defendants by attorneys Corley and Hoffman. Moreover, our holding that conditional habeas relief must be granted in Selsor’s case need not depend on a presumed conflict of interest because here the record demonstrates an actual conflict that adversely affected the performance of Selsor’s counsel. In United States v. Bowie, 892 F.2d 1494, 1500 (10th Cir.1990), we said “Actual conflict” and “adverse effect” are not self-defining phrases, [citations omitted], but in the context of the instant case, we hold that defense counsel’s performance was adversely affected by an actual conflict of interest if a specific and seemingly valid or genuine alternative strategy or tactic was available to defense counsel, but it was inherently in conflict with his duties to others or to his own personal interests. Id. at 1500 (emphasis added). Under this standard, it is clear that here defense counsel’s performance was adversely affected by his duties to codefendant Dodson. The state asserts that there is no evidence in the record that one defendant had evidence that would exculpate himself and inculpate his co-defendant. Each defendant alone confessed, implicating himself. The confession of each would have been admissible even if separate trials were given and separate counsel was appointed.... There is nothing in the record to show that counsel would have acted any differently if he only represented one defendant other than possibly placing each defendant on the stand. However, the confessions of each would have still been admissible.... In light of the above authority, the Appellant has failed to show that an actual con flict existed and similarly the record fails to show that an actual conflict existed and the trial court properly did not appoint separate counsel. Appellee’s" }, { "docid": "4903141", "title": "", "text": "loyalty to the other four defendants prevented him from adequately safeguarding Truglio’s interests. There was a direct and substantial conflict that could have been avoided had Truglio enjoyed the services of separate counsel. Id. In the instant case, however, there was no such conflict. Notwithstanding petitioner’s conclusory and speculative allegations of what might have been, the record demonstrates no conflict between the interests of petitioner and Ms. Babstock that in fact operated to dilute the effectiveness of petitioner’s representation by counsel in the state courts. The Sawyer case is similarly distinguishable. There, as in Truglio, but unlike the instant case, the two defendants were tried jointly. 358 F.2d at 71. During the course of trial the state introduced a pretrial confession by Sawyer’s codefendant and alleged accomplice. The Fourth Circuit reviewed this confession and determined that it indirectly, though quite clearly in light of all the evidence, implicated Sawyer as the principal culprit in the robbery. Id. at 72-73. The court then noted that an “obvious divergence of interest exists between a defendant who denies his guilt [i. e., Sawyer] and a codefendant who not only confesses his own complicity but also accuses the other of participation in the crime.” Id. at 73. Because of this conflict between the respective interests of the two codefendants, the court asserted that it was “utterly impossible for one attorney to effectively serve both of these conflicting interests.” Id. This conflict was both real and substantial, unlike the asserted conflict in the instant case. One last point raised by petitioner on this issue must be addressed. Petitioner asserts that the possibility of one defendant’s entering plea negotiations with the prosecution raises the potential for a fatal conflict of interest. In support of this argument, petitioner cites the following language from the Supreme Court’s decision last spring in Holloway: [I]n a case of joint representation of conflicting interests the evil — it bears repeating — is in what the advocate finds himself compelled to refrain from doing, not only at trial but also as to possible pretrial plea negotiations and in the sentencing process. It" }, { "docid": "861377", "title": "", "text": "1718. The defendant does not have to demonstrate prejudice from the joint representation; but he must “show[] that his counsel actively represented conflicting interests.” Id. at 350, 100 S.Ct. at 1719. In this case, appellants seek an unprecedented application of the “actual conflict” rule. All of our previous cases granting relief on grounds of actual conflict have involved one or more of the following situations: (1) the conflict was brought to the trial court’s attention at the outset of the trial or at the time when the conflict first became apparent; (2) one defendant had evidence that would have exculpated himself but inculpated a codefendant; (3) the prosecution’s evidence offered defendant a theory under which he could prove his own innocence by proving his codefendant’s guilt. This case involves none of these situations. No hint of conflict was ever brought to the trial court’s attention. At the outset of the trial, both appellants joined in the united “it didn’t happen” strategy; neither argues that counsel had any reason to be lieve at the outset that the united strategy was not in his best interests, or even that counsel had any reason to believe at that time that a plausible alternative strategy was available. Nor does either claim that he could have offered any evidence, or that the government offered any evidence, in support of an alternative strategy. Instead, each argues that the prosecutor’s evidence against his codefendant was stronger than the evidence against himself. Faced with such evidence, each argues, his defense counsel should have adopted a strategy of “shifting the blame” to his codefendant and emphasizing the relative weakness of the case against himself. Each invokes our often-stated test from Foxworth v. Wainwright, 516 F.2d 1072 (5th Cir. 1972): “A conflict of interest is present whenever one defendant stands to gain significantly by counsel adducing probative evidence or advancing plausible arguments that are damaging to the cause of a codefendant whom counsel is also representing.” Id. at 1076, quoted in Turnquest v. Wainwright, 651 F.2d 331, 333 (5th Cir. 1981). Since joint counsel was not free to advance the" }, { "docid": "4903140", "title": "", "text": "that she was taking Valium during petitioner’s trial. In any event, the Court is satisfied that counsel’s decision not to call Ms. Babstock was not a product of any unconstitutional division of loyalty. On the contrary, the record abundantly supports the conclusion that petitioner received counsel’s best efforts. Petitioner has directed the Court’s attention to a number of cases, prominent among them being two decisions by the Fourth Circuit See United States v. Truglio, 493 F.2d 574 (4th Cir. 1974); and Sawyer v. Brough, 358 F.2d 70 (4th Cir. 1966). Although both of these cases resulted in reversals of convictions because of joint representations, both may be distinguished on their facts. Truglio involved a conspiracy trial of five defendants, all of whom were represented at their joint trial by one attorney. 493 F.2d at 576. Truglio’s conviction was set aside because the court found first, that the circumstances of his guilty plea were coercive, and second, that the coercion was a product of the joint representation by the lone defense counsel. Id. at 580. Counsel’s loyalty to the other four defendants prevented him from adequately safeguarding Truglio’s interests. There was a direct and substantial conflict that could have been avoided had Truglio enjoyed the services of separate counsel. Id. In the instant case, however, there was no such conflict. Notwithstanding petitioner’s conclusory and speculative allegations of what might have been, the record demonstrates no conflict between the interests of petitioner and Ms. Babstock that in fact operated to dilute the effectiveness of petitioner’s representation by counsel in the state courts. The Sawyer case is similarly distinguishable. There, as in Truglio, but unlike the instant case, the two defendants were tried jointly. 358 F.2d at 71. During the course of trial the state introduced a pretrial confession by Sawyer’s codefendant and alleged accomplice. The Fourth Circuit reviewed this confession and determined that it indirectly, though quite clearly in light of all the evidence, implicated Sawyer as the principal culprit in the robbery. Id. at 72-73. The court then noted that an “obvious divergence of interest exists between a defendant who denies" }, { "docid": "9686886", "title": "", "text": "on Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968), is misplaced. In that case the Supreme Court held that the introduction of a co-defendant’s confession that implicated the defendant violated the defendant’s Sixth Amendment right to confront witnesses against him because the codefend-ant refused to testify. The trial judge here relied on the confession not for the truth of its content but as a context for Miller’s silence. Miller would have gained nothing from cross-examining Grover Robbs about the confession because the truthfulness of the confession was irrelevant to the purpose for which it was admitted. Finally, Miller claims that he was deprived of his Fifth Amendment right to remain silent by the trial judge’s reliance on his silence in response to Grover Robbs’ confession. He bases his claim upon the following language from Miranda v. Arizona, 384 U. S. 436, 468 n. 37, 86 S.Ct. 1602, 1625, 16 L.Ed.2d 694 (1966): In accord with our decision today, it is impermissible to penalize an individual for exercising his Fifth Amendment privilege when he is under police custodial interrogation. The prosecution may not, therefore, use at trial the fact that he stood mute or claimed his privilege in the face of accusation. At the time of his silence, however, Miller was not under police interrogation. The attention of the police detective was focused upon Grover Robbs and not upon Miller. Miller’s silence was a reaction to the voluntary accusation by Grover Robbs and not to a question or accusation by the police detective directed to him. The Fifth Amendment bars confessions compelled by the government and not by circumstance. Miller’s claim, therefore, is without merit. But see United States ex rel. Smith v. Brierly, 384 F.2d 992 (3rd Cir. 1967); United States v. McKinney, 379 F.2d 259 (6th Cir. 1967); Ivey v. United States, 344 F.2d 770 (5th Cir. 1965). Although it was error under the Virginia law of evidence to receive Robbs’ confession as explanatory of Miller’s silence when accused, we think it was not error of constitutional magnitude, and we deem it harmless" }, { "docid": "12482571", "title": "", "text": "mere strength of the attorney’s testimony, dismiss as without merit Sawyer’s claim that the right of effective representation has been denied him. The salient fact remains that divergent interests did exist, and therefore an opportunity was presented for the impairment of Sawyer’s right to the unfettered assistance of counsel. It is not necessary that Sawyer delineate the precise manner in which he has been harmed by the conflict of interest; the possibility of harm is sufficient to render his conviction invalid. In Glasser v. United States, 315 U.S. 60, at pages 75-76, 62 S.Ct. 457, at page 467, 86 L.Ed. 680 (1942), the Court stated that: “To determine the precise degree of prejudice sustained by Glasser as a result of the court’s appointment of Stewart as counsel for Kretske is at once difficult and unnecessary. The right to have the assistance of counsel is too fundamental and absolute to allow courts to indulge in nice calculations as to the amount of prejudice arising from its denial.” ****** Had the conflict of interest between Sawyer and Espin been detected prior to or during their trial, the first prudent step which any lawyer single-mindedly devoted to Sawyer’s best interests would undoubtedly take would be to move for a severance. Had separate trials been held, the incriminating confession of Es-pin could not have been offered in evidence. Sawyer also would have been spared the possibly prejudicial effect, whether the trier of fact was judge or jury, of having as a codefendant one who has confessed his participation in the alleged crime. A conviction of Sawyer in a separate trial would by no means have been assured, even though the evidence against him, independent of the confession, was seemingly strong. Even though the trial court had denied a motion for severance, assuredly separate counsel for each defendant would have been provided when the conflict of interest became apparent. The fact that the trial court apparently failed to appreciate the possibility that Sawyer’s constitutional right was being infringed by the appointment of a single attorney to represent both defendants clearly has no bearing on the" }, { "docid": "9686883", "title": "", "text": "confession — it would have been in the interest of all to have the confession excluded or attacked. Miller's claim that Grover Robbs’ confession implicating him was inadmissible is not without merit. The trial judge did not rely on the content of Grover Robbs’ confession but rather on Miller’s silence in response to the accusatory material within it. In summing up the evidence upon which he based his decision, the judge said, Now, you have another thing, two of the men have denied it, before and since, when they were pointed out by their third codefendant. At that time they said nothing, when he accused them of being with him. (App. 78). The rule regarding tacit or adoptive admissions followed by the Virginia courts has been expressed thus by the Virginia Supreme Court of Appeals in Dykeman v. Commonwealth, 201 Va. 807, 811-812, 113 S.E.2d 867, 871 (1960): The general rule is that when a statement accusing one of the commission of an offense is made in his presence and hearing and is not denied, both the statement and the fact of his failure to deny are admissible in a criminal proceeding against him as evidence of his acquiescence in its truth. It is, based on the theory that the natural reaction of one accused of crime is to deny the accusation if it is unjust or untrue. The accusation and his silence thereunder to be admissible must, however, have been under such circumstances as would naturally call for a reply or denial and such as would afford a favorable opportunity for denial. The character of the incriminating statement made to the accused would render it inadmissible as hearsay except for the fact that the statement is not offered in evidence as proof of a fact asserted but as a predicate to the showing of the reaction of the accused thereto. In all instances caution must be exercised in receiving evidence of a statement made to the accused and his failure to deny it. The test is whether men similarly situated would have felt themselves called upon to deny the" }, { "docid": "6790800", "title": "", "text": "to defense counsel, but it was inherently in conflict with his duties to others or to his own personal interests. Id. at 1500 (emphasis added). Under this standard, it is clear that here defense counsel’s performance was adversely affected by his duties to codefendant Dodson. The state asserts that there is no evidence in the record that one defendant had evidence that would exculpate himself and inculpate his co-defendant. Each defendant alone confessed, implicating himself. The confession of each would have been admissible even if separate trials were given and separate counsel was appointed.... There is nothing in the record to show that counsel would have acted any differently if he only represented one defendant other than possibly placing each defendant on the stand. However, the confessions of each would have still been admissible.... In light of the above authority, the Appellant has failed to show that an actual con flict existed and similarly the record fails to show that an actual conflict existed and the trial court properly did not appoint separate counsel. Appellee’s Brief at 13-14. We disagree with the state’s argument that the record does not show an actual conflict. The record reveals that defense counsel’s cross-examination of Officer Evans was damaging to Selsor. During that examination, the following exchange occurred: Q Now, you previously stated that there was some conversation between the two defendants prior to entering the U-TOTE-M store concerning taking them out, is that correct? A That’s correct. Q Do you remember who said to whom — can you tell the jury something more about that conversation, if you recall? A I had asked Mr. Dodson if there had been any plans of this previous to going in the store and he stated that Mr. Selsor had mentioned taking them out, but he didn’t believe he was for real and Mr. Selsor’s comment on that was that, We discussed it and we didn’t want to leave any witnesses behind and I only did my part. Q It’s your testimony that their statements were different in that regard? A Not that much. It was the" }, { "docid": "12482572", "title": "", "text": "Espin been detected prior to or during their trial, the first prudent step which any lawyer single-mindedly devoted to Sawyer’s best interests would undoubtedly take would be to move for a severance. Had separate trials been held, the incriminating confession of Es-pin could not have been offered in evidence. Sawyer also would have been spared the possibly prejudicial effect, whether the trier of fact was judge or jury, of having as a codefendant one who has confessed his participation in the alleged crime. A conviction of Sawyer in a separate trial would by no means have been assured, even though the evidence against him, independent of the confession, was seemingly strong. Even though the trial court had denied a motion for severance, assuredly separate counsel for each defendant would have been provided when the conflict of interest became apparent. The fact that the trial court apparently failed to appreciate the possibility that Sawyer’s constitutional right was being infringed by the appointment of a single attorney to represent both defendants clearly has no bearing on the result which we reach. Persuasive on this point is Holland v. Boles, 225 F.Supp. 863 (N.D.W.Va.1963), wherein the court stated the following: “There remains for consideration the effect, if any, of the fact that the record here is devoid of proof that either the regular judge or the special judge was sufficiently aware of the factual situation to recognize and appreciate the inevitable conflict of interests. The effect upon the accused is the same whether or not the court knew Holland was improperly represented. He has not been accorded the effective representation by counsel to which he is constitutionally entitled * * *. Judge Denman, of the Ninth Circuit, in the original opinion in Hayman v. United States, 187 F.2d 456, at page 460 (1951), has this to say: Uf, unknown to the court, the accused’s counsel were bribed by an enemy of the accused to throw his case and the accused learned of it after conviction, the fact that the court had nothing to do with the wrong done, does not deprive him of" }, { "docid": "9686885", "title": "", "text": "statements affecting them in the event they did not intend to express acquiescence by the failure to do so. Mindful of the caveat of the Virginia Supreme Court of Appeals that “caution must be exercised” in admitting evidence under this rule, we conclude that Grover’s confession as a context for Miller’s silence was inadmissible under Virginia law because it was not made “under such circumstances as would naturally call for a reply or denial.” Miller had been told only shortly before that he had a right to remain silent. It is likely that this instruction effectively deadened his natural inclination to speak out in his own defense. Furthermore, because Miller denied his guilt both before and after Grover’s confession, we think that he would not have felt himself “called upon to deny the statements affecting [him],” and that his silence cannot logically be construed as an admission of guilt. See Knight v. Commonwealth, 196 Va. 433, 83 S.E.2d 738, 740-741 (1954); Plymale v. Commonwealth, 195 Va. 582, 79 S.E.2d 610, 615-616 (1954). But Miller’s reliance on Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968), is misplaced. In that case the Supreme Court held that the introduction of a co-defendant’s confession that implicated the defendant violated the defendant’s Sixth Amendment right to confront witnesses against him because the codefend-ant refused to testify. The trial judge here relied on the confession not for the truth of its content but as a context for Miller’s silence. Miller would have gained nothing from cross-examining Grover Robbs about the confession because the truthfulness of the confession was irrelevant to the purpose for which it was admitted. Finally, Miller claims that he was deprived of his Fifth Amendment right to remain silent by the trial judge’s reliance on his silence in response to Grover Robbs’ confession. He bases his claim upon the following language from Miranda v. Arizona, 384 U. S. 436, 468 n. 37, 86 S.Ct. 1602, 1625, 16 L.Ed.2d 694 (1966): In accord with our decision today, it is impermissible to penalize an individual for exercising his Fifth" }, { "docid": "9686881", "title": "", "text": "Miller and his code-fendants at the trial. His testimony was persuasive because of unusual opportunity both before and after the crime to observe them. Grover Robbs’ confession and Miller’s silence in response to it were admitted into evidence. Grover Robbs did not testify. The three were convicted of armed robbery, abduction, and unauthorized use of an automobile. Miller appealed his conviction to the Virginia Supreme Court of Appeals and has unsuccessfully exhausted state remedies. After careful consideration of the record, briefs, and arguments in this case, we conclude that with one exception the alleged grounds for relief are without merit and warrant little comment. Miller was not incompetently represented in violation of his Sixth Amendment right to adequate counsel. The transcript simply does not show that his attorney’s services were “so transparently inadequate as to make a farce of the trial.” Root v. Cunningham, 344 F.2d 1, 3 (4th Cir. 1965). Nor was Miller denied effective assistance of counsel because he and his codefendants were represented by a single attorney at their joint trial. Miller does not show that his interests were significantly in conflict with the interests of Lavone and Grover Robbs. His case is distinguishable from Sawyer v. Brough, 358 F.2d 70 (4th Cir. 1966), in which the court held that one attorney could not represent co-defendants at a joint trial where one had confessed implicating the other. In Sawyer, the confessing defendant attempted to exculpate himself by shifting most of the blame to his codefendant. This created the conflict of interests in Sawyer: the defendant implicated by the confession would have wanted it excluded or attacked, but the defendant partially absolved by the confession would have wanted it admitted and defended. No such conflict of interests existed in the present case. All the defendants in the present case plead “not guilty.” The confession of Grover Robbs contained nothing exculpatory of him or even mitigating the offense. He did not even attempt to shift blame to Lavone Robbs or Miller by asserting that either had the gun. All three defendants had an identical interest with respect to the" }, { "docid": "5730627", "title": "", "text": "more effective form at resentencing in 1979 than he did in sentencing in 1976 (R. 13), and while Suffredin repented by saying he would not subject himself to such a conflict again (R. 15), he also testified he did not feel at the 1976 hearing he was operating under a conflict of interest (R. 9). So far as Suffredin was concerned, in 1976 he really believed, and conducted himself as though, Michael was his only client — a concept that underpins the lack of any difference in his handling. In fact the trial judge concluded at the post-conviction hearing (R. 51): Both defendants were charged with murder, conceivably could have been both convicted of murder, but the jury was very perceptive and saw that there was a difference even though they were acting in concert, there was a difference between the father and the son, and they did not find the son guilty of murder. Perhaps, perhaps I missed that perceptiveness at the sentencing, but it was not anything to be attributed to Mr. Suffredin. He did an excellent job in presenting everything he could on behalf of his client and his client, I mean Michael, and I can see nothing that would warrant this Court in doing anything further. Thus Michael’s claim of any difference in Suffredin’s behavior rests on nothing more than speculation. This case cannot be distinguished from United States v. Mavrick, 601 F.2d at 931-32 in any way favorable to Michael. In Mavrick defendant claimed a conflict of interest at sentencing arising from counsel’s joint representation of defendant and his codefendant, who had confessed while defendant maintained his innocence. Defendant argued his attorney should have tried to pin the blame on the confessing codefendant, but did not because of his loyalty to the codefendant. Our Court of Appeals was “unable to conclude that defense counsel’s efforts were inhibited or impaired by the dual representation” (id. at 931). Defendant actually got a heavier sentence than his codefendant because (id. at 931 n. 11) he had not “taken that first step towards rehabilitation” by admitting his guilt. But" }, { "docid": "18047702", "title": "", "text": "were represented by a single attorney. The Medels now claim that the joint representation at trial was unconstitutional in light of the conflicting interests of the two defendants. The defendants are quite correct in pointing out that where codefendants’ interests are in conflict, the joint representation of codefendants by a single attorney may deprive a codefendant of his Sixth Amendment right to effective assistance of counsel. See e. g., Glasser v. United States, 1942, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680 (constitutional violation for Court to order attorney to represent eodefendants whose interests are in conflict); White v. United States, 5 Cir., 1968, 396 F.2d 822 (constitutional violation for attorney to represent one codefendant who seeks to absolve himself by implicating second codefendant). Indeed, very recently, both the Supreme Court and this Court have had occasion to emphasize the commitment to the principle of conflict-free representation. In Holloway v. Arkansas, 1978, 435 U.S. 475, 98 S.Ct. 1173, 55 L.Ed.2d 426, the Supreme Court held that where defense counsel had notified the trial court of a possible conflict, the trial court’s failure either to appoint separate counsel or to inquire into the need for separate counsel required an “automatic” reversal of the convictions of three codefendants who had been represented by a single court-appointed attorney. More recently, in United States v. Alvarez, 5 Cir., 1978, 580 F.2d 1251, this Court held that the joint representation by retained counsel of a defendant who had pleaded not guilty and two codefendants who had pleaded guilty and testified for the government at defendant’s trial created an impermissible conflict of interest. In reversing the defendant’s conviction, the Court stated this Circuit’s rule for conflict of interest cases: “We hold today that an accused, whether represented by appointed or retained counsel, is deprived of his Fifth and Sixth Amendment right to effective assistance of counsel, even in the absence of a showing of prejudice, when his attorney operates under an actual conflict of interest.” Id. at 1260. Of course, in each of these cases, the crucial underpinning to the finding of a constitutional violation" }, { "docid": "10022139", "title": "", "text": "interests during sentencing. He maintains that since Garelli had confessed, trial counsel could have argued this during the sentencing hearing before the trial court. Because the defendant, however, had consistently maintained his innocence, counsel was unable to argue repentance as a factor in mitigation of his crime. The contrast between the positions of the two defendants, he argues, made it impossible for their attorney to adequately represent both. Once again, however, we are unable to conclude that defense counsel’s efforts were inhibited or impaired by the dual representation. The sentencing hearings for Garelli and Mavrick were held some two weeks apart. The transcripts of those hearings contain no indication that defense counsel attempted to play the interests of one client off against those of the other. Nor does the record reveal that defense counsel withheld from the court any factors in mitigation which would have benefited Mavrick, but prejudiced Garelli. The defendant makes no such allegation. The defense counsel argued for leniency in both cases. Although the trial court did compare the two defendants and imposed a slightly harsher sentence on the defendant than he had on Garelli, this was well within his discretion, and there is no reason to believe that such a comparison would not have been made had the defendants been separately represented. As we have noted before, joint representation of codefendants is not inevitably inconsistent with the Sixth Amendment right to effective assistance of counsel. The defendant here has simply failed to establish with reasonable specificity that an actual conflict of interests hampered his defense during trial. We conclude that the joint representation did not deprive him of his Sixth Amendment right to effective assistance of counsel. IV. The defendant’s final argument is that he was deprived of due process by the government’s cross-examination of him when he took the stand. He maintains that the government questioning of him constituted impeachment by use of his silence following his arrest and following Miranda warnings in contravention of Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976). We view the purpose of the government’s" } ]

[ { "docid": "17999409", "title": "", "text": "and alternatively, that even if the original issue tax be deemed applicable, it should be limited to that portion of the total issue representing the $6,304,845 “Premium on Capital Stock” which was transferred to the “Capital Stock” subaccount. Plaintiff’s position rests on the proposition that the premium on capital stock was always a part of the capital stock account and was set up separately, prior to the exchange of stock, only because Interstate Commerce Commission regulations so required; that the regulations likewise required its merger with the capital stock account, after the exchange of no-par value for par value stock, but that this was merely accounting procedure. In effect, plaintiff argues that it is now being penalized by one Government department for doing what another department required. The courts have interpreted the term “original issue”, as used in Section 1802, supra, to be applicable to a new issue where the capital stock account has been increased either by receipt of additional consideration for the new stock or by the transfer of a given amount from paid-in surplus or earned surplus. If definite shares of the new issue can be identified as having been issued against the increase in capital, the tax is levied only on such shares. If there is such an intermingling of old and new capital that such identification is impossible, the entire new issue is taxable. This is true because the tax is not on the capital behind the shares, of stock but is measured by the par value of the shares (or actual value if not par value shares) represented by each stock certificate. W. T. Grant Co. v. Duggan, 2 Cir., 94 F.2d 859; Rio Grande Oil Co. v. Welch, 9 Cir., 101 F.2d 454; United States v. Pure Oil Co., 7 Cir., 135 F.2d 578. When the corporation had only par value stock its capital stock account represented the sum total of $100 par value for each share of stock issued. The premium' on capital stock represented paid-in surplus and, under Kentucky corporation law, could have been distributed as dividends, a disposition that could" } ]

[ { "docid": "23611538", "title": "", "text": "the state law on these questions prior to May 1, 1936; (4) whether payments of dividends under these circumstances were prohibited by state law. Acceptance of the Government’s contention would mean that courts administering the 1942 Act must first determine whether a deficit exists under federal law; if such a federal deficit exists, they must then turn to state law to decide whether under it a deficit exists such as prohibits the payment of dividends. We do not think that Congress intended the courts so to administer the 1942 amendment. The Government’s argument that it does relies heavily upon the Senate Committee Report. We think the Senate Committee Report, as a whole, leans toward the view we have taken of the purpose of the law. But in one of the six illustrative examples of application of the new tax relief provisions of the amendment, and in the subsequent Treasury Regulations, it was indicated that no tax credit should be allowed where a tax deficit resulted from “prior capitalization of surplus in the course of a nontaxable reorganization.” Aside from the fact that corporate reorganizations and simple stock dividends are quite different things, we find this one illustrative example insufficient to outweigh the considerations which have governed our interpretation of the 1942 amendment. We are persuaded that Congress at least intended by the amendment to refund taxes imposed on corporations which had failed to distribute dividends when distribution, in violation of state law, would have impaired long-existing state-approved corporate capitalizations. See United States v. Byron Sash & Door Co., 150 F. 2d 44, 46. In order that this purpose may be effected, the judgment of the Circuit Court of Appeals is Affirmed. “I. No corporation shall pay dividends in cash or property, (a) except from the surplus of the aggregate of its assets over the aggregate of its liabilities, plus the amount of its capital stock; or (b) out of any surplus due or arising from (1) any profit on treasury shares before resale; or (2) any unrealized appreciation in value or revaluation of fixed assets; or (3) any unrealized appreciation" }, { "docid": "20104553", "title": "", "text": "Cir., 264 F. 610. Nor do we think it of any importance whether shares are converted into identical or variant stock or whether preferred is exchanged for common or common for preferred, with resulting differences in rights and privileges, for the test is not whether the reissue is of different type but, rather, whether it is “original.” It was to defendant’s interest to liquidate its unpaid accumulated dividends and to bring about a lower dividend for the future. When, with this end in view, defendant issued an equal amount of new stock for that part of the corporate assets represented by previously existing shares, it made no addition to its capital. It accomplished nothing other than replacement of older preferred stock with new, smaller dividend stock; the holders retained the same proportionate interests in the capital assets. The additional shares issued in satisfaction of unpaid dividends represented the only contribution to capital effectuated; that and that alone was an original issue, Edwards v. Wabash Railway Co., 2 Cir., 264 F. 610; Trumbull Steel Co. v. Routzahn, D.C., 292 F. 1009; Routzahn v. Trumbell Steel Co., 6 Cir., 300 F. 1006; West Virginia Pulp & Paper Co. v. Bowers, D.C., 293 F. 144, affirmed 2 Cir., 297 F. 225, certiorari denied 265 U.S. 584, 44 S.Ct. 459, 68 L.Ed. 1191; Standard Manufacturing Co. v. Heiner, D.C., 300 F. 252; Cuba Railway Co. v. United States, 60 Ct.Cl. 272; Cleveland Provision Co. v. Weiss, D.C., 4 F.2d 408; In re Grant-Lees Gear Co., Bankrupt, D.C., 1 F.2d 393. The Government insists that the entries upon the corporate books fail to disclose any shares specifically designated as a substitution for old certificates. It suggests that inasmuch as no shares were issued in lieu of any certain specified shares and no specific certificates charged against capital or surplus, it is impossible to classify the entire new issue as other than original. But book entries alone are not decisive. Rio Grande Oil Company v. Welch, 9 Cir., 101 F.2d 454. And, so here, we receive no enlightenment from the formal ledger capital set-up. The undisputed" }, { "docid": "23619705", "title": "", "text": "its analysis to the four corners of the trust indenture there at issue. 531 F.Supp. at 218. In contrast, we consider ourselves bound to grapple with the intricacies of Massachusetts law and, in performing that task, to search for guidance in case law from other courts, the statutes of foreign jurisdictions, and common financial usage — all of which are appropriate benchmarks for gauging the reasonableness vel non of the appellant’s sweeping definition of “capital reorganization.” Thus, we treat Prescott as suggestive evidence that stock splits do not constitute capital reorganizations, but refrain from according it decretory significance. Also of interest is Wood v. Coastal States Gas Corp., 401 A.2d 932 (Del.1979). There, a corporation’s preferred shareholders challenged a settlement that required the parent corporation, inter alia, to spin off a subsidiary and distribute a portion of the subsidiary’s stock to the parent company’s common shareholders. Id. at 935-36. The preferred shareholders ar gued that the spin-off constituted a recapitalization, thereby triggering an antidilution adjustment in their stock certificates. The court rejected this argument, holding that the settlement plan did not constitute a recapitalization. Id. at 941. Like Prescott, this case suggests that the term “capital reorganization” is not so elastic as the appellant claims, but it does not fully answer the question that we must decide. Moving beyond the case law, the meaning of the term “capital reorganization” in common legal parlance seemingly belies the appellant’s ambitious definition. The preeminent legal lexicon defines “reorganization,” in pertinent part, as a “[gjeneral term describing corporate amalgamations or readjustments occurring, for example, when one corporation acquires another in a merger or acquisition, a single corporation divides into two or more entities, or a corporation makes a substantial change in its capital structure.” Black’s Law Dict. 1298 (6th ed.1990). The first two prongs of this definition are clearly inapposite here. That leaves only the question of whether a stock split entails a “substantial change in [a corporation’s] capital structure.” We think not. First and foremost, the accounting mechanics that accompany a stock split are mere window dressing. See generally Robert S. Anthony &" }, { "docid": "8137831", "title": "", "text": "term has a technical or special meaning and also a general one. Congress has given it a specific definition which applies to tax cases. If our general understanding of the meaning of the word liquidation be different, it must give way to the statutory definition for tax purposes. Likewise, in giving it this special definition, Congress did not confer with or agree with the taxpayer on this definition. It should therefore be bound by the language it used. Section 115 was taken from the Acts of 1934 and 1936. Section 115(c) (Acts of 1936 and 1938) provides “Distributions in liquidation. Amounts distributed in complete liquidation of a corporation shall be treated as in full payment in exchange for the stock, and amounts distributed in partial liquidation of a corporation shall be treated as in part of full payment in exchange for the stock. The gain or loss to the distributee resulting from such exchange shall be determined under section 111, but shall be recognized only to the extent provided in section 112. Despite the provisions of section 117, the gain so recognized shall be considered as a short-term capital gain except in case of amounts distributed in complete liquidation.” Section 115 (i) defines “partial liquidation” as above quoted. The history of this taxation measure is somewhat illuminating. It shows that beginning in 1921 and continuing up to 1934, all liquidations were taxed as capital gains. In 1934 the Act was amended at the instance of the treasury to prevent shareholders distributing corporate earnings and profits in liquidation so as to pay capital gains tax and thereby avoiding the surtax which would be payable were such surplus distributed as dividends. See also, Senate Report No. 558, C. B. 1939-1 p. 586, 614. Also see House Report No. 704, C. B. 1939-1, Part 2, p. 554, 576. It is fair to assume from these reports thai Congress when it enacted this legislation intended to apply it to cases where payments were made by the corporations out of earnings. It did not intend it to apply to distributions of capital. In the latter" }, { "docid": "22960491", "title": "", "text": "reorganization ¡provided that the receiver should pay $5.00' lor each $1000 debenture surrendered for cancellation. The taxpayer availed himself of this provision, and in his tax return claimed a deduction of $24,625, as for a bad debt. The Commissioner disallowed the claim, and the Board of Tax Appeals affirmed his decision. The Circuit Court of Appeals reversed. By reason of the conflict of decision we granted certio-rari in. both cases. ' ' The earlier revenue acts contained sections similar to 23 (k) of the Act of 1934. They also embodied provisions for calculation of taxes on capital net gains. None of them: included any section like 117 (f). Prior to the adoption of the 1934 Act it had been held that the phrase “sale or exchange”'of capital assets, employed .in those Acts, was not descriptive of the redemption or call for repayment of corporate securities, and hence gain thereby occasioned was to be treated as ordinary income, and loss so arising was to be deducted from gross income as a bad debt. • The Revenue Act of 1934, by sub-section (f) of § 117, provided that for the purposes of the title dealing with capital gains and losses, “amounts received by the holder upon the retirement” of such securities as are here involved, “shall be considered as amounts received in exchange therefor.” It is- plain that Congress intended by the new subsection (f) to take out of the bad debt provision certain transactions and to place them in the category of capital gains and losses. The question is whether by employing the word “retirement” the' transactions here involved were so transferred. We hold that they were. “Retirement” aptly describes what occurred in the instant cases. The statute does not use the word in an unusual or artificiál sense. In common understanding arid according to dictionary definition the word “retirement” is broader in scope than “redemption”; is not, as contended, synonymous with the latter, but includes it. Nothing in the legislative history óf the provision requires us to attribute to the term used a meaning narrower than its accepted meaning in" }, { "docid": "23624563", "title": "", "text": "taxpayer must in fact have been using the corporate form as a device to convert ordinary income into capital gain. If a corporation owns but one asset, and the shareholders sell their stock at a profit resulting from an increase in the value of the asset, they have “gain attributable to” that asset in the natural meaning of the phrase regardless of their desire, or lack of desire, to avoid thp bite of federal income taxes. II. Nor is there anything in the legislative history that would lead us to depart from the plain meaning of the statute as petitioners would have us do. There can of course be no question that the purpose *éí § 117 (m) was, as petitioners contend, to close a loophole that Congress feared could be used to convert ordinary income into capital gain. See H. R. Rep. No. 2319, 81st Cong., 2d Sess.; S. Rep. No. 2375, 81st Cóng., 2d Sess. But the crucial point for present purposes is that the method chosen to close this loophole was to establish a carefully and elaborately. defined category of transactions in which what might otherwise be a capital gain would have to be treated as ordinary income. There is no indication whatever of any congressional desire to have the Commissioner or the courts make a determination in each case as to whether the use of the corporation was for tax avoidance. Indeed, the drawing of certain arbitrary lines not here involved — such as making the section inapplicable to any shareholder owning .10% or less of the stock or to any gain realized more than three years after the completion of construction — tends to refute any such indication. It is our understanding, in other words, that Congress intended to define what it believed to be a tax avoidance device rather than to leave the presence or absence of tax avoidance elements for decision on a case-to-case basis. We are reinforced in this conclusion by the practical difficulties — indeed the impossibilities — of considering without more legislative guidance than is furnished by § 117 (m)" }, { "docid": "4280143", "title": "", "text": "off the full amount of the losses against taxable ordinary income from other sources. The intent of Congress in passing Section 117(f) of the Revenue Act of 1934 was to insure that losses from such transactions would be subject to the capital loss limitations of Section 117. Thus Section 117(f) provides that, for the purposes of the title dealing with capital gains and losses, “amounts received by the holder upon the retirement” of corporate securities described in that section shall be considered “as amounts received in exchange therefor.” In other words, such amounts will be accorded capital gain and loss treatment. It must be determined here, therefore, whether the retirement or redemption of frozen bank deposits comes within the orbit of Section 117(f). Is the description of corporate securities in that sec-, tion sufficiently broad to cover the letter issued to the taxpayer showing the transfer of the frozen deposit on the books of the bank? Stated more specifically, was it an “evidence of indebtedness * * * in registered form” as required by the statute? The Government contends that Section 117 (f) was never intended by Congress to include frozen deposit claims since such obligations are not ejusdem generis with the bonds, debentures and notes therein specifically mentioned. In effect, the Government would restrict the scope of Section 117(f) literally to “bonds, debentures, notes, or certificates” and treat “other evidences of indebtedness” as surplusage. A similar attempt to restrict the language of Section 117(f) was made in McClain v. Commissioner of Internal Revenue, supra, where it was argued that the word “retirement” did not include an involuntary redemption of bonds as part of a corporate reorganization. The Court held that “The statute does not use the word in an unusual or artificial sense. In common understanding and according to dictionary definition the word ‘retirement’ is broader in scope than ‘redemption’; is not, as contended, synonymous with the latter, but includes it. Nothing in the legislative history of the provision requires us to attribute to the term used a meaning narrower than its accepted meaning in common speech.” Similarly, there" }, { "docid": "5124451", "title": "", "text": "decided to raise its common stock capital account back to the amount of $870,325,200. It debited the capital surplus account $38,462,800.89, eliminating the balance in that account, debited earned surplus account $179,118,-499.11, and credited common stock capital account $217,581,300, thus increasing that account to $870,325,200. The majority opinion holds that the full amount cannot be traced or identified because the accountant charged capital surplus with the writedown of the intangibles instead of earned surplus. The statute does not require the tracing of funds, which is in and of itself an artificial concept, but on the contrary specifically states that only the “amount dedicated as capital for the first time by the recapitalization, whether by a transfer of earned surplus or otherwise,” is to be taxed. The clause “whether by a transfer of earned surplus or otherwise” indicates that Congress was not basing the tax on book entries. I do not believe that Congress ever intended that the tax would be determined on whether the accountant used one surplus theory in keeping the books of the corporation or another. Whether an item should be charged to earned surplus, capital surplus, or to some other account, varies from accountant to accountant. There could be found ample authority among accountants for the charging of the intangibles in the instant case to earned surplus rather than to capital surplus. This is especially true where, as in this case, capital surplus was made up of entirely paid-in capital instead of the various and sundry other items that could have been credited to that account. Some of the difficulty that will result from treating bookkeeping entries as controlling taxability is demonstrated by the difficulty the majority opinion has with the $38,462,800.89 balance in the capital surplus account before the rededieation. I would allow the plaintiff to recover the Federal stock issue tax paid on the $217,581,300 because that amount had already been subjected to the tax once and the plain term of the statute prohibited its being taxed a second time." }, { "docid": "20104554", "title": "", "text": "Routzahn, D.C., 292 F. 1009; Routzahn v. Trumbell Steel Co., 6 Cir., 300 F. 1006; West Virginia Pulp & Paper Co. v. Bowers, D.C., 293 F. 144, affirmed 2 Cir., 297 F. 225, certiorari denied 265 U.S. 584, 44 S.Ct. 459, 68 L.Ed. 1191; Standard Manufacturing Co. v. Heiner, D.C., 300 F. 252; Cuba Railway Co. v. United States, 60 Ct.Cl. 272; Cleveland Provision Co. v. Weiss, D.C., 4 F.2d 408; In re Grant-Lees Gear Co., Bankrupt, D.C., 1 F.2d 393. The Government insists that the entries upon the corporate books fail to disclose any shares specifically designated as a substitution for old certificates. It suggests that inasmuch as no shares were issued in lieu of any certain specified shares and no specific certificates charged against capital or surplus, it is impossible to classify the entire new issue as other than original. But book entries alone are not decisive. Rio Grande Oil Company v. Welch, 9 Cir., 101 F.2d 454. And, so here, we receive no enlightenment from the formal ledger capital set-up. The undisputed fact is that the old preferred stock was exchanged share for share and the dividend arrears satisfied by issuance of additional shares. Whatever the book entries, the only new thing that could properly have gone into the capital account was the contribution by the shareholders of their unpaid dividends to the corpora tion in consideration of which they received the additional shares. The Government insists that the pronouncement of Rio Grande Oil Company v. Welch, supra, leads necessarily to the conclusion that the entire issue was original. But the basis for decision in that case is absent here in that there the court found that the transaction effectuated a complete reorganization and a fundamental change in the entire capital structure. Here the corporate structure remained the same except as to the additional shares issued in satisfaction of unpaid dividends. In view of the fact that defendant mistakingly overpaid the amount due, its counterclaim should have been allowed. The judgment is reversed with directions to proceed in accord with the announcements herein contained." }, { "docid": "1864681", "title": "", "text": "portion of the Commission’s report on the Company’s application states: “The applicant proposes to amend its articles of incorporation to change its authorized capital stock from shares with a par value of $100 a share to shares without nominal or par value, the number of authorized shares to remain unchanged. Of the total authorized shares, 3,722,763.0564 will be issued to the holders of the outstanding stock, upon the surrender of the outstanding certificates, on a share for share basis and w-ill be entered in the applicant1s capital stock account at $383,581,150.64, representing the par value and premium on its outstanding stock.11 [Emphasis supplied.] While it does not appear from this that the Commission actively imposed a requirement that the amount in the premium account be transferred to capital stock account, nevertheless it approved the Company’s application embracing a proposal to make such a transfer. It cannot be assumed that the Commission was unaware of the significance of the proposed transfer, or that it would have granted the desired authority on terms short of those submitted by the carrier. Affirmed. ln the course of the litigation it was reincorporated in the state of Delaware, and the new corporation, appellant here, was substituted as plaintiff. Without going into details, it suffices to say that this premium was received as a result of the conversion into stock of outstanding bonds under an option entitling the owners to purchase stock at stated amounts in excess of par. Cf. Rio Grande Oil Co. v. Welch, 9 Cir., 101 F.2d 454; W. T. Grant Co. v. Duggan, 2 Cir., 94 F.2d 859; American Gas & Electric Co. v. United States, D.C., 69 F.Supp. 614. The phrase “subclasses of capital stock” evidently has reference to the subclasses enumerated in account 751." }, { "docid": "22612908", "title": "", "text": "lessee to the corporate lessor under the provisions of a mining lease. Von Baumbach v. Sargent Land Co., 242 U. S. 503, 521, 522; United States v. Biwabik Mining Co., 247 U. S. 116. Although these cases arose under the Act of 1909, before the enactment of the capital gains provision in the 1921 Act, they established, for purposes of defining “ income ” in a tax measured by it, that payments by lessees to lessors under mining leases were not a conversion of capital, as upon a sale of capital assets, but were income to the lessor, like payments of rent. And before the 1921 Act this Court had indicated (see Eisner v. Macomber, 252 U. S. 189, 207), what it later held, that “income,” as used in the revenue acts taxing income, adopted since the Sixteenth Amendment, has the same meaning that it had in the Act of 1909. Merchants Loan & Trust Co. v. Smietanka, 255 U. S. 509, 519; see Southern Pacific Co. v. Lowe, 247 U. S. 330, 335. Congress legislated in! the light of this history, cf. United States v. Merriam, 263 U. S. 179, 187; and, in the absence of explicit language indicating a different purpose, it cannot be taken to have intended that an oil and gas lease under the capital gains provision, any more than a mineral lease under the earlier acts, should be treated like an ordinary sale of land or chattels, resulting in a conversion of capital assets. Such a construction would have disregarded legislative and judicial history of persuasive force; it would have adopted a distorted, rather than the common meaning of the term “sale,” see Old Colony R. Co. v. Commissioner, 284 U. S. 552, 561, and would have tended to defeat rather than further the purpose of the Act. The respondent does not challenge the correctness of the construction of the statute which we adopt, when applied to oil and gas leases under which the title to the oil and gas passes to the lessee only on severance from the leasehold. But it is argued that" }, { "docid": "16729013", "title": "", "text": "“issued in a recapitalization”. That proviso was added August 8, 1947. It was remedial, intended to remove certain inequities. House Report No. 969, July 17, 1947 (U.S.Code Cong.Service; 80th Congress, First Session, 1947, p. 1683) refers to this situation, as follows: “At present, in some cases, the tax imposed under section 1802 on capital stock issues, once levied, must be reimposed upon part of a new capital stock issue.” The House Bill had the support of the Treasury Department, whose Acting Secretary wrote the Chairman of the House Committee on July 10, 1947, as follows: “The bill proposes to amend section 1802(a), supra, relating to the stamp tax on issues of capital stock and similar interests, so as to limit the tax on the issuance of certificates (or shares, where no certificates are issued), in those cases where new and additional capital is introduced to the capital stock accounts, to an amount calculated on the basis of the earned surplus or other capital which for the first time is dedicated as capital. The tax imposed by this section of the Internal Revenue Code is laid on each original issue of shares or certificates of stock. Corporations, when adjusting their capital structure, frequently transfer surplus or other new capital to one or more of their capital stock accounts and issue new shares against the sum total of the old and new capital. In this situation there is no alternative under the present law to taxing as an original issue all the shares or certificates of stock so issued. The proposed amendment will avoid the reimposing of a tax on the amount of capital which has previously been subject to the original issue tax as imposed by section 1802(a), supra, by specifically providing that the tax shall be limited to a tax calculated on that amount which for the first time is dedicated as capital.” That paragraph shows the purpose of the August 8, 1947 amendment. It is intended to apply only to corporations which “when adjusting their capital structure” make a transfer of surplus or other new capital to a stock" }, { "docid": "1864680", "title": "", "text": "that if the amount in account. 753 was surplus before the exchange it remained surplus after it was transferred. The corporate directorate, it insists, did not intend to effect any increase in capital. In respect of the latter proposition we agree that the record affords no clear picture of what the directors thought they were accomplishing by the disposition made of the premium account; and this state of confusion gives rise to the only substantial difficulty in the case. As this court observed in the cognate case of Rio Grande Oil Company v. Welch, 9 Cir., 101 F.2d 454, 456, an increase or decrease in the stated capital of a corporation effects a fundamental change in the corporate structure; and book entries alone are not decisive of the matter. But we are satisfied that the corporate action taken in this instance, considered in the light of the Commission’s grant of authority for the charter amendment, compels the conclusion that a dedication of additional capital in fact occurred. As set out in the record, the pertinent portion of the Commission’s report on the Company’s application states: “The applicant proposes to amend its articles of incorporation to change its authorized capital stock from shares with a par value of $100 a share to shares without nominal or par value, the number of authorized shares to remain unchanged. Of the total authorized shares, 3,722,763.0564 will be issued to the holders of the outstanding stock, upon the surrender of the outstanding certificates, on a share for share basis and w-ill be entered in the applicant1s capital stock account at $383,581,150.64, representing the par value and premium on its outstanding stock.11 [Emphasis supplied.] While it does not appear from this that the Commission actively imposed a requirement that the amount in the premium account be transferred to capital stock account, nevertheless it approved the Company’s application embracing a proposal to make such a transfer. It cannot be assumed that the Commission was unaware of the significance of the proposed transfer, or that it would have granted the desired authority on terms short of those submitted" }, { "docid": "4509025", "title": "", "text": "consistently held that the substituted shares are not taxable as an “original issue.” American Laundry Machinery Co. v. Dean, 292 F. 620, D.C. S.D.Ohio; Trumbull Steel Co. v. Routzahn, 292 F. 1009, D.C.N.D.Ohio; Bowers v. West Va. Pulp & Paper Co., 2 Cir., 297 F. 225; Standard Mfg. Co. v. Heiner, 300 F. 252, D.C.W.D.Pa.; Cuba R. Co. v. United States, 60 .Ct.Cl. 272. So, too, where one kind of stock was exchanged for another. Edwards v. Wabash Ry. Co., 2 Cir., 264 F. 610; In re Grant Lees Gear Co., 1 F.2d 393, D.C.N.D. Ohio; Cleveland Provision Co. v. Weiss, 4 F.2d 408, D.C.N.D.Ohio. The appellant contends that in the present case the additional issue merely doubled the number of shares outstanding, and should be treated like a “split-up.” But here the issue did effect a change in the capitalization of the company; the capital was increased by the sum of $538,900 and the surplus correspondingly decreased. The rights of shareholders were altered accordingly. It was a stock dividend. See United States v. Siegel, 8 Cir., 52 F.2d 63, 65. The Treasury Regulations have long classified a stock dividend as an “original issue.” This accords, we believe, with common usage, for most people would regard shares issued as a dividend as a new issue, and not the same as a “split-up.” So far as we are informed, no court has ruled upon the taxability of a stock dividend issue, although dicta in favor of it can be found. See American Laundry Machinery Co. v. Dean, 292 F. 620, 622, D.C.S.D.Ohio; Cleveland Provision Co. v. Weiss, 4 F.2d 408, 412, D.C.N.D.Ohio. The validity of the regulation appears too clear for dispute; and subsequent re-enactment of the stamp tax provisions indicates that Congress was content with the departmental interpretation. United States v. Safety Car Heating & Lighting Co., 297 U.S. 88, 95, 56 S.Ct. 353, 356, 80 L.Ed. 500. There remains the question of the amount of the tax. The appellant argues 'that, if a stock dividend issue i's taxable at all, the tax must be measured by the sum set" }, { "docid": "23550359", "title": "", "text": "value over the long run. Since the security is of value in more than one taxable year, it is a capital asset within the meaning of § 1221 of the Internal Revenue Code, and its cost is nondeductible. Cf. Commissioner v. Lincoln Savings & Loan Assn., 403 U. S. 345 (1971); Old Colony R. Co. v. United States, 284 U. S. 552 (1932); 26 CFR § 1.461-1. We reject the contention that while the Class C stock may be a capital asset, it is worth only $1, and that the additional $99 paid for each share must represent interest. Were we dealing with the traditional corporate structure in this case, the taxpayers' argument would have strength. But, as we have pointed out previously, the essential nature of cooperatives and corporations differs. The value of the Class C stock derives primarily from attributes other than marketability. The stock has value because it is the foundation of the cooperative scheme; it insures stability and continuity. The stock also has value because it enables the farmers to work together toward common goals. It enables them to share in a venture of common concerns and to reap the rewards of knowing that they can finance themselves without the assistance of the Federal Government. It is perhaps debatable whether these attributes should properly be valued at $100 per share, but we are not called upon merely to resolve a question of valuation. Rather, we must decide whether it is artificial to characterize these unique expenditures as payments for a capital asset. We find that it is not. The taxpayers and the Government each allege that the other is looking at form rather than substance. At some point, however, the form in which a transaction is cast must have considerable impact. Guterman, Substance v. Form in the Taxation of Personal and Business Transactions, N. Y. U. 20th Inst, on Fed. Tax. 951 (1962). Congress chose to make the taxpayers buy stock; Congress determined that the stock was worth $100 a share; and this stock was endowed with a long-term value. While Congress might have been able" }, { "docid": "5124441", "title": "", "text": "instances, to make the stamp tax applicable to both the previously existing capital and the newly added capital. This result was permitted in Southern Pacific Co. v. Berliner, 9 Cir., 176 F.2d 671, a case arising prior to the 1947 amendment, but decided subsequent thereto, and in other cases. This court, in considering this problem, held that the tax was applicable only to sums newly added to the capital account and not to both the previously existing capital and the newly added capital. Crown Cork & Seal Co., Inc., v. United States, 94 F.Supp. 117, 118 Ct.Cl. 156. Although the Crown case arose prior to the 1947 amendment, it was decided subsequent to its enactment, and the court indicated that the 1947 amendment was added to make it clear that, in situations similar to the one then before it, the tax should be applicable only to sums newly added to the capital account. We believe that this was the purpose of the amendment, i. e., Congress intended to make it clear that an amount already in the capital account should not be taxed a second time when a new amount was added to capital and new shares of stock issued. But the $179,118,499.11 taken out of earned surplus and placed in the capital account in the present case was not an amount already in the capital account. It was an amount added to capital for the first time and was properly taxable, as we held in the Crown Cork & Seal Co. case, supra. But plaintiff says this is contrary to section 113.23(e) of Treasury Regulation 71 (1941 ed.), 26 CFR 113.23(e), which reads as follows: «* * * A tax is not payable with respect to stock issued in a recapitalization unless the recapitalization results in the dedication of an amount as capital which amount is so dedicated for the first time. Thus, where a corporation transferred an amount from capital to capital surplus in a prior recapitalization, and such corporation in a subsequent or second recapitalization transfers such amount from capital surplus to capital under such circumstances that" }, { "docid": "1851766", "title": "", "text": "common meaning. Helvering v. William Flaccus Oak Leather Co., 313 U.S. 247, 249, 61 S.Ct. 878, 85 L.Ed. 1310; Kales v. Commissioner, 6 Cir., 101 F.2d 35. In the present case, the promise was to pay $20,000 at the expiration of the ten-year period. Clearly $20,000 was the amount received on the retirement of the certificate, and under the plain wording of § 117(f), it was taxable as a capital gain. A provision that the increment in such cases should be taxable under § 22(a) might or ¡might not have-been wise and fair; but Congress has not enacted it, and the courts cannot supply it by judicial legislation. Because of the application of the capital gains tax to securities which on their retirement may not result in capital gain, inconsistencies and inequalities may well result from the application of § 117(f). If this is so, the correction of this defect in the operation of the statute is-for Congress and not for the courts. McClain v. Commissioner, 311 U.S. 527, 530, 61 S.Ct. 373, 85 L.Ed. 319. Since the decisive question is the applica bility of § 117(f), Kieselbach v. Commissioner, 317 U.S. 399, 63 S.Ct. 303, 87 L.Ed. 358, and other decisions relied on which do not construe that section, while illuminating, are not controlling. The decision is affirmed. 26 U.S.C.A. Int.Rev.Code, § 117. “(a) Definitions. As used in this chapter— “(1) Capital assets. The term ‘capital assets’ means property held by the taxpayer. * * * “ (4) Long-term capital gain. The term ‘long-term capital gain’ means gain from the sale or exchange of a capital asset held for more than 18 months, if and to the extent such gain is taken into account in computing net income; * * * * * “(b) Percentage taken into account. In the case of a taxpayer, other than a corporation, only the following percentages of the gain or loss recognized upon the sale or exchange of a capital asset shall be taken into account in computing not income: “100 per centum if the capital asset has been held for not more" }, { "docid": "4509026", "title": "", "text": "8 Cir., 52 F.2d 63, 65. The Treasury Regulations have long classified a stock dividend as an “original issue.” This accords, we believe, with common usage, for most people would regard shares issued as a dividend as a new issue, and not the same as a “split-up.” So far as we are informed, no court has ruled upon the taxability of a stock dividend issue, although dicta in favor of it can be found. See American Laundry Machinery Co. v. Dean, 292 F. 620, 622, D.C.S.D.Ohio; Cleveland Provision Co. v. Weiss, 4 F.2d 408, 412, D.C.N.D.Ohio. The validity of the regulation appears too clear for dispute; and subsequent re-enactment of the stamp tax provisions indicates that Congress was content with the departmental interpretation. United States v. Safety Car Heating & Lighting Co., 297 U.S. 88, 95, 56 S.Ct. 353, 356, 80 L.Ed. 500. There remains the question of the amount of the tax. The appellant argues 'that, if a stock dividend issue i's taxable at all, the tax must be measured by the sum set aside for the stock dividend; namely, the $538,900 converted from surplus to capital. But the statute does not provide any such basis for the amount of the tax. It lays a tax upon the actual value thereof. See Commercial Credit Co. v. Tait, 2 F.2d 862, D.C.Md. As already stated, the Commissioner measured the actual value by the market value as evidenced by sales on the New York Stock Exchange on the date the certificates were issued, October 25, 1929.' In so doing he acted in conformity with the regulation then in effect. T.R. 71, art. 27(d). The appellant contends that this regulation is void. It was so held in Intercoast Trading Co. v. McLaughlin, 18 F.Supp. 149, D.C.N.D.Cal. But we cannot agree that, where a fair and ready market exists, the market price does not establish the value of the article. “Actual” adds nothing. Cummings v. Merchants’ National Bank, 101 U.S. 153, 162, 25 L.Ed. 903; Sanford v. Peck, 63 Conn. 486, 27 A. 1057, 1058. The value or “actual value” of the plaintiff’s" }, { "docid": "16729017", "title": "", "text": "the shares or certificates so issued. “(1) A tax is not payable with respect to stock issued in a recapitalization unless the recapitalization results in the dedication of an amount as capital which amount is so dedicated for the first time.” Section 113.26 of the Regulations states: “§ 113.26 Stamps to be affixed to stock book. The requisite revenue stamps must be affixed to the stock book or corresponding record of the organization and not to the certificates issued. For this purpose, ordinary documentary stamps shall be used. For provisions relating to cancellation of stamps, see § 113.133.” The constant repetition of the words “issue” and “issued” in these Regulations emphasizes the point that it is when shares or certificates are issued that the stamp tax impinges on the transaction. An increase in the capital of a corporation by the transfer of part of its earned surplus to the capital account for its outstanding shares of no par value stock does not require the corporation to pay a stamp tax under section 1802(a), if no shares or certificates are issued as part of the transaction. But if shares or certificates are subsequently issued against the increase in capital thus created, a stamp tax under section 1802(a) would, I believe, become payable. Unless there are both the addition to capital and the issuance of new shares or certificates under the recapitalization, no stamp tax is payable under section 1802(a) as amended August 8, 1947. If the Congress had intended that a tax should be imposed on an increase of capital resulting from a transfer of earned surplus to capital it would have said so. If this fact situation constitutes an unforeseen “loophole” in the tax structure, in particular section 1802(2) of the Internal Revenue Act, the Congress can take care of that also. The defendant’s motion for summary judgment is granted and the complaint is dismissed. The government’s cross motion for summary judgment is, of course, denied. Settle an order promptly. . “§ 1802. Capital stock (and similar interests) “(a) Original issue. On each original issue, whether on organization or reorganization," }, { "docid": "16729014", "title": "", "text": "by this section of the Internal Revenue Code is laid on each original issue of shares or certificates of stock. Corporations, when adjusting their capital structure, frequently transfer surplus or other new capital to one or more of their capital stock accounts and issue new shares against the sum total of the old and new capital. In this situation there is no alternative under the present law to taxing as an original issue all the shares or certificates of stock so issued. The proposed amendment will avoid the reimposing of a tax on the amount of capital which has previously been subject to the original issue tax as imposed by section 1802(a), supra, by specifically providing that the tax shall be limited to a tax calculated on that amount which for the first time is dedicated as capital.” That paragraph shows the purpose of the August 8, 1947 amendment. It is intended to apply only to corporations which “when adjusting their capital structure” make a transfer of surplus or other new capital to a stock account “and issue new shares against the sum total of the old and new capital”. The remedial purpose of the August 1947 amendment of section 1802(a) of the Code was referred to in United States v. California Electric Power Co., 9 Cir., 187 F.2d 313 at page 318, as follows: “Congress recognized that the application of § 1802(a) as it existed prior to 1947 resulted in what might be termed double taxation in certain instances and amended the section to eliminate that situation. The amendment has no retroactive effect”. Section 1802(a) is a tax on an original issue of capital stock. It is not a tax on an addition to capital, made by a transfer from surplus to capital, where no new stock is issued. The cases show that the stamp tax is, as L. Hand, C. J., put it, “an excise upon the act of issuance”, to be imposed only once when the original certificate is issued. Empire Trust Co. v. Hoey, 2 Cir., 103 F.2d 430 at page 432. The scope of the" } ]

[ { "docid": "22795235", "title": "", "text": "reasoning of that decision recognizes the importance of preserving the traditional aspects of tribal sovereignty over the relationships among reservation Indians. Our more recent cases have made it clear, however, that commercial transactions between Indians and non-Indians — even when conducted on a reservation — do not enjoy any blanket immunity from state regulation. In Rice v. Rehner, 463 U. S. 713 (1983), respondent, a federally licensed Indian trader, was a tribal member operating a general store on an Indian reservation. We held that the State could require Rehner to obtain a state license to sell liquor for off-premises consumption. The Court attempts to distinguish Rice v. Rehner as resting on the absence of a sovereign tribal interest in the regulation of liquor traffic to the exclusion of the States. But as a necessary step on our way to deciding that the State could regulate all tribal liquor sales in Indian country, we recognized the State’s authority over transactions, whether they be liquor sales or gambling, between Indians and non-Indians: “If there is any interest in tribal sovereignty implicated by imposition of California’s alcoholic beverage regulation, it exists only insofar as the State attempts to regulate Rehner’s sale of liquor to other members of the Pala Tribe on the Pala Reservation.” Id., at 721. Similarly, in Washington v. Confederated Tribes of Colville Indian Reservation, 447 U. S. 134 (1980), we held that a State could impose its sales and cigarette taxes on non-Indian customers of smokeshops on Indian reservations. Today the Court seems prepared to acknowledge that an Indian tribe’s commercial transactions with non-Indians may violate “the State’s public policy.” Ante, at 209. The Court reasons, however, that the operation of high-stakes bingo games does not run afoul of California’s public policy because the State permits some forms of gambling and, specifically, some forms of bingo. I find this approach to “public policy” curious, to say the least. The State’s policy concerning gambling is to authorize certain specific gambling activities that comply with carefully defined regulation and that provide revenues either for the State itself or for certain charitable purposes," } ]

[ { "docid": "15049352", "title": "", "text": "to the State of New York do not permit the State of New York to govern activity which is described as “civil/regulatory” in nature on Indian reservations, (3) N.Y.Penal Law §§ 225.05 and 225.30 is eivil/regulatory, as opposed to criminal/prohibitory, in nature, (4) violation of this civil/regulatory statute cannot serve as an element of 18 U.S.C. § 1955, and (5) the indictment as it relates to charges asserted pursuant to 18 U.S.C. § 1955 must be dismissed for failure to allege a necessary element. The defendants are correct in their assertion that Indian tribes retain “attributes of sovereignty” which are subject to defea-sance only by an enactment of the Federal Government and not the States. Washington v. Confederated Tribes of the Colville Indian Reservation, 447 U.S. 134, 154, 100 S.Ct. 2069, 2081, 65 L.Ed.2d 10 (1980). “It is clear, however, that state laws may be applied to tribal Indians on their reservations if Congress has expressly so provided.” California v. Cabazon Band of Mission Indians, 480 U.S. 202, 107 S.Ct. 1083, 1087, 94 L.Ed.2d 244 (1987). New York has been granted broad criminal jurisdiction by Congress over offenses committed by or against Indians on Indian country within the State. See 25 U.S.C. § 232. However, the federal grant of civil jurisdiction was more circumscribed. 25 U.S.C. § 233 provides New York with jurisdiction over private civil litigation but does not appear to grant general civil regulatory authority to the State: reserving such authority to the federal government and to the Indians themselves. The grant of civil and criminal authority to New York in 25 U.S.C. §§ 232 and 233 is very similar that which was granted to a number of western states in Public Law 280, 18 U.S.C. § 1162, 28 U.S.C. § 1360. The Supreme Court has determined that Public Law 280 does not constitute a grant of general regulatory authority to the states to which it applies. See Bryan v. Itasca County, 426 U.S. 373, 385, 388-90, 96 S.Ct. 2102, 2109, 2110-11, 48 L.Ed.2d 710 (1976); California v. Cabazon Band of Mission Indians, 480 U.S. 202, 107 S.Ct." }, { "docid": "13636677", "title": "", "text": "immunity. Cf. United States v. Longo, 464 F.2d 913, 916 (8th Cir.1972) (Rule 13(a) is not a congressional waiver of the United States’ immunity from compulsory counterclaims). We have previously rejected the contention that congressional enactments unrelated to immunity may implicitly grant authority to bring suit against Indian tribes. See Rehner, 678 F.2d at 1351 (statute governing Indian liquor licenses); Quechan Tribe, 595 F.2d at 1155 (Declaratory Judgment Act). Congress, no less than a tribe itself, cannot imply a waiver of sovereign immunity but must “unequivocally” express it. Santa Clara Pueblo, 436 U.S. at 58, 98 S.Ct. at 1677; Employees of the Department of Public Health & Welfare v. Department of Public Health & Welfare, 411 U.S. 279, 285, 93 S.Ct. 1614, 1618, 36 L.Ed.2d 251 (1973). Furthermore, Rule 13(a) is explicitly intended to require joinder of only those claims that might otherwise be brought separately. The authorizing statute for the Federal Rules of Civil Procedure specifies that the rules “shall not abridge, enlarge or modify any substantive right.” 28 U.S.C. § 2072 (1982). We cannot find that a rule promulgated pursuant to this statute was intended impermissibly to abridge the Indian tribes’ substantive right to immunity from suit. Nor can we read Rule 13(a) in isolation and extend federal jurisdiction despite the repeated specification that the rules are not intended to have such an effect. See Fed.R.Civ.P. 82; advisory committee note 5 to Fed.R.Civ.P. 13. Accordingly, we affirm the district court’s dismissal of the Board’s counterclaim against the Tribe. III. APPLICABILITY AND LEGALITY OF THE CALIFORNIA CIGARETTE TAX There is no dispute between the parties that, in the absence of express con gressional authorization, direct state taxation of tribal property or the income of reservation Indians is preempted by the applicable federal law that creates the reservation. See Bryan v. Itasca County, 426 U.S. 373, 376-77, 96 S.Ct. 2102, 2105-06, 48 L.Ed.2d 710 (1976); Moe v. Confederated Salish and Kootenai Tribes of the Flathead Reservation, 425 U.S. 463, 480-82, 96 S.Ct. 1634, 1644-46, 48 L.Ed.2d 96 (1976); McClanahan v. State Tax Commission, 411 U.S. 164, 179-81, 93 S.Ct. 1257," }, { "docid": "15513137", "title": "", "text": "the tribes retain their existing sovereign powers. In sum, Indian tribes still possess those aspects of sovereignty not withdrawn by treaty or statute, or by implication as a necessary result of their dependent status. (Emphasis added). Oliphant v. Suguamish Indian Tribe, 435 U.S. 191, 98 S.Ct. 1011, 55 L.Ed.2d 209 (1978) and United States v. Wheeler, 435 U.S. 313, 315, 98 S.Ct. 1079, 1081, 55 L.Ed.2d 303 (1978). The tribe’s argument in Oliphant and Wheeler are criminal cases and that their holdings must be limited to criminal cases is unfounded. First, civil cases finding against the tribes claims have adopted the language of Oliphant and Wheeler. See Montana v. United States, -U.S. -, 101 S.Ct. 1245, 67 L.Ed.2d 493 (1981), and UNC Resources, Inc. v. Kee Joe Benally, 514 F.Supp. 358 (D.C.N.M.1981). Further, the real crux of those cases was not a criminal versus civil distinction but rather a distinction between internal matters and external matters. The Court in Wheeler stated at 435 U.S. 326, 98 S.Ct. 1087 that the areas in which “implicit” divestiture of sovereignty has been held to have occurred are those involving the relations between an Indian tribe and non-members of the tribe. The Court goes on to point out examples of implicit divestiture of sovereignty such as the inability of Indian Tribes to alienate land to non-Indians, either into commercial or government relations with foreign nations and try non-members in tribal courts. The Court in Wheeler concludes that “these limitations rest on the fact that the dependent status of Indian tribes within our territorial jurisdiction is necessarily inconsistent with their freedom independently to determine their external relations.” An even stronger statement of limitations on the tribes based on this distinction is: . . . [the] exercise of tribal power beyond what is necessary to protect tribal self government or to control internal relations is inconsistent with the dependent status of tribes and so cannot survive without express congressional delegation, Williams v. Lee, 358 U.S. 217, 79 S.Ct. 269, 3 L.Ed.2d 251 (1959); Mescalero Apache Tribe v. Jones, 411 U.S. 145, 93 S.Ct. 1267, 36 L.Ed.2d" }, { "docid": "19799370", "title": "", "text": "treaty, agreement, or statute with respect to hunting, trapping, or fishing or the control, licensing, or regulation thereof. 18 U.S.C. § 1162(b); 25 U.S.C. § 1321(b). Although Public Law 280 was not a grant of general civil regulatory control over Indians, see Bryan v. Itasca County, 426 U.S. 373, 385, 390, 96 S.Ct. 2102, 2109, 2111, 48 L.Ed.2d 710 (1976), under Public Law 280, states retain the regulatory jurisdiction over the on-reservation activities of non-Indians that they enjoyed prior to that Law (and absent the effect of the Enabling Acts, see infra). Fort Mojave Tribe v. County of San Bernardino, 543 F.2d 1253, 1257 (9th Cir. 1976). When Washington took jurisdiction over the Colville reservation, Congress released the state from its obligation, embodied in the Washington Enabling Act, 25 Stat. 676, 677 (1889), and Wash.Const. Art. XXVI, para. 2, to “forever disclaim all right and title” to the land of Indian tribes and concede that that land shall remain “under the absolute jurisdiction and control of the Congress of the United States.” See Washington v. Confederated Bands and Tribes of the Yakima Indian Nation, 439 U.S. 463, 479-88, 99 S.Ct. 740, 750, 58 L.Ed.2d 740 (1979). Arizona has not taken advantage of the opportunity to relieve itself from the essentially identical obligation that Congress imposed upon it, see Arizona Enabling Act, 36 Stat. 557, 569 (1910); Ariz.Const. Art. XX, para. 4. Thus we must examine the federal interest and intent manifested in the Arizona Enabling Act. When Arizona entered the Union, it expressly conditioned its entry on the premise that it would: [FJorever disclaim all right and title to ... all lands lying within said boundaries owned or held by any Indian or Indian tribes, the right or title to which shall have been acquired through or from the United States or any prior sovereignty, and that until the title of such Indian or Indian tribes shall have been extinguished the same shall be and remain subject to the disposition and under the absolute jurisdiction and control of the Congress of the United States. Arizona Enabling Act, 36 Stat. 557," }, { "docid": "13436157", "title": "", "text": "to assume civil jurisdiction over a non-Indian defendant whose allegedly tortious conduct occurred off the reservation. While the Supreme Court has not passed directly upon the question before this Court, it has long recognized that Indian tribes no longer possess the full attributes of sovereignty. Montana v. United States, - U.S. -, 101 S.Ct. 1245, 67 L.Ed.2d 493 (1981) (Montana); Williams v. Lee, 358 U.S. 217, 79 S.Ct. 269, 3 L.Ed.2d 251 (1959); United States v. Kagama, 118 U.S. 375, 6 S.Ct. 1109, 30 L.Ed. 228 (1886); Worchester v. Georgia, 6 Pet. 515, 8 L.Ed. 483 (1832). The tribes have been characterized as “quasi-sovereigns”, Fisher v. District Court, 424 U.S. 382, 390, 96 S.Ct. 943, 948, 47 L.Ed.2d 106 (1976) (per curiam), and it has been noted that the sovereignty of tribes is different from that of states. White Mountain Apache Tribe v. Bracker, 448 U.S. 136, 143, 100 S.Ct. 2578, 2583, 65 L.Ed.2d 665 (1980) (Bracker). See Washington v. Confederated Tribes of Colville, 447 U.S. 134, 165, 100 S.Ct. 2069, 2087, 65 L.Ed.2d 10 (1980) (Brennan, J., concurring in part and dissenting in part) (Colville). The Supreme Court has suggested the following analysis for ascertaining the limits of tribal sovereignty. The tribes retain those powers of self-government not voluntarily relinquished by treaty, not divested by Congressional enactment, and not inconsistent with the overriding sovereign interests of the United States. Oliphant v. Suquamish Indian Tribe, 435 U.S. 191, 208-09, 98 S.Ct. 1011, 1020-21, 55 L.Ed.2d 209 (1978) (Oliphant). See United States v. Wheeler, 435 U.S. 313, 98 S.Ct. 1079, 55 L.Ed.2d 303 (1978) (Wheeler). The tribes may also exercise those powers that would otherwise be inconsistent with overriding federal interests if Congress has explicitly delegated such powers to them. Montana, supra, 101 S.Ct. at 1257. See Mescalero Apache Tribe v. Jones, 411 U.S. 145, 148, 93 S.Ct. 1267, 1270, 36 L.Ed.2d 114 (1973). In applying this analysis to the present case the Court does not find anything in the relevant treaties which would support the proposition that the Navajo Tribe has explicitly relinquished by treaty civil jurisdiction over non-Indians. Cf." }, { "docid": "14447399", "title": "", "text": "that the district court was not obligated to hear the case. Section 1355 only grants the district court original jurisdiction “exclusive of the courts of the States,” not exclusive of all other courts that would otherwise have had jurisdiction. Since a tribal court is not a state court, we hold that it does not fall within the exclusive jurisdiction provision of section 1355. Indian nations and the federal government are dual sovereigns. “Indian tribes still possess those aspects of sovereignty not withdrawn by treaty or statute, or by implication as a necessary result of their dependent status.” United States v. Wheeler, 435 U.S. 313, 323, 98 S.Ct. 1079, 1086, 55 L.Ed.2d 303 (1978); see also Oliphant v. Suquamish Indian Tribe, 435 U.S. 191, 98 S.Ct. 1011, 55 L.Ed.2d 209 (1978). “[Tjribal sovereignty furnishes the backdrop against which all federal Indian laws are to be read.” F. Cohen, Handbook of Federal Indian Law 232 (1982 ed.); see, e.g., Santa Clara Pueblo v. Martinez, 436 U.S. 49, 71, 98 S.Ct. 1670, 1683, 56 L.Ed.2d 106 (1978); McClanahan v. Arizona State Tax Comm’n, 411 U.S. 164, 172-73, 93 S.Ct. 1257, 1262, 36 L.Ed.2d 129 (1973). Although Congress has plenary power to define the jurisdiction of tribal courts, see Escondido Mut. Water Co. v. La Jolla, et al. Bands of Mission Indians, 466 U.S. 765, 788 n. 30, 104 S.Ct. 2105, 2118 n. 30, 80 L.Ed.2d 753 (1984); Rice v. Rehner, 463 U.S. 713, 719, 103 S.Ct. 3291, 3295, 77 L.Ed.2d 961 (1983); White Mountain Apache Tribe v. Bracker, 448 U.S. 136, 143, 100 S.Ct. 2578, 2583, 65 L.Ed.2d 665 (1980), it did not exercise that power, when it drafted section 1355; to preclude concurrent jurisdiction in the.tribal court. Since section 1355 does not give the federal courts exclusive jurisdiction over this case,- the district court did not make the jurisdictional error that the Government alleges. If it had, that error would have automatically constituted an abuse of discretion and would have ended our inquiry. Since no such error was made, however, we must now determine whether the district court abused its discretion by" }, { "docid": "12133305", "title": "", "text": "being a traditional tribal activity, the Court rejected the application of the principles of Rice v. Rehner, 463 U.S. 713, 103 S.Ct. 3291, 77 L.Ed.2d 961 (1983), to Indian bingo. Cabazon, 107 S.Ct. at 1094. In contrast to the regulation of liquor at issue in Rice, current federal policy promotes Indian bingo, and state regulation is preempted even if it is not a traditional tribal activity. Moreover, as the lower court in Cabazon concluded, we believe that the State’s focus is too narrow. See Cabazon Band of Mission Indians v. County of Riverside, 783 F.2d 900, 906 (9th Cir.1986), affd, — U.S. -, 107 S.Ct. 1083, 94 L.Ed.2d 244 (1987). “The focus in determining whether a tribal tradition exists should instead be on whether the tribe is engaged in a traditional governmental function, not whether it historically engaged in a particular activity. The Tribes in this case are engaged in the traditional governmental function of raising revenue. They are thereby exercising their inherent sovereign governmental authority.” Id. In the present case, we also note that at trial the Tribe produced evidence that the Creek Nation in fact historically did regulate gambling. See rec., vol. II, at 100 (testimony of Rennard Strickland). The Court in Cabazon rejected the argument that the Tribe was marketing an exemption from state gambling laws, and distinguished Washington v. Confederated Tribes of the Colville Indian Reservation, 447 U.S. 134, 100 S.Ct. 2069, 65 L.Ed.2d 10 (1980), as follows: “In [<Colville, id. at 155, 100 S.Ct. at 2082], we held that the State could tax cigarettes sold by tribal smokeshops to non-Indians, even though it would eliminate their competitive advantage and substantially reduce revenues used to provide tribal services, because the Tribes had no right ‘to market an exemption from state taxation to persons who would normally do their business elsewhere.’ We stated that ‘[i]t is painfully apparent that the value marketed by the smokeshops to persons coming from outside is not generated on the reservations by activities in which the Tribes have a significant interest.’ Ibid. Here, however, the Tribes are not merely importing a product" }, { "docid": "12763747", "title": "", "text": "that derive from inherent sovereignty would perhaps best be enforced through criminal sanctions. However, the Oliphant Court clearly did not intend to end all traditional tribal authority, including, for example, the taxing power-a power this court has recently reaffirmed. See Merrion v. Jicarilla Apache Tribe, 617 F.2d 537 (10th Cir. 1980) (en banc). In fact, the Supreme Court has recognized the limited nature of the Oliphant holding. See Washington v. Confederated Tribes of the Colville Indian Reservation, - U.S. -, -, 100 S.Ct. 2069, 2081, 65 L.Ed.2d 10 (1980). Many regulatory schemes, at all levels of government, exist without criminal sanctions for enforcement purposes. New Mexico itself relies in part on civil sanctions in its hunting and fishing enforcement scheme. See, e. g., N.M.Stat.Ann. § 17-2-26 (1978). Although the Tribe may not assert criminal jurisdiction over non-members, the Supreme Court has at no time denied the power of an Indian tribe to assert its civil powers. For example, “[t]ribal courts have repeatedly been recognized as appropriate forums for the exclusive adjudication of disputes affecting important personal and property interests of both Indians and non-Indians.” Santa Clara Pueblo v. Martinez, 436 U.S. 49, 65, 98 S.Ct. 1670, 1681, 56 L.Ed.2d 106 (1978). See also Williams v. Lee, 358 U.S. 217, 79 S.Ct. 269, 3 L.Ed.2d 251 (1959). There is no inconsistency in the existence of tribal regulatory power without the availability of criminal sanctions. Cf. United States v. Montana, 604 F.2d 1162, 1165 (9th Cir. 1979), cert. grant ed, 445 U.S. 960, 100 S.Ct. 1645, 64 L.Ed.2d 234 (1980). Included in the Tribe’s unquestioned authority is the power to expel those who violate tribal ordinances on the reservation. See Quechan Tribe of Indians v. Rowe, 531 F.2d 408, 411 (9th Cir. 1976). We reject the State’s assertion that we must imply a divestiture of tribal sovereignty in any area in which the Tribe becomes involved with non-members. The Supreme Court has noted that “[t]he areas in which . . . implicit divestiture of sovereignty has been held to have occurred are those involving the relations between an Indian tribe and nonmembers" }, { "docid": "16616749", "title": "", "text": "tribal immunity should be abandoned or narrowed because immunity impermissibly burdens the administration of state tax laws and because tribal businesses have become so far removed from traditional tribal interests that immunity “no longer makes sense in this context”); see also Santa Clara, Pueblo, 436 U.S. at 58, 64, 98 S.Ct. 1670 (refusing to find waiver of tribal immunity or creation of federal cause of action against tribal officer, despite recognizing that allowing a federal suit would be useful in securing compliance with substantive provisions of the ICRA). 4. Overriding National Interests The UDC also argues that allowing the Tribe to assert immunity in an action such as this would contradict the overriding “national interest in seeing that the property over which the Secretary of the Interior has trust responsibility [i.e., the indivisible assets] is managed according to the scheme set forth by Congress in the [UPA].” In Washington v. Confederated Tribes of Colville Indian Reservation (hereinafter “Colville ”), 447 U.S. 134, 100 S.Ct. 2069, 65 L.Ed.2d 10 (1980), the Supreme Court stated: This Court has found ... a divestiture [of tribal powers] in cases where the exercise of tribal sovereignty would be inconsistent with the overriding interests of the National Government, as when the tribes seek to engage in foreign relations, alienate their lands to non-Indians without federal consent, or prosecute non-Indians in tribal courts which do not accord the full protections of the Bill of Rights. Id. at 153-54, 100 S.Ct. 2069; see also United States v. Wheeler, 435 U.S. 313, 326, 98 S.Ct. 1079, 55 L.Ed.2d 303 (1978) (describing areas in which “implicit divestiture of sovereignty has been held to have occurred”). Relying on Colville, the district court stated that “to allow the Ute Tribe to assert sovereign immunity in this action would contradict the overriding national interest of ensuring that federal trust property is managed in an orderly manner according to the joint scheme set forth by Congress in the UPA.” Ute Distrib. Corp., 934 F.Supp. at 1310. The UDC argues that, in light of this alleged overriding national interest, the Tribe’s immunity must be divested." }, { "docid": "18790321", "title": "", "text": "it was disposing of the entire case and no useful purpose would be served by dismissal, we may exercise our discretion and hear the appeal.”) III. State Authority to Tax and Regulate Tribal Liquor Sales The tribes appear to cha~1enge the state’s authority to regulate or tax tribal liquor sales to non-tribal members. This challenge must fail because tribal sovereignty is not infringed. See Rice v. Rehner, 463 U.S. 713, 720, 103 S.Ct. 3291, 3296, 77 L.Ed.2d 961 (1983) (state licensing requirements for tribal liquor sales to non-Indians do not infringe upon tribal sovereignty); Washington v. Confederated Tribes of the Colville Indian Reservation, 447 U.S. 134, 151, 100 S.Ct. 2069, 2080, 65 L.Ed.2d 10 (1980) (taxation of sales to non-Indians does not “contravene the principle of tribal self-government”); Moe v. Confederated Salish and Kootenai Tribes of the Flathead Reservation, 425 U.S. 463, 96 S.Ct. 1634, 48 L.Ed.2d 96 (1976) (state may impose non-diseriminatory tax on tribal sales to non-Indian customers and may require tribal retailer to enforce and collect the tax). In Rice, the Court upheld California’s liquor licensing and distribution statutes as applied to tribal liquor sales. The Court concluded that tribal sovereignty interests were implicated only as to the sale of liquor to tribal members. Id., 463 U.S. at 721, 103 S.Ct. at 3296. Here, the Board is not attempting to collect taxes on tribal liquor sales to tribal members. The tribes’ attempt to challenge the tax as applied to non-Indians is without merit. The district court properly disposed of this taxation issue by summary judgment. The only basis for challenging the state’s regulation of tribal liquor sales is that it constitutes a direct burden on tribal members or the operation of tribal government. That challenge also fails. The Court in Rice employed a “backdrop” analysis informed by historical notions of tribal sovereignty and found that “tradition simply has not recognized a sovereign immunity or inherent authority in favor of liquor regulation by Indians.” Id. at 722, 103 S.Ct. at 3297. In addition, state jurisdiction over the use and distribution of alcoholic beverages in Indian country arises from" }, { "docid": "18790320", "title": "", "text": "review of a judgment which failed to dispose of all claims. Here, the district court apparently believed that its ruling on the state law issue as to tribal vendor agreements obviated the need to reach the federal constitutional claims. This view is consistent with the well-established rule that state issues should be decided first and where state claims are dispositive, fed eral questions need not be reached. Siler v. Louisville & Nashville R. Co., 213 U.S. 175, 193, 29 S.Ct. 451, 455, 53 L.Ed. 753 (1909). We construe the district court’s judgment as an attempt to dispose of all claims in the action, and we find that no practical benefits would accrue from a dismissal for lack of appellate jurisdiction. See Hoohuli v. Ariyoshi, 741 F.2d 1169, 1171 n. 1 (9th Cir.1984) (“If it appears that the district court intended the dismissal to dispose of the action, it may be considered final and appealable.”); Wahkiakum Band of Chinook Indians v. Bateman, 655 F.2d 176, 177 n. 1 (9th Cir.1981) (“[Wjhere ... the trial court believed it was disposing of the entire case and no useful purpose would be served by dismissal, we may exercise our discretion and hear the appeal.”) III. State Authority to Tax and Regulate Tribal Liquor Sales The tribes appear to cha~1enge the state’s authority to regulate or tax tribal liquor sales to non-tribal members. This challenge must fail because tribal sovereignty is not infringed. See Rice v. Rehner, 463 U.S. 713, 720, 103 S.Ct. 3291, 3296, 77 L.Ed.2d 961 (1983) (state licensing requirements for tribal liquor sales to non-Indians do not infringe upon tribal sovereignty); Washington v. Confederated Tribes of the Colville Indian Reservation, 447 U.S. 134, 151, 100 S.Ct. 2069, 2080, 65 L.Ed.2d 10 (1980) (taxation of sales to non-Indians does not “contravene the principle of tribal self-government”); Moe v. Confederated Salish and Kootenai Tribes of the Flathead Reservation, 425 U.S. 463, 96 S.Ct. 1634, 48 L.Ed.2d 96 (1976) (state may impose non-diseriminatory tax on tribal sales to non-Indian customers and may require tribal retailer to enforce and collect the tax). In Rice, the Court" }, { "docid": "18016012", "title": "", "text": "U.S. Const, amend. XI. . The Freedmen make a similar error in arguing that the \"overriding interest” of the United States implicitly abrogates tribal sovereign immunity. Freedmen's Br. at 9-15 (citing Wheeler, 435 U.S. at 323, 98 S.Ct. 1079; Oli-phant v. Suquamish Indian Tribe, 435 U.S. 191, 209-10, 98 S.Ct. 1011, 55 L.Ed.2d 209 (1978); Washington v. Confederated Tribes of ipe Colville Indian Reservation, 447 U.S. 134, 153, 100 S.Ct. 2069, 65 L.Ed.2d 10 (1980)). The cases cited speak to implicit limitations on tribal sovereignty and have nothing to do with tribal sovereign immunity, which is not subject to implicit abrogation. Santa Clara Pueblo, 436 U.S. at 58, 98 S.Ct. 1670. . For examples of statutes that satisfy the abrogation standard, see Cohen’s Handbook, § 7.05[l][b] (citing, inter alia, the Indian Depredation Act, 26 Stat. 851 (1891) (conferring jurisdiction upon Court of Claims to adjudicate \"AH claims for property of citizens of the United States taken or destroyed by Indians belonging to any band, tribe, or nation, in amity with the United States, without just cause or provocation on the part of the owner or agent in charge, and not returned or paid for”); the ICRA’s habeas corpus provision, 25 U.S.C. § 1303 (\"The privilege of the writ of habeas corpus shall be available to any person, in a court of the United States, to test the legality of his detention by order of an Indian tribe.”); and the Indian Gaming Regulatory Act, 25 U.S.C. § 2710(d)(7)(A)(ii) (\"The United States district courts shall have jurisdiction over ... any cause of action initiated by a State or Indian tribe to enjoin a class III gaming activity located on Indian lands and conducted in violation of any Tribal-State compact....”)). . The tribe quotes two cases with similar language. See Gordon, 373 U.S. at 58, 83 S.Ct. 1052 (\"The general rule is that relief sought nominally against an officer is in fact against the sovereign if the decree would operate against the latter. Here the order requested would require the [federal officer's] official affirmative action, affect the public administration of government agencies and" }, { "docid": "4466776", "title": "", "text": "reservation. We have been unable to find any decisions that squarely address this issue. We therefore begin our analysis by turning to well-established principles of Indian treaty interpretation and Indian property rights for guidance. Foremost among these is the principle that “the treaty is not a grant of rights to the Indians, but a grant of rights from them — a reservation of those not granted.” United States v. Winans, 198 U.S. 371, 381, 25 S.Ct. 662, 664, 49 L.Ed. 1089 (1905); accord Washington v. Fishing Vessel Ass’n, 443 U.S. 658, 678, 680-81, 99 S.Ct. 3055, 3070-71, 3071-72, 61 L.Ed.2d 823 (1979); United States v. Wheeler, 435 U.S. 313, 327 n. 24, 98 S.Ct. 1079, 1088 n. 24, 55 L.Ed.2d 303 (1978). Further, Indian treaties should be construed as the tribes would have understood them. Choctaw Nation v. Oklahoma, 397 U.S. 620, 631, 90 S.Ct. 1328, 1334-35, 25 L.Ed.2d 615 (1970); United States v. Top Sky, 547 F.2d 486, 487 (9th Cir.1976); Kimball I, 493 F.2d at 566 & n. 7 (treaty construed as Indians would have understood it given practices and customs of tribe at time treaty was negotiated); see also Worcester v. Georgia, 31 U.S. (6 Pet.) 515, 551-54, 8 L.Ed. 483 (1832). And any ambiguity in a treaty must be resolved in favor of the Indians. Oliphant v. Suquamish Indian Tribe, 435 U.S. 191, 208 n. 17, 98 S.Ct. 1011, 1020 n. 17, 55 L.Ed.2d 209 (1978); Bryan v. Itasca County, 426 U.S. 373, 392, 96 S.Ct. 2102, 2112-13, 48 L.Ed.2d 710 (1976); Confederated Salish & Kootenai Tribes v. Namen, 665 F.2d 951, 962 (9th Cir.), cert. denied, 459 U.S. 977, 103 S.Ct. 314, 74 L.Ed.2d 291 (1982). A corollary of these principles, also recognized by the Supreme Court, is that when a tribe and the Government negotiate a treaty, the tribe retains all rights not expressly ceded to the Government in the treaty so long as the rights retained are consistent with the tribe’s sovereign dependent status. See Oliphant v. Suquamish Indian Tribe, 435 U.S. at 208, 98 S.Ct. at 1020-21; United States v. Ahtanum Irrigation" }, { "docid": "10762830", "title": "", "text": "Williams v. Lee, 358 U.S. 217, 79 S.Ct. 269, 3 L.Ed.2d 251 (1958), that state action must not infringe on the rights of reservation Indians to govern themselves. Id. at 171-72, 93 S.Ct. at 1261-1262. Although the Court in McClanahan stated that tribal immunity from state taxation does not rest primarily on any inherent tribal sovereignty, we note that remnants of the sovereignty rationale are implicit in the holding of McClanahan in the form of certain presumptions. Direct state taxation of tribal property or the income of reservation Indians is presumed to be preempted, absent express congressional authorization. Bryan v. Itasca County, 426 U.S. 373, 376-77, 96 S.Ct. 2102, 2105-2106, 48 L.Ed.2d 710 (1976); Moe v. Confederated Salish & Kootenai Tribes, 425 U.S. 463, 475-81, 96 S.Ct. 1634, 1642-1645, 48 L.Ed.2d 96 (1976); Mescalero Apache Tribe v. Jones, 411 U.S. 145, 148, 93 S.Ct. 1267, 1270, 36 L.Ed.2d 114 (1973). In contrast, state taxation of non-Indian activities on the reservation can proceed without express congressional authorization, even if the taxation affects Indians in some way. See Washington v. Confederated Tribes of Colville, 447 U.S. 134, 148, 100 S.Ct. 2069, 2078, 65 L.Ed.2d 10 (1980). It is enough that such taxation does not conflict with federal statutes or treaties or interfere to an impermissible extent with the ability of the tribe to govern itself. In White Mountain Apache Tribe v. Bracker, 448 U.S. 136, 100 S.Ct. 2578, 65 L.Ed.2d 665 (1980), the Supreme Court discussed the principles of preemption to be applied in a case such as this. The Court noted that the test of whether a state law concerning Indians has been preempted is different from the test uséd to find federal preemption in other contexts. Id. at 140, 100 S.Ct. at 2582. The tradition of Indian independence from state control and the broad federal policies to the same end (the “backdrop” of Indian sovereignty described in McClanahan) color the way in which we view federal statutes and regulations affecting Indians. Id. The Court found that Congress intended broad preemptive effect to be accorded federal statutes and regulations when the" }, { "docid": "12763748", "title": "", "text": "personal and property interests of both Indians and non-Indians.” Santa Clara Pueblo v. Martinez, 436 U.S. 49, 65, 98 S.Ct. 1670, 1681, 56 L.Ed.2d 106 (1978). See also Williams v. Lee, 358 U.S. 217, 79 S.Ct. 269, 3 L.Ed.2d 251 (1959). There is no inconsistency in the existence of tribal regulatory power without the availability of criminal sanctions. Cf. United States v. Montana, 604 F.2d 1162, 1165 (9th Cir. 1979), cert. grant ed, 445 U.S. 960, 100 S.Ct. 1645, 64 L.Ed.2d 234 (1980). Included in the Tribe’s unquestioned authority is the power to expel those who violate tribal ordinances on the reservation. See Quechan Tribe of Indians v. Rowe, 531 F.2d 408, 411 (9th Cir. 1976). We reject the State’s assertion that we must imply a divestiture of tribal sovereignty in any area in which the Tribe becomes involved with non-members. The Supreme Court has noted that “[t]he areas in which . . . implicit divestiture of sovereignty has been held to have occurred are those involving the relations between an Indian tribe and nonmembers of the tribe,” United States v. Wheeler, 435 U.S. 313, 326, 98 S.Ct. 1079, 1087, 55 L.Ed.2d 303 (1978) , but the Court did not mean that sovereignty has necessarily been divested whenever a tribe’s external relations are involved. The divestiture found in Oliphant is of a very special sort, and “[i]n most respects the Oliphant Court’s rationale does not apply to noncriminal cases.” Collins, Implied Limitations on the Jurisdiction of Indian Tribes, 54 Wash.L.Rev. 479, 508 (1979). See Note, Balancing the Interests in Taxation of Non-Indian Activities on Indian Lands, 64 Iowa L.Rev. 1459, 1467-69 (1979). Even if tribal civil sanctions are not sufficient to provide efficient wildlife regulation, the criminal authority of the United States under 18 U.S.C. § 1165 could be interpreted broadly enough to fill much of any enforcement vacuum. When a nonmember violates, for example, a tribal bag limit, he can be considered to have gone upon tribal land “without lawful authority or permission.” His permission to enter was conditioned upon his observance of tribal game regulations. The scienter element" }, { "docid": "22210250", "title": "", "text": "Indian retailers on reservations. Well-established Supreme Court precedent prohibits states from taxing Indian reservation lands or Indian income from activities carried on within the boundaries of the reservation absent congressional consent. McClanahan v. Arizona State Tax. Comm’n, 411 U.S. 164, 93 S.Ct. 1257, 36 L.Ed.2d 129 (1973); Mescalero Apache Tribe v. Jones, 411 U.S. 145, 148, 93 S.Ct. 1267, 1270, 36 L.Ed.2d 114 (1973); Moe v. Salish and Kootenai Tribes, 425 U.S. 463, 475-81, 96 S.Ct. 1634, 1642-45, 48 L.Ed.2d 96 (1976). However, similarly well established Supreme Court precedent permits states to require that Indian retailers on reservations collect and remit sales tax earned on sales made to non-Indians or to Indians who are not members of the tribe governing the reservation. See Moe, 425 U.S. at 481-83, 96 S.Ct. at 1645-46 (holding that Montana could require Indians who sold cigarettes to non-tribal members to add the state’s tax to the sale price of the cigarettes and thereby aid the state’s collection and enforcement of the tax); Oklahoma Tax Comm’n v. Potawatomi Tribe, 498 U.S. 505, 512-13, 111 S.Ct. 905, 910-11, 112 L.Ed.2d 1112 (1991) (holding that states have authority to tax sales of cigarettes to nonmembers of the tribe); Washington v. Confederated Tribes of the Colville Indian Reservation, 447 U.S. 134, 159, 161-62, 100 S.Ct. 2069, 2084, 65 L.Ed.2d 10 (1980) (holding that state could require Indian tribe to affix tax stamps purchased from the state to individual packages of cigarettes prior to the time of sale to nonmembers of the tribe and that state has power off the reservation to seize unstamped cigarettes as contraband). Accordingly, federal law does not excuse Kaul from following Kansas tax provisions concerning the sale of cigarettes to nonmembers of the Prairie Band Potawatomi Tribe. We therefore now turn to the issue of whether Kansas state law exempts Kaul from following the Kansas tax statute when sales are made to nonmember purchasers. We first note that neither K.S.A. § 79-3615(g) nor K.S.A. § 79-3321(a) on its face exempts Indian retailers from its reach. Regarding K.S.A. § 79-3615; the provision which enumerates the type" }, { "docid": "10762829", "title": "", "text": "that, in recent years, “the trend has been away from the idea of inherent Indian sovereignty as a bar to state jurisdiction and toward reliance on federal pre-emption.” 411 U.S. at 172, 93 S.Ct. at 1262. The Court noted, however, that it would be a vast oversimplification to say that nothing is left of the doctrine of Indian sovereignty. Id. at 170, 93 S.Ct. at 1261. The doctrine remains relevant as a “backdrop against which the applicable treaties and federal statutes must be read.” Id. at 172, 93 S.Ct. at 1262. The Court made the further observation that because the federal treaties and statutes in almost all cases do define the boundaries of federal and state jurisdiction, the extent of federal preemption and residual Indian sovereignty in the absence of federal legislation or treaty is essentially moot. Id. at 172 n.8, 93 S.Ct. at 1262 n.8. Finally, the Court in McClanahan stated that, if the state action is not preempted by federal legislation or treaty, the state need only satisfy the test laid down in Williams v. Lee, 358 U.S. 217, 79 S.Ct. 269, 3 L.Ed.2d 251 (1958), that state action must not infringe on the rights of reservation Indians to govern themselves. Id. at 171-72, 93 S.Ct. at 1261-1262. Although the Court in McClanahan stated that tribal immunity from state taxation does not rest primarily on any inherent tribal sovereignty, we note that remnants of the sovereignty rationale are implicit in the holding of McClanahan in the form of certain presumptions. Direct state taxation of tribal property or the income of reservation Indians is presumed to be preempted, absent express congressional authorization. Bryan v. Itasca County, 426 U.S. 373, 376-77, 96 S.Ct. 2102, 2105-2106, 48 L.Ed.2d 710 (1976); Moe v. Confederated Salish & Kootenai Tribes, 425 U.S. 463, 475-81, 96 S.Ct. 1634, 1642-1645, 48 L.Ed.2d 96 (1976); Mescalero Apache Tribe v. Jones, 411 U.S. 145, 148, 93 S.Ct. 1267, 1270, 36 L.Ed.2d 114 (1973). In contrast, state taxation of non-Indian activities on the reservation can proceed without express congressional authorization, even if the taxation affects Indians in some way." }, { "docid": "13636678", "title": "", "text": "cannot find that a rule promulgated pursuant to this statute was intended impermissibly to abridge the Indian tribes’ substantive right to immunity from suit. Nor can we read Rule 13(a) in isolation and extend federal jurisdiction despite the repeated specification that the rules are not intended to have such an effect. See Fed.R.Civ.P. 82; advisory committee note 5 to Fed.R.Civ.P. 13. Accordingly, we affirm the district court’s dismissal of the Board’s counterclaim against the Tribe. III. APPLICABILITY AND LEGALITY OF THE CALIFORNIA CIGARETTE TAX There is no dispute between the parties that, in the absence of express con gressional authorization, direct state taxation of tribal property or the income of reservation Indians is preempted by the applicable federal law that creates the reservation. See Bryan v. Itasca County, 426 U.S. 373, 376-77, 96 S.Ct. 2102, 2105-06, 48 L.Ed.2d 710 (1976); Moe v. Confederated Salish and Kootenai Tribes of the Flathead Reservation, 425 U.S. 463, 480-82, 96 S.Ct. 1634, 1644-46, 48 L.Ed.2d 96 (1976); McClanahan v. State Tax Commission, 411 U.S. 164, 179-81, 93 S.Ct. 1257, 1266-67, 36 L.Ed.2d 129 (1973). However, when a state requires that a tax be passed on to the purchaser and collected by the seller, the legal incidence of the tax falls upon the purchaser. United States v. Tax Commission, 421 U.S. 599, 608, 95 S.Ct. 1872, 1878, 44 L.Ed.2d 404 (1975). If the incidence of a tax falls upon non-Indian purchasers, the tax may, in some cases, be permissible. See, e.g., Washington v. Confederated Tribes of the Colville Indian Reservation, 447 U.S. 134, 151, 100 S.Ct. 2069, 2080, 65 L.Ed.2d 10 (1980); Moe, 425 U.S. at 483, 96 S.Ct. at 1646. The district court determined that the Chemehuevi Tribe is a “person,” as defined by section 30010 of the Revenue & Taxation Code, Cal.Rev. & Tax.Code § 30010 (West 1979), and may thus be a “distributor,” as defined by section 30011 of the same code. Distributors may be subject to the tax authorized by section 30101 of the Code or the collecting requirements specified in section 30108 of the Code. The court then determined that" }, { "docid": "12763725", "title": "", "text": "whether the applicable treaty and federal statutes, read against the “backdrop” of Indian sovereignty, preempt exercises of state power. See McClanahan v. Arizona State Tax Commission, 411 U.S. 164, 172, 93 S.Ct. 1257, 1262, 36 L.Ed.2d 129 (1973); Mescalero Apache Tribe v. Jones, 411 U.S. 145, 148, 93 S.Ct. 1267, 1270, 36 L.Ed.2d 114 (1973); Warren Trading Post Co. v. Arizona Tax Commission, 380 U.S. 685, 690-91, 85 S.Ct. 1242, 1245-46, 14 L.Ed.2d 165 (1965). Under a standard of construction followed from the time of the Marshall Court, we must construe the applicable treaty and statutes liberally in order to further Indian interests. See, e. g., Bryan v. Itasca County, 426 U.S. 373, 392, 96 S.Ct. 2102, 2112, 48 L.Ed.2d 710 (1976); McClanahan v. Arizona State Tax Commission, 411 U.S. at 174, 93 S.Ct. at 1263; Squire v. Capoeman, 351 U.S. 1, 6-7, 76 S.Ct. 611, 614-15, 100 L.Ed. 883 (1956); Carpenter v. Shaw, 280 U.S. 363, 366-67, 50 S.Ct. 121, 122-23, 74 L.Ed. 478 (1930); Worcester v. Georgia, 31 U.S. (6 Pet.) 515, 582, 8 L.Ed. 483 (1832). The sovereign powers of the Tribe in wildlife management are so pervasive that sovereignty here moves from a mere backdrop into a leading role on the litigational stage. The historical relationship between Indian tribes, their lands, and the wild game thereon has of necessity been one of great interdependence. Access to and control of wildlife was “not much less necessary to the existence of the Indians than the atmosphere they breathed.” United States v. Winans, 198 U.S. 371, 381, 25 S.Ct. 662, 664, 49 L.Ed. 1089 (1905). After a careful, thoughtful analysis, the district court properly determined that, before the signing of the Treaty with the Apaches, July 1, 1852, 10 Stat. 979 (1852), the Tribe “had inherent and complete authority to control the fish and game found within the confines of the tribal territory.” Record, vol. 1, at 208. Since the treaty is “not a grant of rights to the Indians, but a grant of rights from them-a reservation of those not granted,” id. (quoting United States v. Winans, 198" }, { "docid": "13436161", "title": "", "text": "of the Supreme Court’s recent Montana opinion. Montana, supra, 101 S.Ct. 1245. There the Court stated: “Though Oliphant only determined inherent tribal authority in criminal matters, the principles on which it relied support the general proposition that the inherent sovereign powers of an Indian tribe do not extend to the activities of nonmembers of the tribe.” Id. at 1258 (footnote omitted). The Court in Montana further supported its “general proposition” that tribes do not have sovereign powers over non-Indians with the following interpretation, through its emphasis of certain phrases, of its prior opinion in United States v. Wheeler: The [ Wheeler] Court distinguished between those powers retained by the tribes and those divested: The areas in which such implicit divestiture of sovereignty has been held to have occurred are those involving the relations between an Indian tribe and nonmembers of the tribe .... These limitations rest on the fact that the dependent status of Indian tribes within our territorial jurisdiction is necessarily inconsistent with their freedom independently to determine their external relations. But the powers of self-government, including the power to prescribe and enforce internal criminal laws, are of a different type. They involve only the relations among members of a tribe. Thus, they are not such powers as would necessarily be lost by virtue of a tribe’s dependent status. 101 S.Ct. at 1257, quoting Wheeler, supra, 435 U.S. at 326, 98 S.Ct. at 1087 (emphasis added by Court in Montana). The Supreme Court recently noted that it has “repeatedly emphasized that there is a significant geographical component to tribal sovereignty.” Bracker, supra, 448 U.S. at 151, 100 S.Ct. at 2587. See Colville, supra, 447 U.S. at 166, 100 S.Ct. at 2088 (Brennan J., concurring in part and dissenting in part). Even more recently, in the Montana case, the Court concluded that the territorial sovereignty of a tribe does not even extend to all portions of the reservation as it held that the Crow Tribe could not regulate hunting and fishing by non-Indians on non-Indian lands within the reservation. Montana, supra, 101 S.Ct. 1245. Even though tribal regulation was limited" } ]

[ { "docid": "22312925", "title": "", "text": "ninety days after the alleged unlawful employment practice occurred . ” The filing here was not until long after any alleged June 1967 act took place. In sum, filing with the EEOC is a jurisdictional prerequisite to federal court consideration of a discrimination claim under Title VII, and the filing in the current case was not timely in regard to any alleged June 1967 act. For this reason, any action based on the 1967 claim should have been dismissed. II. The Alleged 1968 Incident: The district court found that in May 1968, as in 1967, economic conditions rather than sex discrimination caused Ms. East not to be hired. Specifically, the court found: “In 1968 it appears that only one welder was employed which commenced on April 6th of that year”. This finding is legally sufficient to hold for the defendant on this cause of action. No prima facie case of sex discrimination was established. The criteria which can be used in determining whether a prima facie case of discrimination under Title VII has been established were set out in McDonnell Douglas Corp. v. Green, 1973, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668: 1) that the complainant belongs to a group protected by Title VII; 2) that he applied and-was qualified for a job for which the employer was seeking applicants; 3) that, despite his qualifications, he was rejected; and 4) that, after his rejection, the position remained open and the employer continued to seek applicants from persons of complainant’s qualifications. The fourth prong of the McDonnell Douglas test indicates the fatal problem in East’s 1968 claim — “That, after his rejection, the position remained open”, McDonnell Douglas, supra, 411 U.S. at 802, 93 S.Ct. at 1824,—for no position was open at the time of East’s application and no position “remained” open. Rather, Romine was not doing any hiring at the time East applied and did no more hiring for at least the next six months. While the fact that no one was hired for a position after an applicant has been turned down does not in itself belie" } ]

[ { "docid": "23350128", "title": "", "text": "694 (5th Cir. 1974). Hiring the Project Director Plaintiff contends that, by transferring Robert Watts, a male, instead of promoting her to Project Director, defendant discriminated against her on account of sex. The elements of such cases are clear. In order to establish a prima facie case, plaintiff must show that (1) she belongs to a group protected by Title VII, (2) she applied for and was qualified for a job for which the employer was seeking applicants, (3) despite her qualifications she was rejected, and (4) after her rejection the position remained open and the employer continued to seek applicants among persons having plaintiff’s qualifications. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). These elements may differ, depending on the factual context. Id. at 802 n.13, 93 S.Ct. 1817. We believe plaintiff’s proof at trial clearly met the Green criteria. She is protected under Title VII from sex discrimination. She applied for the Project Director’s job several times and was considered for the job, and her proof that she was qualified received implicit support from defendant’s evidence. The employer rejected her and, after the position remained unfilled for several months, hired a male for the position. Defendant may refute plaintiff’s prima facie case by articulating a legitimate, nondiscriminatory reason for the rejection. Id. This court requires defendant to prove nondiscriminatory reasons by a preponderance of the evidence. Turner v. Texas Instruments, 555 F.2d 1251, 1255 (5th Cir. 1977). This holding is not inconsistent with Board of Trustees v. Sweeney, 439 U.S. 24, 99 S.Ct. 295, 58 L.Ed.2d 216 (1978), which merely stated that defendant is not required to prove absence of discriminatory motive. Our holding in Turner simply states the obvious: “articulating” a legitimate reason involves more than merely stating fictitious reasons; legally sufficient proof is needed before the trier of fact can find plaintiff’s proof rebutted. Turner, supra at 1255. In East v. Romine, Inc., 518 F.2d 332 (5th Cir. 1975), this court added another element to defendant’s rebuttal in disparate treatment cases: defendant must prove that those he hired" }, { "docid": "23305835", "title": "", "text": "v. Burdine, 450 U.S. 248, 257, 101 S.Ct. 1089, 1095, 67 L.Ed.2d 207 (1981) (Burdine). . The complainant in a Title VII trial must carry the initial burden under the statute of establishing a prima facie case of racial discrimination. This may be done by showing (i) that he belongs to a racial minority; (ii) that he applied and was qualified for a job for which the employer was seeking applicants; (iii) that, despite his qualifications, he was rejected; and (iv) that, after his rejection, the position remained open and the employer continued to seek applicants from persons of complainant’s qualifications. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 1824, 36 L.Ed.2d 668 (1973) (footnote omitted). . The Hilton does not join the St. Francis in this argument, but instead maintains that the district court’s findings on whether the plaintiff established the four factual McDonnell Douglas criteria, see Note 5, supra, cannot be disturbed unless clearly erroneous. The Hilton relies on our decision in McLean v. Phillips-Ramsey, Inc., 624 F.2d 70, 71 (9th Cir. 1980) (per curiam). As the following text makes clear, we agree. . See Note 5, supra. . In other recent employment discrimination cases we have failed to mention the appropriate standard of review for this issue. See, e.g., O’Brien v. Sky Chefs, Inc., 670 F.2d 864 (9th Cir. 1982); Nanty v. Barrows Co., 660 F.2d 1327 (9th Cir. 1981); Lynn v. Regents of the University of California, 656 F.2d 1337 (9th Cir. 1981); Correa v. Nampa School Dist. No. 131, 645 F.2d 814 (9th Cir. 1981). . Contreras v. City of Los Angeles, 656 F.2d 1267 (9th Cir. 1981), might also be read to support the use of the clearly erroneous standard, but the case actually applied the clearly erroneous standard only to factual inquiries. Even though we stated that “[w]e must first determine whether the district court’s finding that appellants failed to present a prima facie case of discrimination is clearly erroneous,” id. at 1272, we applied that standard only to the district judge’s ruling on the proper interpretation of the" }, { "docid": "2815536", "title": "", "text": "as an elementary school teacher when she first made application for that job in February 1972 and at all subsequent times; that DISD was seeking applicants for that job in February 1972 and at all subsequent times; that despite her qualifications, she was rejected; and that after her rejections, the position remained open and DISD continued to seek applications from persons with her qualifications. Finally, Ms. Panlilio alleged that the real reason for her rejections was her foreign national origin and that the reasons advanced by DISD for its failures to hire her were pretexts. The district court, however, concluded that Ms. Panlilio’s national origin was not a factor in the DISD’s decision not to hire her and thus that the school district had not unlawfully discriminated against her. In considering this determination on appeal, we must make an independent determination of the ultimate fact issue of discrimination, although in doing so we are bound by the district court’s findings of fact which are themselves not clearly erroneous, Danner v. United States Civil Serv. Com’n., 635 F.2d 427 (5th Cir. 1981). As the district court noted, the principles announced in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), govern disparate treatment cases under Title VII alleging discrimination on the basis of national origin. The plaintiff in a Title VII case must carry the initial burden under the statute of establishing a prima facie case of discrimination on the basis of national origin. This may be done by showing (i) that she is a person of foreign national origin; (ii) that she applied and was qualified for a job for which the employer was seeking applicants; (iii) that, despite her qualifications, she was rejected; and (iv) that, after her rejection, the position remained open and the employer continued to seek applicants from persons of the plaintiff’s qualifications. If the plaintiff proves a prima facie case of unlawful discrimination, the burden then shifts to the employer to articulate some legitimate non-discriminatory reason for the employment decision, McDonnell Douglas, 411 U.S. at 802, 93 S.Ct. at" }, { "docid": "18456983", "title": "", "text": "A. W. Rees, the superintendent, to fill the position temporarily until another secretary could be found. She worked in this capacity for two weeks, until Mr. David L. Harrison was selected for the post. During this two week period, Mrs. Saracini asked Mr. Rees for a permanent promotion to the position of secretary. Rees refused, stating that he had to have a man for the job. Mrs. Saracini filed a charge with the Equal Employment Opportunity Commission. A right to sue letter was issued, and this action commenced. Trial was had to the court on May 4-5, 1976. Burden of Proof In a Title VII suit the plaintiff has the initial burden of proof to establish a prima facie case of discrimination. This may be done by showing (i) that he belongs to a . . . minority; (ii) that he applied and was qualified for a job for which the employer was seeking applicants; (iii) that, despite his qualifications, he was rejected; and (iv) that, after his rejection, the position remained open and the employer continued to seek applicants from persons of complainant’s qualifications. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 1824, 36 L.Ed.2d 668 (1973); see also Gilmore v. Kansas City Terminal Ry. Co., 509 F.2d 48, 51 (8th Cir. 1975). Although originally articulated in a race discrimination case, these factors are also applicable to cases alleging discrimination based on sex. See, e. g., East v. Romine, Inc., 518 F.2d 332 (5th Cir. 1975). Once the plaintiff has established a prima facie case of discrimination, the burden shifts to the employer “to articulate some legitimate, nondiscriminatory reason for the employee’s rejection.” McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 1824, 36 L.Ed.2d 668 (1973). If the employer carries this burden, and rebuts the prima facie case, the burden then returns to the employee to demonstrate that the employer’s reasons for rejection were in fact a pretext for unlawful discrimination. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). The ultimate burden of" }, { "docid": "7042157", "title": "", "text": "victim of sex discrimination is based entirely on the TVA’s hiring of four males. On August 6, 1973, three male co-op participants were hired to fill SD-level jobs at Muscle Shoals. An SE-level job was filled by a male on February 5, 1974. Ray contends that employment of these men subjected her to “disparate treatment” which is expressly prohibited. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973); Furnco Construction Corp. v. Waters, 438 U.S. 567, 98 S.Ct. 2943, 57 L.Ed.2d 957 (1978). Under McDonnell Douglas, to establish a prima facie case of disparate treatment, Ray must prove: (1) that she belongs to a group protected by Title VII, (2) that she sought and was qualified for a job for which the employer was accepting applicants, (3) that despite her qualifications she was rejected, and (4) that after her rejection the position remained open and the employer continued to seek applicants among persons having plaintiff’s qualifications. Once the plaintiff establishes a prima facie case, the defendant is entitled to refute it by articulating a legitimate, nondiscriminatory reason for the hiring decision. Jefferies v. Harris Cty. Community Action Ass’n., 615 F.2d 1025 (5th Cir. 1980). Defendants must prove nondiscriminatory reasons by a preponderance of the evidence. Burdine v. Texas Dept. of Community Affairs, 608 F.2d 563 (5th Cir. 1979); Turner v. Texas Instruments, 555 F.2d 1251 (5th Cir. 1977). Adequate rebuttal of the plaintiff’s prima facie case does not automatically foreclose a finding of defendant’s liability; plaintiffs are given a fair opportunity to show that the explanation supplied by the employer is in fact a pretext for discrimination. McDonnell Douglas, 411 U.S. at 792, 93 S.Ct. at 1817; Jefferies, 615 F.2d at 1030. It would appear that Ray met her initial burden of establishing a prima facie case. She is protected by Title VII, applied for an SD or SE-level chemist’s job for which she was qualified, was rejected and while her application was on file, males were hired to fill the SD and SE-level jobs. However, the defendants shouldered their burden and rebutted Ray’s" }, { "docid": "4463202", "title": "", "text": "v. United States Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 542, 92 L.Ed. 746 (1948). Although discrimination vel non is essentially a question of fact it is, at the same time, the ultimate issue for resolution . . As such, a finding of discrimination or non-discrimination is a finding of ultimate fact. [Citations omitted.] In reviewing the district court’s findings, therefore, we will proceed to make an independent determination of appellant’s allegations of discrimination, though bound by findings of subsidiary fact which are themselves not clearly erroneous. Also ... we must determine whether there are requisite subsidiary facts to undergird the ultimate facts. Causey v. Ford Motor Co., 516 F.2d 416, 420 (5th Cir., 1975); See also Wade v. Mississippi Cooperative Extension Service, 528 F.2d 508, 516 (5th Cir. 1976). In this manner, we now direct our attention to the claim before us, to ascertain whether under applicable law the district court was correct in its findings of nondiscrimination. The requirements for establishing a prima facie case of racial discrimination were enunciated by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). Plaintiff’s initial burden under Title VII is to show: (i) that he belongs to a racial minority; (ii) that he applied and was qualified for a job for which the employer was seeking applicants; (iii) that, despite his qualifications, he was rejected; and (iv) that after his rejection, the position remained open and the employer continued to seek applicants from persons of complainant’s qualifications. 411 U.S. at 802, 93 S.Ct. at 1824. Once the plaintiff establishes the above elements, the burden then shifts to the employer “to articulate some legitimate, nondiscriminatory reason” for the plaintiff’s rejection. However, the inquiry must not end there. Plaintiff may rebut by showing that defendant’s stated reason for rejection was in fact pretext. Id. Legg, Mason’s general qualifications for an applicant seeking a securities sales position were four: (1) minimum age of twenty-four; (2) college education, preferably a degree; (3) prior- sales experience or business background; and (4) long-term commitment to" }, { "docid": "8761540", "title": "", "text": "the District Court’s findings, therefore, we will proceed to make an independent determination of appellant’s allegations of discrimination, though bound by findings of subsidiary fact which are themselves not clearly erroneous. [W]e must [also] determine whether there are requisite subsidiary facts to undergird the ultimate facts.” Causey v. Ford Motor Co., 5 Cir., 1975, 516 F.2d 416, 420-21 [citation omitted]. In a nonclass claim of employment discrimination under Title VII, the plaintiff carries the initial burden of proving a prima facie case of discrimination. The elements of a prima facie case were delineated in McDonnell Douglas Corporation v. Green, 1973, 411 U.S. 792, 802, 93 S.Ct. 1817, 36 L.Ed.2d 668, 677: (i) the complainant must belong to a protected minority; (ii) must apply and be qualified for a job for which the employer is seeking applications; (iii) be rejected for the job; and (iv) the employer must then continue to seek applicants with the complainant’s qualifications. When a plaintiff meets these criteria, the burden shifts to the defendant to show, by a preponderance of the evidence, that it had legitimate, nondiscriminatory reasons for its decision. If the defendant can meet this burden, the plaintiff must then prove, by a preponderance of the evidence, that the articulated reason is a pretext for discrimination. McDonnell Douglas Corporation v. Green, supra, 411 U.S. at 802-804, 36 L.Ed.2d at 677-79; Turner v. Texas Instruments, Inc., 5 Cir., 1977, 555 F.2d 1251,1255. The District Court’s only finding of fact as to Parson’s claim is that “he was not qualified” for the position of foreman. For the reasons outlined below, this finding cannot stand and cannot serve as the basis for a Rule 41(b) dismissal. The District Court Judge offered no hints as to. the basis for his finding that Parson was not qualified for promotion to the position of foreman. We are simply unable to determine whether the Judge found sufficient subsidiary facts to under-gird the ultimate finding that the decision not to promote Parson was not racially motivated or taken in retaliation for his involvement in racial relations at the plant. It is therefore" }, { "docid": "8761539", "title": "", "text": "have made foreman and other salaried positions in a number of departments of the Chalmette Works.” [Appendix, Vol. I, at 25.] On this basis, the District Court Judge concluded that Kaiser had not discriminated against Parson. In reviewing the District Court’s findings of fact, we are mindful of our limited authority under the clearly erroneous standard of F.R.Civ.P. 52(a). However, we are equally mindful that the clearly erroneous standard does not apply to findings made under an erroneous view of controlling legal principles. United States v. Jacksonville Terminal Co., 5 Cir., 1971, 451 F.2d 418, 423-24, cert. denied, 1972, 406 U.S. 906, 92 S.Ct. 1607, 31 L.Ed.2d 815; Rowe v. General Motors Corp., 5 Cir., 1972, 457 F.2d 348, 356 n. 15. We are also careful in discrimination suits, where the elements of fact and law become particularly inter-meshed, of the distinction between findings of subsidiary fact and findings of ultimate fact. A finding of nondiscrimination is a finding of ultimate fact that can be re versed free of the clearly erroneous rule. “In reviewing the District Court’s findings, therefore, we will proceed to make an independent determination of appellant’s allegations of discrimination, though bound by findings of subsidiary fact which are themselves not clearly erroneous. [W]e must [also] determine whether there are requisite subsidiary facts to undergird the ultimate facts.” Causey v. Ford Motor Co., 5 Cir., 1975, 516 F.2d 416, 420-21 [citation omitted]. In a nonclass claim of employment discrimination under Title VII, the plaintiff carries the initial burden of proving a prima facie case of discrimination. The elements of a prima facie case were delineated in McDonnell Douglas Corporation v. Green, 1973, 411 U.S. 792, 802, 93 S.Ct. 1817, 36 L.Ed.2d 668, 677: (i) the complainant must belong to a protected minority; (ii) must apply and be qualified for a job for which the employer is seeking applications; (iii) be rejected for the job; and (iv) the employer must then continue to seek applicants with the complainant’s qualifications. When a plaintiff meets these criteria, the burden shifts to the defendant to show, by a preponderance of the" }, { "docid": "22850023", "title": "", "text": "Thom McAn, Inc. v. Miranda, 409 F.2d at 971-72, and (d) where the additional evidence was brief and inconsequential, Beaumont v. Morgan, 427 F.2d 667, 670 (1st Cir. 1970), are not applicable here. See 5A Moore’s Federal Practice ¶ 50.08 at 50-88 to -91 (1980). III. Were the District Court’s Findings as to Smith’s Title VII Claims of Discrimination on Grounds of Sex or Religion Clearly Erroneous? Title VII of the Civil Rights Act protects employees from various kinds of discrimination, particularly for our present purposes discrimination on grounds of sex or of religion. To prevail on a Title VII claim the employee must prove that he or she was a victim of unlawful discrimination. As we have previously discussed, in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), the Supreme Court set forth the general order and allocation of proof in a discrimination action brought by a private individual. To reiterate: The complainant in a Title VII trial must carry the initial burden under the statute of establishing a prima facie case of ... discrimination. This may be done by showing (i) that he belongs to a [protected class]; (ii) that he applied and was qualified for a job for which the employer was seeking applicants; (iii) that, despite his qualifications, he was rejected; and (iv) that, after his rejection, the position remained open and the employer continued to seek applicants from persons of complainant’s qualifications. Id. at 802, 93 S.Ct. at 1824. Due to factual differences among individual cases, the Supreme Court has acknowledged that all of the listed specifications set out in McDon nell Douglas might not be applicable to every case. Id. at 802 n.13, 93 S.Ct. at 1824 n.13: The facts necessarily will vary in Title VII cases, and the specification above of the prima facie proof required from respondent is not necessarily applicable in every respect to differing factual situations. Once the prima facie case has been established, the burden shifts to the employer “to articulate some legitimate, nondiscriminatory reason [for its action].” Id. at 802, 93" }, { "docid": "22817736", "title": "", "text": "by now familiar. To raise a prima facie case, the plaintiff must show (1) that he belongs to a racial minority; (2) that he applied and was qualified for a job for which the employer was seeking applicants; (3) that, despite his qualifications, he was rejected; and (4) that, after his rejection, the position remained open. The burden then shifts to the employer to show some legitimate, nondiscriminatory reason for the applicant’s rejection. The plaintiff is then afforded a fair opportunity to show that the employer’s stated reason is in fact a pretext. McDonnell Douglas Corp. v. Green, 1973, 422 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668; Furnco Construction Co. v. Waters, 1978, 438 U.S. 567, 98 S.Ct. 2943, 57 L.Ed.2d 957. This formula must not be applied mechanically, but flexibly, with a view toward the particular hiring procedures and factual situation presented. McDonnell Douglas, 411 U.S. at 802, 93 S.Ct. at 1824; Peters v. Jefferson Chemical Co., 5 Cir. 1975, 516 F.2d 447, 450. On appellate review, we are bound by the district court’s findings of credibility and of subsidiary fact unless they are clearly erroneous. The clear error standard, however, does not apply to the ultimate conclusion of discrimination or nondiscrimination. Williams v. Tallahassee Motors, Inc., 5 Cir. 1979, 607 F.2d 689, 690; East v. Romine, Inc., 5 Cir. 1975, 518 F.2d 332, 338-39; Causey v. Ford Motor Co., 5 Cir. 1975, 516 F.2d 416, 420-21. A. The PEER Case 1. Barbara Phillips. Barbara Phillips applied to the PEER Committee on July 12, 1974. She had interviews with John Hamilton, the Director of the Committee staff, and John Turcotte, a staff auditor. Both men testified that they were very favorably impressed with Phillips’s credentials, her manner, and her knowledge of PEER’S functions. At their request, she brought in a writing sample. The two men decided right away to hire Phillips, but they did not inform her of that. After the initial interview, Phillips was never told •that she was under serious consideration. Three weeks after their interview with her, Hamilton and Turcotte saw reports on television and" }, { "docid": "2815537", "title": "", "text": "635 F.2d 427 (5th Cir. 1981). As the district court noted, the principles announced in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), govern disparate treatment cases under Title VII alleging discrimination on the basis of national origin. The plaintiff in a Title VII case must carry the initial burden under the statute of establishing a prima facie case of discrimination on the basis of national origin. This may be done by showing (i) that she is a person of foreign national origin; (ii) that she applied and was qualified for a job for which the employer was seeking applicants; (iii) that, despite her qualifications, she was rejected; and (iv) that, after her rejection, the position remained open and the employer continued to seek applicants from persons of the plaintiff’s qualifications. If the plaintiff proves a prima facie case of unlawful discrimination, the burden then shifts to the employer to articulate some legitimate non-discriminatory reason for the employment decision, McDonnell Douglas, 411 U.S. at 802, 93 S.Ct. at 1824. This circuit held in Turner v. Texas Instruments, Inc., 555 F.2d 1251, 1255 (5th Cir. 1977), that the employer, in meeting the burden imposed by the second prong of the McDonnell Douglas inquiry, must prove by a preponderance of the evidence that legitimate non-discriminatory reasons existed for the employment decision challenged by the plaintiff. In East v. Romine, Inc., 518 F.2d 332, 339-40 (5th Cir. 1975), this circuit further defined the type of evidence the employer must put forth at this stage of a Title VII proceeding by requiring that the employer produce evidence of a comparative nature in rebutting the plaintiff’s prima facie ease. Romine required the defendant to show that the person hired or promoted in place of the plaintiff was more qualified than the plaintiff for the position. Both the quantity and the quality of the evidence this circuit has previously required of the defendant in the second stage of a Title VII case were disapproved by the Supreme Court in its review of our decision in Burdine v. Texas Department" }, { "docid": "22826425", "title": "", "text": "relies, provides: It shall be an unlawful employment practice for an employer— (1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin; or (2) to limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual’s race, color, religion, sex, or national origin. The starting point when a Title VII plaintiff alleges disparate individual treatment under facially neutral policies is the Supreme Court’s analysis in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 1824, 36 L.Ed.2d 668 (1973), which, although a case of alleged racial discrimination, applies equally, with appropriate changes in terms, to discrimination because of sex: The complainant in a Title VII trial must carry the initial burden of establishing a prima facie case of racial discrimination. This may be done by showing (i) that he belongs to a racial minority; (ii) that he applied and was qualified for a job for which the employer was seeking applicants; (iii) that, despite his qualifications, he was rejected; and (iv) that, after his rejection, the position remained open and the employer continued to seek applicants from persons of complainant’s qualifications. [Footnote omitted.] This extract says nothing about the need to prove discriminatory intent; the evident thought was that proof of the four elements warranted an inference of such intent unless the defendant presented at least some evidence in rebuttal. Applying the McDonnell Douglas test, Chief Judge Clarie concluded, 474 F.Supp. at 863-64, that Dr. Lieberman would make out a prima facie case by proving: the following four elements: (1) she is a woman; (2) she was qualified for tenure; (3) despite her qualifications, she was rejected; and (4) after her rejection the position remained open and the defendants continued to seek or accept applications from persons of her" }, { "docid": "8356702", "title": "", "text": "4. The United States Supreme Court has set forth the standards of proof governing an individual case of employment discrimination in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). In addressing itself to the issue of the “order and allocation of proof in a private, non-class action challenging employment discrimination,” the Court said: “The complainant in a Title VII trial must carry the initial burden under the statute of establishing a prima facie case of racial discrimination. This may be done by showing (i) that he belongs to a racial minority; (ii) that he applied and was qualified for a job for which the employer was seeking applicants; (iii) that, despite his qualifications, he was rejected; and (iv) that, after his rejection, the position remained open and the employer continued to seek applicants from persons of complainant’s qualifications.” [Citations omitted.] 5. ■ If such a showing is made, then the burden shifts to the employer to articulate some legitimate, non-discriminatory reason for the employee’s rejection. (McDonnell, supra.) 6. As in other civil litigation, the rule of “preponderance of the evidence” is applicable in trial of Title VII and Civil Rights cases, and the burden of proof ultimately is upon the plaintiff to prove the violations alleged. Barnes v. Lerner Shops, 323 F.Supp. 617 (S.D.Tex.1971). Furthermore, in order for the allegedly aggrieved party to succeed there must be demonstrated, by the required burden of proof, the fact that such discriminatory practice or policy was the cause of the claimed injury. Gerstle v. Continental Container, Inc., 358 F.Supp. 545 (D.Colo.1973). 7. Here there was no burden to shift to defendant because plaintiffs totally failed to prove a case. We find not only no pattern or practice of discrimination but no iota of evidence of a single act of discrimination which would be actionable. (a) Mrs. Reed complained only about her shift assignment. The record shows she requested and was granted any number of shift assignments and received the principal one she wanted when she was next in line for the vacancy. Although her discharge was" }, { "docid": "10050304", "title": "", "text": "any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin. 42 U.S.C. § 2000e-2(a)(l). A plaintiff alleging disparate treatment may prove her case either via direct or indirect evidence of discrimination. In the case at bar, Plaintiff appears to have chosen the indirect manner of proof. The indirect method invokes the burden-shifting approach established by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973) and Texas Dep’t of Community Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981). Under the first step of the analysis, the plaintiff must prove a prima facie case of discrimination by a preponderance of the evidence. Burdine, 450 U.S. at 252, 101 S.Ct. at 1093. In a case such as this, the prima facie case requires the plaintiff to show: (1) She belongs to a class protected by Title VII; (2) She applied and was qualified for the job for which the employer was seeking applicants; (3) Despite her qualifications she was rejected; and (4) After the rejection, the position remained open and the employer continued to seek applicants from persons of [the] complainant’s qualifications. Equal Employment Opportunity Comm’n v. Spokane Concrete Prods., Inc., 534 F.Supp. 518, 521 (E.D.Wash.1982) (citing McDonnell Douglas, 411 U.S. at 802, 93 S.Ct. at 1824). This formula is flexible and may be adapted to fit the facts of each case. Burdine, 450 U.S. at 253 n. 6, 101 S.Ct. at 1093 n. 6. “When an employee satisfies each of the above prongs, he raises an inference of discrimination. These four prongs present a low hurdle” which is not difficult to clear. Hughes v. Brown, 20 F.3d 745, 746 (7th Cir.1994) (citation omitted). Under the McDonnell Douglas scheme, “[establishment of the prima facie case in effect creates a presumption that the employer unlawfully discriminated against the employee.” Burdine, 450 U.S. at 254, 101 S.Ct. at 1094. “The defendant’s burden is to produce some legitimate nondiserimina-tory reason for the challenged employment decision. The explanation" }, { "docid": "7042156", "title": "", "text": "exist, the court will entertain them. Danner v. Phillips Petroleum Co., 447 F.2d 159 (5th Cir. 1971); Sanchez v. Standard Brands, Inc., 431 F.2d 455 (5th Cir. 1970). As we have noted in Sanchez at 466: . . the “scope” of the judicial complaint is limited to the “scope” of the EEOC investigation which can reasonably be expected to grow out of the charge of discrimination. Judicial claims which serve to amplify, clarify, or more clearly focus earlier EEO complaints are appropriate. Allegations of new acts of discrimination, offered as the essential basis for the requested judicial review, are not appropriate. See Danner, 447 F.2d at 163 n. 3. Ray’s post-February 20, 1974 judicial complaints were properly dismissed by the trial court because they would have required the court to initially adjudicate new claims of discrimination. Entertaining this facet of Ray’s lawsuit would have served to thwart the “rigorous administrative exhaustion requirements” mandated by Title VII. Brown, 425 U.S. at 833, 96 S.Ct. at 1968. Sex Discrimination Claims Ray’s assertion that she has been the victim of sex discrimination is based entirely on the TVA’s hiring of four males. On August 6, 1973, three male co-op participants were hired to fill SD-level jobs at Muscle Shoals. An SE-level job was filled by a male on February 5, 1974. Ray contends that employment of these men subjected her to “disparate treatment” which is expressly prohibited. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973); Furnco Construction Corp. v. Waters, 438 U.S. 567, 98 S.Ct. 2943, 57 L.Ed.2d 957 (1978). Under McDonnell Douglas, to establish a prima facie case of disparate treatment, Ray must prove: (1) that she belongs to a group protected by Title VII, (2) that she sought and was qualified for a job for which the employer was accepting applicants, (3) that despite her qualifications she was rejected, and (4) that after her rejection the position remained open and the employer continued to seek applicants among persons having plaintiff’s qualifications. Once the plaintiff establishes a prima facie case, the defendant is entitled to" }, { "docid": "23364292", "title": "", "text": "claim of job discrimination brought under Title VII is McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). There the Court indicated that: The complainant in a Title VII trial must carry the initial burden under the statute of establishing a prima facie case of racial discrimination. This may be done by showing (i) that he belongs to a racial minority; (ii) that he applied and was qualified for a job for which the employer was seeking applicants; (iii) that, despite his qualifications, he was rejected; and (iv) that, after his rejection, the position remained open and the employer continued to seek applicants from persons of complainant’s qualifications. . . . The burden then must shift to the employer to articulate some legitimate, nondiscriminatory reason for the employee’s rejection. [411 U.S. at 802, 93 S.Ct. at 1824.] If the employer is able to sustain this burden, the burden shifts again to the plaintiff, who must “show that [defendant’s] stated reason for [plaintiff’s] rejection was in fact pretext.” 411 U.S. at 804, 93 S.Ct. at 1825. A. The trial court proceeded to indicate that Ms. Powell failed to make out a prima facie case of discrimination for two reasons. First, the court felt that Powell failed to prove that she was “qualified” to teach on the architecture faculty, given the negative faculty evaluations of her work. Second, the court indicated that Powell failed to demonstrate that other individuals possessing similar qualifications were hired after Powell was fired. We believe that the trial court applied an erroneous legal standard in reaching these conclusions, and that Ms. Powell has made out a prima facie showing of discriminatory treatment. With respect to the first of the court’s findings, we believe that the court’s approach unnecessarily collapses the steps suggested by McDonnell Douglas by shifting considerations which are more appropriate to the employer’s rebuttal phase to the earlier requirement that the employee demonstrate competence to perform the specified work. This is not merely of formal consequence, for it has the practical effect of requiring the employee to prove not" }, { "docid": "22998467", "title": "", "text": "finding that race discrimination played no part in the failure to promote Jefferies. B. Sex Discrimination Jefferies contends that the district court erred in its determination that she did not prove sex discrimination in promotion by a preponderance of the evidence. In order to establish a prima facie case, a plaintiff must show that (1) she belongs to a group protected by Title VII, (2) she applied for and was qualified for a job for which the employer was seeking applicants, (3) despite her qualifications she was rejected, and (4) after her rejection the position remained open and the employer continued to seek applicants among persons having plaintiff’s qualifications. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 1824, 36 L.Ed.2d 668 (1973); Burdine v. Texas Department of Community Affairs, 608 F.2d 563, 567 (5th Cir. 1979). Once the plaintiff establishes a prima facie case of sex discrimination, the employer then has the burden of articulating a legitimate, nondiscriminatory reason for the employment decision. See, e. g., id. at 567; Corley v. Jackson Police Department, 566 F.2d 994, 998-99 (5th Cir. 1978). We have recently made clear that “ ‘articulating’ a legitimate reason involves more than merely stating fictitious reasons; legally sufficient proof is needed before the trier of fact can find plaintiff’s proof rebutted.” Burdine, 608 F.2d at 567. Once the plaintiff’s prima facie case has been successfully rebutted, the plaintiff must be given a fair opportunity to show that the reason articulated by the employer is in fact a pretext for discrimination. McDonnel Douglas, 411 U.S. at 804, 93 S.Ct. at 1825; Burdine, 608 F.2d at 567. In addressing Jefferies’ claim of sex discrimination in promotion, the district court stated: Plaintiff also has failed to demonstrate by a preponderance of the evidence that any consideration was given to gender or a sex classification in the selection of Jones instead of plaintiff for the position of Field Representative . . . Allegations of irregular promotion practices violative of HCCAA guidebook procedures in the selection of Jones do not automatically translate into a showing of unlawful sex" }, { "docid": "23350127", "title": "", "text": "where plaintiff alleges disparate treatment under Title VII, as does plaintiff-appellant here, “[p]roof of discriminatory motive is critical, although it can in some situations be inferred from the mere fact of differences in treatment.” International Brotherhood of Teamsters v. United States, 431 U.S. 324, 97 S.Ct. 1843, 1854 n.15, 52 L.Ed.2d 396 (1977). Therefore, we accept defendant-appellee’s contention, although not for the reasons cited in its brief; proof must have been made at trial that defendant treated Ms. Burdine differently because she is female. Standard of Review Although discrimination is a question of fact, it is also the ultimate issue for resolution in a Title VII case. Therefore, we as an appellate court must independently determine the merits of plaintiff’s allegations, but we are bound by findings of subsidiary facts (evidentiary facts) that are not clearly erroneous. East v. Romine, Inc., 518 F.2d 332, 339 (5th Cir. 1975). We must also determine whether the ultimate finding is based on requisite subsidiary facts. Id. at 339, citing Humphrey v. Southwestern Portland Cement Co., 488 F.2d 691, 694 (5th Cir. 1974). Hiring the Project Director Plaintiff contends that, by transferring Robert Watts, a male, instead of promoting her to Project Director, defendant discriminated against her on account of sex. The elements of such cases are clear. In order to establish a prima facie case, plaintiff must show that (1) she belongs to a group protected by Title VII, (2) she applied for and was qualified for a job for which the employer was seeking applicants, (3) despite her qualifications she was rejected, and (4) after her rejection the position remained open and the employer continued to seek applicants among persons having plaintiff’s qualifications. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). These elements may differ, depending on the factual context. Id. at 802 n.13, 93 S.Ct. 1817. We believe plaintiff’s proof at trial clearly met the Green criteria. She is protected under Title VII from sex discrimination. She applied for the Project Director’s job several times and was considered for the job, and her" }, { "docid": "18677152", "title": "", "text": "n.15, 97 S.Ct. 1843, 1854,, n.15, 52 L.Ed.2d 396 (1977). She contends that she was subject to disparate treatment as a special police officer solely because of her sex, and that she was the victim of facially neutral height and weight standards in June 1977 and a facially neutral policeman examination administered in November 1979, both having a “disparate impact” on her sex. The analytical framework for plaintiff’s sex discrimination claims is contained in the “order and allocation of proof” standards announced in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). First, the court must determine whether the plaintiff has offered “evidence adequate to create an inference that an employment decision was based on a discriminatory criterion illegal under the Act.” Teamsters v. United States, 431 U.S. at 358, 97 S.Ct. at 1866. If such a prima facie case of sex discrimination has been presented, the court must then ascertain whether the defendant has articulated “some legitimate, non-discretionary reason” for the actions that have adversely affected the complainant. McDonnell Douglas Corp. v. Green, 411 U.S. at 801, 93 S.Ct. at 1823. Finally, if defendant has successfully met the prima facie case, the court must examine the record to determine whether the plaintiff has shown that the defendant’s legitimate non-discriminatory reason is in fact pretext. Id. 1. Disparate Treatment as a Special Police Officer McDonnell Douglas also contains general requirements for establishing a prima facie case of discrimination under the disparate treatment theory: This may be done by showing (i) that [the plaintiff] belongs to a [group protected by the statute]; (ii) that he applied and was qualified for a job for which the employer was seeking applicants; (iii) that despite his qualifications he was rejected, the position remained open and the employer continued to seek applicants from persons of complainant’s qualifications. Id. at 802, 93 S.Ct. at 1824. Accord, Mazus v. Department of Transportation, 629 F.2d 870, at 873 (3d Cir., 1980); Kunda v. Muhlenburg College, 621 F.2d 532, 541 (3d Cir. 1980). The record demonstrates that between August 1975 and June 1977" }, { "docid": "7130660", "title": "", "text": "42 U.S.C. §§ 2000e et seq., and under the Age Discrimination in Employment Act of 1967, as amended, 29 U.S.C. §§ 621 et seq. After a two day trial, the district court issued its findings of fact and conclusions of law, and entered judgment in favor of the Postal Service. Bell appealed to this Court. II. PRIMA FACIE CASE The district court held that Bell established a prima facie case of race and age discrimination under the test established in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). See Bell v. Bolger, 535 F.Supp. 997, 1001 (E.D.Mo.1982). In McDonnell Douglas, supra, the Supreme Court stated that a plaintiff in a disparate treatment case may establish a prima facie case by showing: (i) that he belongs to a racial minority; (ii) that he applied and was qualified for a job for which the employer was seeking applicants; (iii) that, despite his qualifications, he was rejected; and (iv) that, after his rejection, the position remained open and the employer continued to seek applicants from persons of complainant’s qualifications. McDonnell Douglas Corp. v. Green, supra, 411 U.S. at 802, 93 S.Ct. at 1824 (footnote omitted). The same standards apply in an age discrimination claim, except the plaintiff must establish that he or she is a member of a protected age group rather than a racial minority. See Halsell v. Kimberly-Clark Corp., 683 F.2d 285, 289-290 (8th Cir.1982), cert. denied,-U.S.-, 103 S.Ct. 1194, 75 L.Ed.2d 438 (1983); Cova v. Coca-Cola Bottling Co., 574 F.2d 958, 959 (8th Cir. 1978). The Postal Service argues that the district court erred in applying the McDonnell Douglas test to a case involving a promotion. It contends that more than the fourth McDonnell Douglas factor is required in such a case and suggests that Bell failed to show that he was rejected by the review committee “under circumstances which give rise to an inference of unlawful discrimination.” Appellee’s Br. at 16, citing Texas Department of Community Affairs v. Bur-dine, 450 U.S. 248, 253,101 S.Ct. 1089, 1093, 67 L.Ed.2d 207 (1981) (footnote omitted)" } ]

[ { "docid": "22538134", "title": "", "text": "978, 985 (CA2 1942). That view has been steadily eroded over the years, beginning in the lower courts. See Scherk, supra, at 616 (Stevens, J., dissenting) (citing cases). The erosion intensified in our most recent decisions upholding agreements to arbitrate federal claims raised under the Securities Exchange Act of 1934, see Shear- son/American Express Inc. v. McMahon, 482 U. S. 220 (1987), under the Racketeer Influenced and Corrupt Organizations (RICO) statutes, see ibid., and under the antitrust laws, see Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U. S. 614 (1985). See also Dean Witter Reynolds Inc. v. Byrd, 470 U. S. 213, 221 (1985) (federal arbitration statute “requires that we rigorously enforce agreements to arbitrate”); Moses H. Cone Memorial Hospital v. Mercury Construction Corp., 460 U. S. 1, 24 (1983) (“[(Questions of arbitrability must be addressed with a healthy regard for the federal policy favoring arbitration”). The shift in the Court’s views on arbitration away from those adopted in Wilko is shown by the flat statement in Mitsubishi: “By agreeing to arbitrate a statutory claim, a party does not forgo the substantive rights afforded by the statute; it only submits to their resolution in an arbitral, rather than a judicial, forum.” 473 U. S., at 628. To the extent that Wilko rested on suspicion of arbitration as a method of weakening the protections afforded in the substantive law to would-be complainants, it has fallen far out of step with our current strong endorsement of the federal statutes favoring this method of resolving disputes. Once the outmoded presumption of disfavoring arbitration proceedings is set to one side, it becomes clear that the right to select the judicial forum and the wider choice of courts are not such essential features of the Securities Act that § 14 is properly construed to bar any waiver of these provisions. Nor are they so critical that they cannot be waived under the rationale that the Securities Act was intended to place buyers of securities on an equal footing with sellers. Wilko identified two different kinds of provisions in the Securities Act that would advance" } ]

[ { "docid": "6877374", "title": "", "text": "an existing controversy arising out of such a contract, ... shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract. 9 U.S.C. § 2 (1994). The Supreme Court has interpreted § 2 of the FAA as “a congressional declaration of a liberal federal policy favoring arbitration agreements.” Moses H. Cone Mem’l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 24,103 S.Ct. 927, 941, 74 L.Ed.2d 765 (1983). Generally, a court should enforce an arbitration agreement according to its terms, and no exception exists for a cause of action founded on statutory rights. Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614, 626-27, 105 S.Ct. 3346, 3354, 87 L.Ed.2d 444 (1985) (holding that “the Act itself provides no basis for disfavoring agreements to arbitrate statutory claims by skewing the otherwise hospitable inquiry into arbitrability”). In every statutory right case that the Supreme Court has considered, it has upheld binding arbitration if the statute creating the right did not explicitly preclude arbitration. See Gilmer, 500 U.S. at 35, 111 S.Ct. at 1657 (holding that courts should enforce binding arbitration agreements regarding claims arising under the ADEA); Rodriguez de Quijas v. Shear-son/American Express, Inc., 490 U.S. 477, 484-86, 109 S.Ct. 1917, 1921-22, 104 L.Ed.2d 526 (1989) (holding that courts should enforce pre-dispute agreements to arbitrate claims under the Securities Act of 1933); Shearson/American Express, Inc. v. McMahon, 482 U.S. 220, 238, 242, 107 S.Ct. 2332, 2343, 2345-16, 96 L.Ed.2d 185 (1987) (holding that courts should enforce pre-dispute agreements to arbitrate Securities Exchange Act of 1934 claims and Racketeer Influenced and Corrupt Organizations Act claims); Mitsubishi Motors Corp., 473 U.S. at 628-10, 105 S.Ct. at 3355-61 (holding that courts should enforce arbitration of Sherman Antitrust Act claims in international transactions). “Having made the bargain to arbitrate, the party should be held to it unless Congress itself has evinced an intention to preclude a waiver of judicial remedies for the statutory rights at issue.” Mitsubishi Motors Corp., 473 U.S. at 628, 105 S.Ct. at 3354-55. Thus, unless Congress has clearly expressed" }, { "docid": "15473173", "title": "", "text": "in this? You know as arbitrators you have the ability, you’re not strictly bound by case law and precedent. You have the ability to do what is right, what is fair and what is proper, and that’s what Shearson is asking you to do. (Arbit.Tr. at 435-36) (emphasis added). The lawyer continued, and reiterated the argument he had been making throughout the ease, “[tjhus, as I said in my Answer, as I said before in my Opening, and I now ask you in my Closing, not to follow the FLSA if you determine she’s not an exempt employee.” (Arbit.Tr. at 438). It is certainly true that parties can establish the parameters of the arbitration explicitly in their agreement. When a claim arises under specific laws, however, the arbitrators are bound to follow those laws in the absence of a valid and legal agreement not to do so. As the Supreme Court has stated, “[b]y agreeing to arbitrate a statutory claim, a party does not forego the substantive rights afforded by the statute; it only submits to their resolution in an arbitral, rather than a judicial, forum.” Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20, 26, 111 S.Ct. 1647, 1652, 114 L.Ed.2d 26 (1991)(quoting Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614, 628, 105 S.Ct. 3346, 3354-55, 87 L.Ed.2d 444 (1985)). Similarly, in Shearson/American Exp., Inc. v. McMahon, 482 U.S. 220, 107 S.Ct. 2332, 96 L.Ed.2d 185 (1987), the Court stated “we have indicated that there is no reason to assume at the outset that arbitrators will not follow the law; although judicial scrutiny of arbitration awards necessarily is limited, such review is sufficient to ensure that arbitrators comply with the requirements of the statute,” id. at 232, 107 S.Ct. at 2340 (citing to and summarizing Mitsubishi Motors). This does not mean that arbitrators can be reversed for errors or misinterpretations of law. In Wilko v. Swan, 346 U.S. 427, 436-37, 74 S.Ct. 182, 187-88, 98 L.Ed. 168 (1953), overruled on other grounds, Rodriguez de Quijas v. Shearson/American Exp., Inc., 490 U.S. 477, 109 S.Ct. 1917, 104 L.Ed.2d 526" }, { "docid": "21212952", "title": "", "text": "basis, and that a consumer therefore may agree to submit her claims to arbitration. 2. The enforcement of arbitration agreements for statutory claims Of course, this case implicates the Federal Arbitration Act (“FAA”) which provides that: [a] written provision in any maritime transaction or a contract evidencing a transaction involving commerce to settle by arbitration a controversy thereafter arising out of such contract or transaction ... shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract. 9 U.S.C. § 2. Congress enacted the FAA “to reverse the longstanding judicial hostility to arbitration agreements that had existed at English common law and had been adopted by American courts, and to place arbitration agreements upon the same footing as other contracts.” Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20, 24, 111 S.Ct. 1647, 1651, 114 L.Ed.2d 26 (1991). The circumstance that Gay’s claims are statutory does not mean that the Agreement could not specify that the parties to it would submit their controversies, if any, arising from it to arbitration for resolution. Id. at 26, 111 S.Ct. at 1652 (“It is by now clear that statutory claims may be the subject of an arbitration agreement, enforceable pursuant to the FAA.”); see also Shearson/American Express, Inc. v. McMahon, 482 U.S. 220, 226, 107 S.Ct. 2332, 2337, 96 L.Ed.2d 185 (1987) (“This duty [of the courts] to enforce arbitration agreements is not diminished when a party bound by an agreement raises a claim founded on statutory rights.”); Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614, 626, 105 S.Ct. 3346, 3354, 87 L.Ed.2d 444 (1985) (“There is no reason to depart from these guidelines [for enforcing arbitration agreements] where a party bound by [such an] agreement raises claims founded on statutory rights.”). But even though statutory claims are subject to arbitration agreements, “[l]ike any statutory directive, the [FAA]’s mandate may be overridden by a contrary congressional command.” McMahon, 482 U.S. at 226, 107 S.Ct. at 2337. A party seeking to avoid arbitration for a statutory claim has the burden of" }, { "docid": "22686196", "title": "", "text": "S. C. §2. In considering whether respondent’s agreement to arbitrate is unenforceable, we are mindful of the FAA’s purpose “to reverse the longstanding judicial hostility to arbitration ágreements . . . and to place arbitration agreements upon the same footing as other contracts.” Gilmer v. Interstate/ Johnson Lane Corp., 500 U. S. 20, 24 (1991). In light of that purpose, we have recognized that federal statutory claims can be appropriately resolved through arbitration, and we have enforced agreements to arbitrate that involve such claims. See, e.g., Rodriguez de Quijas v. Shearson/American Express, Inc., 490 U. S. 477 (1989) (Securities Act of 1933); Shear- son/American Express Inc. v. McMahon, 482 U. S. 220 (1987) (Securities Exchange Act of 1934 and Racketeer Influenced and Corrupt Organizations Act); Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U. S. 614 (1985) (Sherman Act). We have likewise rejected generalized attacks on arbitration that rest on “suspicion of arbitration as a method of weakening the protec tions afforded in the substantive law to would-be complainants.” Rodriguez de Quijas, supra, at 481. These cases demonstrate that even claims arising.under a statute designed to further important social policies may be arbitrated because “ ‘so long as the prospective litigant effectively may vindicate [his or her] statutory cause of action in the arbitral forum,’” the statute serves its functions. See Gilmer, supra, at 28 (quoting Mitsubishi, supra, at 637). In determining whether statutory claims may be arbitrated, we first ask whether the parties agreed to submit their claims to arbitration, and then ask whether Congress has evinced an intention to preclude a waiver of judicial remedies for the statutory rights at issue. See Gilmer, supra, at 26; Mitsubishi, supra, at 628. In this case, it is undisputed that the parties agreed to arbitrate all claims relating to their contract, including claims involving statutory rights. Nor does Randolph contend that the TILA evinces an intention to preclude a waiver of judicial remedies. She contends instead that the arbitration agreement’s silence with respect to costs and fees creates a “risk” that she will be required to bear prohibitive arbitration costs if" }, { "docid": "22877584", "title": "", "text": "Supreme Court precedent). Our decision in Barrowclough has joined that species insofar as it concerns the issue before us. Thus, to conform our deci sions to the clear trend in recent Supreme Court cases, and for the reasons more fully-developed below, we now conclude that agreements to arbitrate statutory ERISA claims under the FAA may be upheld. See Rodriguez de Quijas v. Shearson/American Express, Inc., 490 U.S. 477, 109 S.Ct. 1917, 104 L.Ed.2d 526 (1989) (enforcing agreement to arbitrate claims arising under the Securities Act of 1933 and stating that prior decisions holding such clauses unenforceable had “fallen far out of step with our current strong endorsement of the federal statutes favoring this method of resolving disputes”); see also Shearson/American Express, Inc. v. McMahon, 482 U.S. 220, 107 S.Ct. 2332, 96 L.Ed.2d 185 (1987) (claims under antifraud provisions of 1934 Securities Exchange Act and treble-damage claims under Racketeer Influenced and Corrupt Organizations Act held arbitrable); Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, 473 U.S. 614, 625, 105 S.Ct. 3346, 3353, 87 L.Ed.2d 444 (1985) (nothing in Arbitration Act implies a presumption against arbitration of statutory claims); see also Olde Discount Corp. v. Tupman, 1 F.3d 202, 208 (3d Cir.1993) (Greenberg, J., separate opinion); Hays, 885 F.2d 1149, 1153-57 (district court lacks discretion to deny enforcement of arbitration clause in non-core proceeding brought by bankruptcy trustee); Bird v. Shearson Lehman/American Express, Inc., 926 F.2d 116 (2d Cir.1991) (enforcing agreement to arbitrate statutory ERISA claims); see also Arnulfo P. Sulit, Inc. v. Dean Witter Reynolds, Inc., 847 F.2d 475 (8th Cir.1988). C. In Barrowclough, a discharged stockbroker sued his former employer for improperly withholding deferred compensation benefits and for violating ERISA’s reporting and fiduciary provisions. We held that while claims to establish or enforce rights to benefits under 29 U.S.C. § 1132(a) are subject to arbitration, claims based on violations of the substantive provisions of ERISA can be asserted in a federal court in spite of an arbitration agreement. Barrowclough, 752 F.2d at 939. Our reasoning evolved from two cases in which the Supreme Court decided that statutory claims under Title VII of" }, { "docid": "16832927", "title": "", "text": "to informal mechanisms of dispute resolution prescribed in § 2310(a) of the Act, that Congress sought to limit recourse to binding arbitration. The conclusion reached here, that Congress did not intend in the Magnuson-Moss Act to override the FAA’s general mandate and preclude binding arbitration of non-written and implied warranty claims, is consistent with several decisions of the United States Supreme Court addressing the arbitrability of claims arising under other congressional statutes. See Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20, 23, 111 S.Ct. 1647, 1650-51, 114 L.Ed.2d 26 (1991) (claims arising under the Age Discrimination in Employment Act (ADEA), 29 U.S.C.A. §§ 621-634, held arbitrable); Rodriguez de Quijas v. Shear son/American Express, Inc., 490 U.S. 477, 480-483, 109 S.Ct. 1917, 1919-21, 104 L.Ed.2d 526 (1989) (claims arising under § 12(2) of the Securities Act of 1933, 15 U.S.C.A. § 771(2), held arbitrable); McMahon, 482 U.S. at 238-242, 107 S.Ct. at 2343-46 (claims arising under § 10(b) of the Securities Exchange Act of 1934,15 U.S.C.A. § 78j(b), and civil claims arising under the Racketeer Influenced and Corrupt Organizations Act (civil RICO), 18 U.S.C.A. §§ 1961-1968, held arbitrable); Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, 473 U.S. 614, 629, 105 S.Ct. 3346, 3355, 87 L.Ed.2d 444 (1985) (claims arising under the Sherman Act, 15 U.S.C.A. §§ 1-7, held arbitrable). In each of these decisions, despite the presence in the statute at issue of a jurisdictional provision analogous to § 2310(d) of the Magnuson-Moss Act, the Court ruled that the FAA’s mandate had not been overridden by Congress. Moreover, in both Rodriguez de Quijas and McMahon, even the presence in the statutes of a provision that explicitly voided agreements to waive any statutory provisions did not prompt the Court to find that binding arbitration was prohibited. See Rodriguez de Quijas, 490 U.S. at 482-83, 109 S.Ct. at 1920-21; McMahon, 482 U.S. at 227-28, 107 S.Ct. at 2338-39. Instead, in both decisions the court emphasized that an agreement to arbitrate does not constitute a waiver of any substantive statutory rights, but rather reflects a decision to seek adjudication in an alternative forum. See Rodriguez" }, { "docid": "23387458", "title": "", "text": "Oil Co., 761 F.2d 533, 535 (9th Cir.1985) (internal quotes omitted). Such protection was needed in order to correct the great “disparity of bargaining power” between petroleum franchisors and franchisees. See S.Rep. No. 731, 95th Cong., 2d Sess., in 1978 U.S.C.C.A.N. 873, 876 [hereinafter Legislative History ]. According to the legislative history of the PMPA, petroleum franchise agreements generally are nothing more than “contracts of adhesion” that perpetuate the “continuing vulnerability of the franchisee to the demands and actions of the franchisor.” Id. In order to correct some of the effects of this disparity in bargaining power, Congress enacted certain protections for franchisees like Graham Oil. Essentially, the Act affords franchisees statutory remedies for the arbitrary or discriminatory termination (or non-renewal) of franchises by their franchisors. Id. Among other things, these protections include exemplary damages, reasonable attorney’s fees, and a one-year statute of limitations. See 15 U.S.C. § 2805; Legislative History at 899. These rights and benefits are, of course, not only designed to compen sate for injury, but also to deter unfair conduct. 2. Arbitration Clause. Turning to the arbitration clause, we note as an initial matter that arbitration is a form of dispute resolution that finds favor in the courts. In a number of instances, the Supreme Court has upheld agreements to submit statutory claims to arbitration, see, e.g., Gilmer v. Interstate/Johnson Lane Corporation, 500 U.S. 20, 26, 111 S.Ct. 1647, 1652, 114 L.Ed.2d 26 (1991) (“It is by now clear that statutory claims may be the subject of an arbitration agreement, enforceable pursuant to the [Federal Arbitration Act, 9 U.S.C. §2 et seq.].”), including claims involving unfair business practices. Among the claims in that category are those arising under the Sherman Act, the Securities Exchange Act of 1934, and the Securities Act of 1933. See, e.g., Rodriguez de Quijas v. Shearson/American Express, Inc., 490 U.S. 477, 109 S.Ct. 1917, 104 L.Ed.2d 526 (1989); Shearson/American Express Inc. v. McMahon, 482 U.S. 220, 107 S.Ct. 2332, 96 L.Ed.2d 185 (1987); Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614, 105 S.Ct. 3346, 87 L.Ed.2d 444 (1985). Some of" }, { "docid": "22686195", "title": "", "text": "interpretation. Certainly the plain language of the statutory text does not suggest that Congress intended to incorporate the rather complex independent/ embedded distinction, and its consequences for finality, into § 16(a)(3). We therefore conclude that where, as here, the District Court has ordered the parties to proceed to arbitration, and dismissed all the claims before it, that decision is “final” within the meaning of § 16(a)(3), and therefore appealable. Ill We now turn to the question whether Randolph’s agreement to arbitrate is unenforceable because it says nothing about the costs of arbitration, and thus fails to provide her protection from potentially substantial costs of pursuing her federal statutory claims in the arbitral forum. Section 2 of the FAA provides that “[a] written provision in any maritime transaction or a contract evidencing a transaction involving commerce to settle by arbitration a controversy thereafter arising out of such contract . . . shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract.” 9 U. S. C. §2. In considering whether respondent’s agreement to arbitrate is unenforceable, we are mindful of the FAA’s purpose “to reverse the longstanding judicial hostility to arbitration ágreements . . . and to place arbitration agreements upon the same footing as other contracts.” Gilmer v. Interstate/ Johnson Lane Corp., 500 U. S. 20, 24 (1991). In light of that purpose, we have recognized that federal statutory claims can be appropriately resolved through arbitration, and we have enforced agreements to arbitrate that involve such claims. See, e.g., Rodriguez de Quijas v. Shearson/American Express, Inc., 490 U. S. 477 (1989) (Securities Act of 1933); Shear- son/American Express Inc. v. McMahon, 482 U. S. 220 (1987) (Securities Exchange Act of 1934 and Racketeer Influenced and Corrupt Organizations Act); Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U. S. 614 (1985) (Sherman Act). We have likewise rejected generalized attacks on arbitration that rest on “suspicion of arbitration as a method of weakening the protec tions afforded in the substantive law to would-be complainants.” Rodriguez de Quijas, supra, at 481." }, { "docid": "1270572", "title": "", "text": "to a commercially reasonable means of selling the inventory. There are other possible outcomes, but all depend on an understanding of the parties’ written bargain and of its implied terms. Omron’s claim engages both the parties’ compact and the rules of trademark law, but the fact that the parties’ designated forum would have to interpret federal law is no obstacle to the reference. E.g., Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20, 111 S.Ct. 1647, 114 L.Ed.2d 26 (1991) (arbitration of claims under the Age Discrimination in Employment Act); Carnival Cruise Lines, Inc. v. Shute, 499 U.S. 585, 1116 S.Ct. 1522, 113 L.Ed.2d 622 (1991) (forum selection clause sending admiralty case to Florida); Rodriguez de Quijos v. Shearson/American Express, Inc., 490 U.S. 477, 109 U.S. 1917, 104 L.Ed.2d 526 (1989) (arbitration of claims under the Securities Act of 1933); Shearson/American Express, Inc. v. McMahon, 482 U.S. 220, 107 S.Ct. 2332, 96 L.Ed.2d 185 (1987) (arbitration of claims under the Securities Exchange Act of 1934 and the Racketeer Influenced and Corrupt Organizations Act); Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614, 105 S.Ct. 3346, 87 L.Ed.2d 444 (1985) (arbitration in Japan of claims under U.S. antitrust laws); Scherk v. Alberto-Culver Co., 417 U.S. 506, 94 S.Ct. 2449, 41 L.Ed.2d 270 (1974) (arbitra tion in France of claims under the Securities Exchange Act of 1934); The Bremen v. Zapata OffShore Co., 407 U.S. 1, 92 S.Ct. 1907, 32 L.Ed.2d 513 (1972) (forum selection clause sending admiralty case to High Court of Justice in England); Bonny v. Society of Lloyd’s, 3 F.3d 156 (7th Cir.1993) (forum selection clause sending fraud and securities claims to England). We concluded in Sweet Dreams Unlimited, Inc. v. Dial-A-Mattress International, Ltd., 1 F.3d 639, 642-43 (7th Cir.1993), that all disputes the resolution of which arguably depend on the construction of an agreement “arise out of’ that agreement for purposes of an arbitration clause. See also Hugel v. Corporation of Lloyd’s, 999 F.2d 206 (7th Cir.1993); S+L+H S.p.A. v. Miller-St. Nazianz, Inc., 988 F.2d 1518 (7th Cir.1993). We cannot imagine why the scope of that phrase would" }, { "docid": "5005074", "title": "", "text": "arbitrate “shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract.” 9 U.S.C. § 2. “The effect of the section is to create a body of federal substantive law of arbitrability, applicable to any arbitration agreement within the coverage of the Act.” Moses H. Cone Mem’l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 24, 103 S.Ct. 927, 74 L.Ed.2d 765 (1983). The FAA codifies a federal policy that strongly favors arbitration as an alternative dispute resolution process. Moses H. Cone, 460 U.S. at 24, 103 S.Ct. 927; Collins & Aikman Prods. Co. v. Bldg. Sys., Inc., 58 F.3d 16, 19 (2d Cir.1995). The primary purpose of the FAA is to “place arbitration agreements upon the same footing as other contracts” and to ensure that private arbitration agreements are enforced according to their terms. Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20, 24, 111 S.Ct. 1647, 114 L.Ed.2d 26 (1991); see also Volt Info. Scis., Inc. v. Bd. of Trs. of Leland Stanford Junior Univ., 489 U.S. 468, 478, 109 S.Ct. 1248, 103 L.Ed.2d 488 (1989). Federal statutory claims may be appropriately resolved through arbitration. Rodriguez de Quijas v. Shearson/American Express, Inc., 490 U.S. 477, 109 S.Ct. 1917, 104 L.Ed.2d 526 (1989). Part of the reason why federal statutory claims may be resolved through arbitration is because “[b]y agreeing to arbitrate a statutory claim, a party does not forgo the substantive rights afforded by the statute; it only submits to their resolution in an arbitral, rather than a judicial, forum.” Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614, 628, 105 S.Ct. 3346, 87 L.Ed.2d 444 (1985). “Even claims arising under a statute designed to further important social policies may be arbitrated because so long as the prospective litigant effectively may vindicate his or her statutory cause of action in the arbitral forum, the statute serves its functions.” Green Tree Fin. Corp.-Alabama v. Randolph, 531 U.S. 79, 90, 121 S.Ct. 513, 148 L.Ed.2d 373 (2000) (internal quotations omitted). Indeed, the Supreme Court has stated that an" }, { "docid": "16755950", "title": "", "text": "rights to use Image software generally originated in the 1994 Agreement and because the 1996 Agreement expressly acknowledged the 1994 Agreement’s continuing viability after its execution, the presumption, again, is that Image’s claim that Reynolds is using Image software without authorization is subject to arbitration. Under Moses H. Cone, moreover, any doubt that the dispute is not subject to arbitration should be resolved in favor of arbitration. It has been argued that certain disputes founded on statutory rights, by their very nature, involve public policies or interests rendering them “non-arbitrable” as a matter of law. See LDS, Inc. v. Metro Canada Logistics, Inc., 28 F.Supp.2d 1297, 1300 (D.Kan.1998)(claim under Copyright Act)(eiting Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20, 111 S.Ct. 1647, 114 L.Ed.2d 26 (1991)(claim under Age Discrimination in Employment Act); Rodriguez de Quijas v. Shearson/American Express, Inc., 490 U.S. 477, 109 S.Ct. 1917, 104 L.Ed.2d 526 (1989)(claims arising under the Securities Act of 1933); Shearson/American Express, Inc. v. McMahon, 482 U.S. 220, 107 S.Ct. 2332, 96 L.Ed.2d 185 (1987) (claim under § 10(b) of the Securities Exchange Act of 1934 and claim under civil provisions of the Racketeer Influenced and Corrupt Organizations Act); and Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614, 105 S.Ct. 3346, 87 L.Ed.2d 444 (1985)(elaim under Sherman Antitrust Act)). This argument has been largely rejected, with the Supreme Court upholding the enforceability of arbitration agreements under the FAA in connection with the identified claims. See id. In LDS, the Court relied on these cases as well as the Tenth Circuit’s decision in Coors Brewing Co. v. Molson Breweries, 51 F.3d 1511 (10th Cir. 1995) to reject plaintiffs contention that a claim for copyright infringement involves, per se, “non-arbitrable” subject matter. 28 F.Supp.2d at 1300-01 (finding it was plaintiffs burden to demonstrate Congress intended to preclude a waiver of judicial remedies for copyright infringement claims and concluding plaintiff could not do so). See generally 3 Nimmer on Copyright, § 10.15[B] at pp. 10-128—10-130 (Lexis/Nexis 2002)(eiting Saturday Evening Post Co. v. Rumbleseat Press, Inc., 816 F.2d 1191, 1199(7th Cir.1987)(holding federal law does not forbid" }, { "docid": "23074312", "title": "", "text": "the FAA applies to Title VII claims. Once again, Gilmer rejects all of these arguments. In Gilmer the Court begins its discussion of the FAA with a recognition of its broad scope and a summary of recent statutory rights which have been held to be arbitra-ble under the FAA. See, e.g., Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614, 105 S.Ct. 3346, 87 L.Ed.2d 444 (1985) (finding claims under the Sherman Act arbitrable); Shearson/American Express, Inc. v. McMahon, 482 U.S. 220, 107 S.Ct. 2332, 96 L.Ed.2d 185 (1987) (finding claims under the civil provisions of RICO and § 10(b) of the Securities Exchange Act arbitrable); Rodriguez de Quijos v. Shearson/American Express, Inc., 490 U.S. 477, 109 S.Ct. 1917, 104 L.Ed.2d 526 (1989) (finding claims under the Securities Act of 1933 arbitrable). After summarizing its recent cases regarding the scope of the FAA, the Court states: In these cases we recognized that ‘[b]y agreeing to arbitrate a statutory claim, a party does not forgo the substantive rights afforded by the statute; it only submits to their resolution in an arbitral, rather than a judicial, forum.’ Mitsubishi, 473 U.S. at 628, 105 S.Ct. at 3354. Gilmer, 111 S.Ct. at 1652. The Court goes on to state that [although all statutory claims may not be appropriate for arbitration, ‘[hjaving made the bargain to arbitrate, the party should be held to it unless Congress itself has evinced an intention to preclude a waiver of judicial remedies for the statutory rights at issue.’ Id. (quoting Mitsubishi, 473 U.S. at 628, 105 S.Ct. at 3354-55). The plaintiff in Gilmer attempted to demonstrate that Congress had meant to exempt the ADEA from arbitration by references to the statutory scheme, the statute’s purposes and public importance of the rights protected under the ADEA. See Gilmer, 111 S.Ct. at 1652-53. Further, just as Willis and the EEOC argue in the present case, the plaintiff in Gilmer argued that the scheme of EEOC enforcement of the ADEA evidenced that the ADEA was ill-suited to settlement proceedings through arbitration. Id. at 1653. In response to these arguments, the Court" }, { "docid": "11803787", "title": "", "text": "had “no general authority to invoke public laws that conflict with the bargain between the parties.” Id. at 53, 94 S.Ct. 1011. The Court also expressed concern over the voluntariness of an individual’s prospective waiver of a statutory civil right. Ten years after Gardner-Denver, the Court revisited the controversy over arbitration of statutory rights in Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614, 105 S.Ct. 3346, 87 L.Ed.2d 444 (1985). There, the court cast aside its previous doubts concerning the competency of an arbitral forum, and the Court found that the arbitral forum was presumptively competent to resolve statutory claims where a valid arbitration agreement existed. Mitsubishi dealt with Sherman antitrust claims, and its holding was subsequently extended to numerous other business-related claims, such as RICO or securities acts claims. Rodriguez de Quijas v. Shearson/American Express, Inc., 490 U.S. 477, 109 S.Ct. 1917, 104 L.Ed.2d 526 (1989); Shearson/American Express Inc. v. McMahon, 482 U.S. 220, 107 S.Ct. 2332, 96 L.Ed.2d 185 (1987). Notwithstanding the pro-arbitration stance evident in Mitsubishi, however, lower courts were reluctant to extend its holding to civil rights claims because of the perceived shortcomings of the arbitral forum in addressing public rights and obligations and concern of the voluntariness of the waiver of the judicial forum. However, in Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20, 111 S.Ct. 1647, 114 L.Ed.2d 26 (1991), the Supreme Court held that an ADEA claim could be subject to an arbitration agreement when the plaintiff agreed to arbitration under a “Uniform Application for Securities Industry Registration or Transfer.” The Court in Gilmer noted that the FAA “provisions manifest a ‘liberal federal policy favoring arbitration agreement.’ ” 500 U.S. at 25, 111 S.Ct. 1647. The Court in Gilmer also revealed its understanding of an arbitration forum: [b]y agreeing to arbitrate a statutory claim, a party does not forgo the substantive rights afforded by the statute; it only submits to their resolution in an arbitral, rather than a judicial, forum. Id. at 24, 111 S.Ct. 1647. After examining the test, history, and policies under the ADEA, the Court concluded that there" }, { "docid": "10828410", "title": "", "text": "we do not know whether such resolutions are consistent with prevailing interpretations of public law or whether the procedures followed were inequitable. Id. (emphasis in original) (footnote omitted). For a time, skepticism regarding the role of arbitration in resolving statutory claims held sway. This skepticism is perhaps best reflected in the Supreme Court’s approach to the mandatory arbitration of statutory claims. The Court rejected arbitration as the lone forum for vindicating claims under Title VII of the 1964 Civil Rights Act and the Securities Act of 1933. See Alexander v. Gardner-Denver Co., 415 U.S. 36, 47, 94 S.Ct. 1011, 1019, 39 L.Ed.2d 147 (1974); Wilfco v. Swan, 346 U.S. 427, 438, 74 S.Ct. 182, 188-89, 98 L.Ed. 168 (1953). In so holding, the Court explained that arbitrators’ inexperience with legal concepts coupled with the lack of stringent procedural safeguards rendered an arbi-tral forum, in the context of the statutory claims at issue, an unsuitable replacement for a court of law. See Gardner-Denver, 415 U.S at 57, 94 S.Ct. 1011; Wilko, 346 U.S. at 435-36, 74 S.Ct. 182. However, the tide soon turned. In a trio of cases decided in the 1980s, the Supreme Court enforced arbitration agreements covering claims under the Sherman Act, see Mitsubishi Motors Corp., 473 U.S. at 640, 105 S.Ct. 3346, the Securities Act of 1933, see Rodriguez de Quijas v. Shearson/American Express, Inc., 490 U.S. 477, 483, 109 S.Ct. 1917, 1921, 104 L.Ed.2d 526 (1989), the Securities Exchange Act of 1934, see Shearson/American Express, Inc. v. McMahon, 482 U.S. 220, 238, 107 S.Ct. 2332, 2344, 96 L.Ed.2d 185 (1987), and the civil provisions of the Racketeering Influenced Corrupt Organizations Act (“RICO”), see McMahon, 482 U.S. at 242, 107 S.Ct. 2332. These holdings led the Court to declare in 1991 that “[i]t is now well settled that statutory claims may be the subject of an arbitration agreement, enforceable by the FAA.” Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20, 26, 111 S.Ct. 1647, 1652, 114 L.Ed.2d 26 (1991). The Court addressed its growing acceptance of mandatory arbitration for statutory claims in Gilmer v. Interstate/Johnson Lane Corp., in" }, { "docid": "23387459", "title": "", "text": "Arbitration Clause. Turning to the arbitration clause, we note as an initial matter that arbitration is a form of dispute resolution that finds favor in the courts. In a number of instances, the Supreme Court has upheld agreements to submit statutory claims to arbitration, see, e.g., Gilmer v. Interstate/Johnson Lane Corporation, 500 U.S. 20, 26, 111 S.Ct. 1647, 1652, 114 L.Ed.2d 26 (1991) (“It is by now clear that statutory claims may be the subject of an arbitration agreement, enforceable pursuant to the [Federal Arbitration Act, 9 U.S.C. §2 et seq.].”), including claims involving unfair business practices. Among the claims in that category are those arising under the Sherman Act, the Securities Exchange Act of 1934, and the Securities Act of 1933. See, e.g., Rodriguez de Quijas v. Shearson/American Express, Inc., 490 U.S. 477, 109 S.Ct. 1917, 104 L.Ed.2d 526 (1989); Shearson/American Express Inc. v. McMahon, 482 U.S. 220, 107 S.Ct. 2332, 96 L.Ed.2d 185 (1987); Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614, 105 S.Ct. 3346, 87 L.Ed.2d 444 (1985). Some of the arbitration provisions — like the provisions here — have been contained in form agreements executed before the dispute arose. See, e.g., De Quijas, 490 U.S. at 478, 109 S.Ct. at 1918; McMahon, 482 U.S. at 223, 107 S.Ct. at 2335. 3. Analysis. Nothing in the PMPA suggests that Congress intended to change the general presumption in favor of upholding agreements to submit statutory claims to arbitration. A simple agreement for arbitration of disputes is valid, whether or not contained in a franchise agreement. Such a provision constitutes nothing more than an agreement to substitute one legitimate dispute resolution forum for another and involves no surrender of statutory protections or benefits. However, the fact that franchisees may agree to an arbitral forum for the resolution of statutory disputes in no way suggests that they may be forced by those with dominant economic power to surrender the statutorily-mandated rights' and benefits that Congress intended them to possess. This is certainly true in cases arising under the PMPA, which was enacted to shield franchisees from the gross" }, { "docid": "1353829", "title": "", "text": "policy favoring arbitration.” Gilmer, 500 U.S. at 26, 111 S.Ct. 1647 (quoting Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614, 628, 105 S.Ct. 3346, 87 L.Ed.2d 444 (1985), and Moses H. Cone Memorial Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 24, 103 S.Ct. 927, 74 L.Ed.2d 765 (1983)); accord Lewis Tree, 239 F.Supp.2d at 337; Hale v. First USA Bank, N.A., No. 00 Civ. 5406(JGK), 2001 WL 687371, at *7 (S.D.N.Y. June 19, 2001). Applying such an analysis, the Supreme Court has found that claims under the Sherman Act, ADEA, RICO, the Securities Exchange Act of 1934, and the Securities Act of 1933 are arbitrable. See, e.g., Gilmer, 500 U.S. at 27, 111 S.Ct. 1647 (ADEA); Rodriguez de Quijas v. Shearson/Am. Express, Inc., 490 U.S. 477, 482- 83, 109 S.Ct. 1917, 104 L.Ed.2d 526 (1989) (Securities Act of 1933); Shearson/American Express, Inc. v. McMahon, 482 U.S. 220, 225-26, 107 S.Ct. 2332, 96 L.Ed.2d 185 (1987) (RICO and Securities Exchange Act of 1934); Mitsubishi 473 U.S. at 625, 105 S.Ct. 3346 (Sherman Act). 1. TILA Claims Plaintiffs do not dispute the fact that TILA claims are arbitrable, nor could they. Numerous courts have found TILA claims to be arbitrable. See, e.g., Randolph v. Green Tree Fin. Corp., 244 F.3d 814, 819 (11th Cir.2001); Johnson v. West Suburban Bank, 225 F.3d 366, 377-78 (3d Cir.2000); Sagal v. First USA Bank, N.A., 69 F.Supp.2d 627, 631 (DJDel.), affd, 254 F.3d 1078 (3d Cir.2001); Defreitas v. Am. Gen. Fin., Inc., No. 01 Civ. 2756, 2001 WL 1313203, at *3 (E.D.La. Oct.25, 2001); Lloyd, 2001 WL 194300, at *3; see also Hale, 2001 WL 687371, at *7 (collecting cases). This Court also concludes that plaintiffs’ TILA claims are arbitrable. 2. Horizontal Price-Fixing Claims In Mitsubishi the Supreme Court held that Sherman Act claims of antitrust conspiracy are arbitrable. 473 U.S. at 628-40, 105 S.Ct. 3346. The Supreme Court held that “nothing in the nature of the federal antitrust laws prohibits parties from agreeing to arbitrate antitrust claims.” Shearson/Am. Express v. McMahon, 482 U.S. 220, 239, 107 S.Ct. 2332, 96 L.Ed.2d 185 (1987)" }, { "docid": "17207229", "title": "", "text": "F.2d at 1069. In enacting the FAA, Congress manifested a “liberal federal policy favoring arbitration agreements.” Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20, 25, 111 S.Ct. 1647, 114 L.Ed.2d 26 (1991) (quoting Moses H. Cone, 460 U.S. at 24, 103 S.Ct. 927). The Act’s purpose “was to reverse the longstanding judicial hostility to arbitration agreements that had existed at English common law and had been adopted by American courts, and to place arbitration agreements upon the same footing as other contracts.” Id. at 24, 103 S.Ct. 927. Therefore, “questions of arbitrability must be addressed with a healthy regard for the federal policy favoring arbitration,” Moses H. Cone, 460 U.S. at 24, 103 S.Ct. 927, and courts must “rigorously enforce agreements to arbitrate.” Byrd, 470 U.S. at 221,105 S.Ct. 1238. Even with this strong federal policy in mind, however, arbitration is a matter of contract, and a party cannot be compelled to arbitrate any claims which he or she has not agreed to submit to arbitration. AT & T Technologies, Inc. v. Communications Workers of Am., 475 U.S. 643, 648, 106 S.Ct. 1415, 89 L.Ed.2d 648 (1986). Accordingly, “as with any other contract, the parties’ intentions control, but those intentions are generously construed as to issues of arbitrability.” Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614,'627, 105 S.Ct. 3346, 87 L.Ed.2d 444 (1985). Section 2 of the FAA allows courts to give relief where the party opposing arbitration presents “well supported claims that the agreement to arbitrate resulted from the sort of fraud or overwhelming economic power that would provide grounds ‘for the revocation of any contract.’ ” Rodriguez de Quijas v. Shearson/American Express, Inc., 490 U.S. 477, 483-84,109 S.Ct. 1917, 104 L.Ed.2d 526 (1989) (quoting Mitsubishi Motors, 473 U.S. at 627, 105 S.Ct. 3346; 9 U.S.C.A. S 2). Thus, § 2 “gives States ... method[s] for protecting consumers against unfair pressure to agree to a contract with an unwarranted arbitration provision” both in equity and under principles of contract law. Allied-Bruce Terminix v. Dobson; 513 U.S. 265, 281, 115 S.Ct. 834, 130 L.Ed.2d 753 (1995). Plaintiff bears" }, { "docid": "10828411", "title": "", "text": "S.Ct. 182. However, the tide soon turned. In a trio of cases decided in the 1980s, the Supreme Court enforced arbitration agreements covering claims under the Sherman Act, see Mitsubishi Motors Corp., 473 U.S. at 640, 105 S.Ct. 3346, the Securities Act of 1933, see Rodriguez de Quijas v. Shearson/American Express, Inc., 490 U.S. 477, 483, 109 S.Ct. 1917, 1921, 104 L.Ed.2d 526 (1989), the Securities Exchange Act of 1934, see Shearson/American Express, Inc. v. McMahon, 482 U.S. 220, 238, 107 S.Ct. 2332, 2344, 96 L.Ed.2d 185 (1987), and the civil provisions of the Racketeering Influenced Corrupt Organizations Act (“RICO”), see McMahon, 482 U.S. at 242, 107 S.Ct. 2332. These holdings led the Court to declare in 1991 that “[i]t is now well settled that statutory claims may be the subject of an arbitration agreement, enforceable by the FAA.” Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20, 26, 111 S.Ct. 1647, 1652, 114 L.Ed.2d 26 (1991). The Court addressed its growing acceptance of mandatory arbitration for statutory claims in Gilmer v. Interstate/Johnson Lane Corp., in which the Court upheld the mandatory arbitration of claims under the Age Discrimination in Employment Act, 29 U.S.C. § 621, et seq. See id. at 27, 111 S.Ct. 1647. In permitting the compulsory arbitration of statutory claims, the Court recognized that by “ ‘agreeing to arbitrate a statutory claim, a party does not forgo the substantive rights afforded by the statute; it only submits to their resolution in an arbitral, rather than a judicial, forum.’ ” Id. at 26, 111 S.Ct. 1647 (quoting Mitsubishi, 473 U.S. at 628, 105 S.Ct. 3346). And the Court dismissed generalized attacks on the suitability of arbitral fora as arising from a “ ‘suspicion of arbitration as a method of weakening the protections afforded in the substantive law to would-be complainants.’ ” Id. at 30, 111 S.Ct. 1647 (quoting Rodriguez de Quijas, 490 U.S. at 481, 109 S.Ct. 1917). Such a suspicion, the Court observed, was “far out of step” with the “current strong endorsement” of arbitration. Id. Yet not all statutory claims are amenable to mandatory arbitration. See Mitsubishi," }, { "docid": "7561909", "title": "", "text": "arbitration agreements on the same footing as other contracts. Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20, 25, 111 S.Ct. 1647, 1651, 114 L.Ed.2d 26 (1991) (citations omitted). The Act requires arbitration agreements to be enforced as a general matter, 9 U.S.C. § 2, provides for district courts to issue stays of arbitration when an issue is referable to arbitration, 9 U.S.C. § 3, and provides narrow grounds for a district court to refuse to enforce arbitral decisions. 9 U.S.C. §§ 10-11. The Supreme Court has held that these provisions manifest “a liberal federal policy favoring arbitration agreements.” Moses H. Cone Memorial Hospital v. Mercury Constr. Corp., 460 U.S. 1, 24, 103 S.Ct. 927, 941, 74 L.Ed.2d 765 (1983). Since the mid-1980s, the Supreme Court has made clear that it is not only claims in which contractual rights are asserted which are arbitrable pursuant to the FAA; statutory claims are arbitrable as well. Thus, in the case of Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, 473 U.S. 614, 105 S.Ct. 3346, 87 L.Ed.2d 444 (1985), the Court held that claims raised under the Sherman Antitrust Act were arbitrable. A similar holding was reached with regard to claims brought under § 10(b) of the Securities and Exchange Act of 1934, 15 U.S.C. § 78j(b) and the Racketeer Influenced and Corrupt Organizations Act (RICO), 18 U.S.C. § 1961 et seq., in the ease of Shear son/American Express Inc. v. McMahon, 482 U.S. 220, 107 S.Ct. 2332, 96 L.Ed.2d 185 (1987). Claims arising under the Securities Act of 1933 have also been held to be arbitrable. Rodriguez de Quijas v. Shearson/American Express, 490 U.S. 477, 109 S.Ct. 1917, 104 L.Ed.2d 526 (1989). Finally, there is the case of Gilmer, which held that claims arising under the ADEA are arbitrable. Gilmer, 500 U.S. at 23-36, 111 S.Ct. at 1650-57. The Court has stated that if Congress were to enact a statute which created substantive rights but which also “evinced an intention to preclude a waiver of judicial remedies for [such] statutory rights,” then agreements to arbitrate disputes under that statute would be unenforceable. Mitsubishi, 473" }, { "docid": "1353828", "title": "", "text": "statutes, the Supreme Court has repeatedly acknowledged that “[i]t is by now clear that statutory claims may be the subject of an arbitration agreement, enforceable pursuant to the FAA.” Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20, 26, 111 S.Ct. 1647, 114 L.Ed.2d 26 (1991). The Supreme Court instructs Although all statutory claims may not be' appropriate for arbitration, “[h]aving made the bargain to arbitrate, the party should be held to it unless Congress itself has evidenced an intention to preclude a waiver of judicial remedies for the statutory rights at issue.” In this regard, we note that the burden is on [plaintiff] to show that Congress intended to preclude a waiver of a judicial forum for [his or her statutory] claims. If such an intention exists, it will be discoverable in the text of the [statute], its legislative history, or an “inherent conflict” between arbitration and the [statute’s] underlying purposes. Throughout such an inquiry, it should be kept in mind that “questions of arbitra-bility must be addressed with a healthy regard for the federal policy favoring arbitration.” Gilmer, 500 U.S. at 26, 111 S.Ct. 1647 (quoting Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614, 628, 105 S.Ct. 3346, 87 L.Ed.2d 444 (1985), and Moses H. Cone Memorial Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 24, 103 S.Ct. 927, 74 L.Ed.2d 765 (1983)); accord Lewis Tree, 239 F.Supp.2d at 337; Hale v. First USA Bank, N.A., No. 00 Civ. 5406(JGK), 2001 WL 687371, at *7 (S.D.N.Y. June 19, 2001). Applying such an analysis, the Supreme Court has found that claims under the Sherman Act, ADEA, RICO, the Securities Exchange Act of 1934, and the Securities Act of 1933 are arbitrable. See, e.g., Gilmer, 500 U.S. at 27, 111 S.Ct. 1647 (ADEA); Rodriguez de Quijas v. Shearson/Am. Express, Inc., 490 U.S. 477, 482- 83, 109 S.Ct. 1917, 104 L.Ed.2d 526 (1989) (Securities Act of 1933); Shearson/American Express, Inc. v. McMahon, 482 U.S. 220, 225-26, 107 S.Ct. 2332, 96 L.Ed.2d 185 (1987) (RICO and Securities Exchange Act of 1934); Mitsubishi 473 U.S. at 625, 105 S.Ct. 3346 (Sherman Act)." } ]

[ { "docid": "12547659", "title": "", "text": "rescission in favor of a request for declaratory judgment. A two-day trial was held. At the close of plaintiffs’ case, the district court granted defendants’ motion to dismiss pursuant to Federal Rule of Civil Procedure 41(b). The court’s order of dismissal authorized WCT to seek attorneys’ fees from plaintiffs. The court later awarded defendants $16,-070.40 in attorneys’ fees. Ackley and Cole appeal from the district court’s order of dismissal and from the supplemental order awarding attorneys’ fees. The two appeals were consolidated by order of this court. II Appellees contend that because Ackley and Cole have abandoned their claim for rescission of the 1988-1991 agreement and seek only prospective relief, this case should be dismissed as moot. A case is moot when subsequent events have eradicated the effects of the alleged wrong and there is no reasonable expectation that it will recur. County of Los Angeles v. Davis, 440 U.S. 625, 631, 99 S.Ct. 1379, 1383, 59 L.Ed.2d 642 (1979); Lodge 1380, Bhd. of Ry., Airline & Steamship Clerks (BRAC) v. Dennis, 625 F.2d 819, 822 (9th Cir.1980). Appellees note that the 1988- 1991 agreement had already been in effect for nearly two years at the time of this appeal, and maintain that any need for relief in connection with future ratification proceedings is wholly speculative. A case is not moot if the alleged wrong is “ ‘capable of repetition, yet evading review.’ ” Nebraska Press Ass’n v. Stuart, 427 U.S. 539, 546, 96 S.Ct. 2791, 2797, 49 L.Ed.2d 683 (1976) (quoting Southern Pacific Terminal Co. v. ICC, 219 U.S. 498, 515, 31 S.Ct. 279, 283, 55 L.Ed. 310 (1911)). This standard is met if the duration of the injury is shorter than the time required for litigation, and if there is a reasonable likelihood that the same party will be subject to the injury again. Weinstein v. Bradford, 423 U.S. 147, 149, 96 S.Ct. 347, 348, 46 L.Ed.2d 350 (1975); NAACP v. City of Richmond, 743 F.2d 1346, 1353 (9th Cir.1984). Contrary to appellees’ suggestion, the wrong alleged by Ackley and Cole satisfies this standard. When procedural wrongs involving" } ]

[ { "docid": "14169506", "title": "", "text": "case or controversy requirement of the Constitution requires that moot cases be dismissed; in a moot case, there is no longer the vitality and interest among the parties that our adversary system of justice requires. As the Supreme Court has made clear, the “burden of demonstrating mootness ‘is a heavy one.’ ” County of Los Angeles v. Davis, 440 U.S. 625, 631, 99 S.Ct. 1379, 1383, 59 L.Ed.2d 642 (1979) (quoting United States v. W.T. Grant Co., 345 U.S. 629, 633, 73 S.Ct. 894, 897, 97 L.Ed. 1303 (1953)). In County of Los An-geles v. Davis, the Supreme Court articulated a two part test for mootness: “Simply stated, a case is moot when the issues presented are no longer ‘live’ or the parties lack a legally cognizable interest in the outcome.” We recognize that, as a general rule, “voluntary cessation of allegedly illegal conduct does not deprive the tribunal of power to hear and determine the case, i.e., does not make the case moot.” But jurisdiction, 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. When both conditions are satisfied it may be said that the case is moot because neither party has a legally cognizable interest in the final determination of the underlying questions of fact and law. 440 U.S. at 631, 99 S.Ct. at 1383 (citations omitted). Beyond this mootness test, there are also at least three exceptions to the mootness doctrine. “The first exception concerns a situation where the issues are capable of repetition, yet evading review.” B & B Chemical Co. v. United States Environmental Protection Agency, 806 F.2d 987, 990 (11th Cir.1986). With this test and exception to it in mind, we must consider the effect of the 1986 regulation on this litigation. 1. Claims of the Appellee Hospitals The Secretary argues that the hospitáis were only challenging the 1979 rule, and now that the 1979" }, { "docid": "11523009", "title": "", "text": "if ‘events have so transpired that the decision will neither presently affect the parties’ rights nor have a more-than-speculative chance of affecting them in the future.’ ” Id. (quoting Clarke v. United States, 915 F.2d 699, 701 (D.C.Cir.1990)). A case is moot when “the issues presented are no longer live or the parties lack a legally cognizable interest in the outcome.” City of Erie, 529 U.S. at 287, 120 S.Ct. 1382 (internal quotations omitted). An intervening event may render a claim moot if (1) there is no reasonable expectation that the conduct will recur and (2) interim relief or events have completely and irrevocably eradicated the effects of the alleged violations. Pharmachemie B.V. v. Barr Labs., Inc., 276 F.3d 627, 631 (D.C.Cir.2002); Sellers v. Bureau of Prisons, 959 F.2d 307, 310 (D.C.Cir.1992). A case is not moot, however, so long as any single claim for relief remains viable, as the remaining live issues satisfy the case-or-controversy requirement. Tucson Med. Ctr. v. Sullivan, 947 F.2d 971, 978 (D.C.Cir.1991) (internal quotations and citations omitted). The burden of establishing mootness rests on the party raising the issue, and it is a heavy burden. County of Los Angeles v. Davis, 440 U.S. 625, 631, 99 S.Ct. 1379, 59 L.Ed.2d 642 (1979); United States v. W.T. Grant Co., 345 U.S. 629, 633, 73 S.Ct. 894, 97 L.Ed. 1303 (1953); Motor & Equip. Mfrs. Ass’n v. Nichols, 142 F.3d 449, 458-59 (D.C.Cir. 1998). b. Because the Court Can Provide an Effective Remedy, the Plaintiffs’ Claims Challenging the Composition of the Promotion Boards Are Not Moot The defendants contend that the plaintiffs’ claims challenging the faith group category composition of Chaplain Corps promotion boards should be dismissed as moot because these claims are premised on policies that no longer exist. Defs.’ Mot. for Partial Dismissal at 16. The defendants maintain that adjudicating these claims “would give plaintiffs no prospective relief.” Id. at 18. The plaintiffs respond that dismissal based on mootness is inappropriate because the court can still provide a remedy through a declaration and injunction, notwithstanding the defendants’ change in its policies. Pis.’ Opp’n to Defs.’" }, { "docid": "7248720", "title": "", "text": "to order it to do so.” (Motion to Reconsider at 22.) Defendants carry a heavy burden to establish mootness and must do more than voluntarily cease alleged illegal conduct. As . the Ninth Circuit recently explained: “[A] case is moot when the issues presented are no longer ‘live’ or the parties lack a legally cognizable interest in the outcome.” County of Los Angeles v. Davis, 440 U.S. 625, 631, 99 S.Ct. 1379, 59 L.Ed.2d 642 (1979) (quoting Powell v. McCormack, 395 U.S. 486, 89 S.Ct. 1944, 23 L.Ed.2d 491 (1969)). “Mere voluntary cessation of allegedly illegal conduct does not moot a case; if it did, the courts would be compelled to leave the defendant ... free to return to his old ways.” United States v. Concentrated Phosphate Export Ass’n., 393 U.S. 199, 203, 89 S.Ct. 361, 21 L.Ed.2d 344 (1968) (quoting United States v. W.T. Grant Co., 345 U.S. 629, 632, 73 S.Ct. 894, 97 L.Ed. 1303 (1953)). Nevertheless, part or all of a case may become moot if (1) “subsequent events [have] made it absolutely clear that the allegedly wrongful behavior [cannot] reasonably be expected to recur,” Concentrated Phosphate, 393 U.S. at 203, and (2) “interim relief or events have completely and irrevocably eradicated the effects of the alleged violation.” Lindquist v. Idaho State Bd. of Corrections, 776 F.2d 851, 854 (9th Cir.1985) (quoting Davis, 440 U.S. at 631). Norman-Bloodsaw v. Lawrence Berkely Lab., 135 F.3d 1260 (9th Cir.1998). Until the Corps, actually completes the consultations, there is still a live ESA controversy. For example, the Corps, and FWS appear to be at odds regarding the proper scope of the consultation. Defendants submitted that it had already entered into a programatic consultation with FWS which mooted the issue. In its previous Order, the Court did not reach the merits to determine whether the “may effect” standard had been met, as a matter of law, because it reasoned that Defendants’ decision to voluntarily enter into § 7 consultation must have been based on a “may effect” determination. Accordingly, IT IS ORDERED that Defendants’ Motion to Reconsider is DENIED and Defendants’" }, { "docid": "5370693", "title": "", "text": "72 S.Ct. 690, 695, 96 L.Ed. 978 (1952). Although some very positive steps have been taken by current administrators, that does not by itself defeat the court’s power to issue injunctive relief. “Mere voluntary cessation of allegedly illegal conduct does not moot a case; ... a case might become moot if subsequent events made it absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur.” United States v. Phosphate Export Ass’n., 393 U.S. 199, 203, 89 S.Ct. 361, 364, 21 L.Ed.2d 344 (1968). In cases involving challenges to prison practices, federal courts in this Circuit have not been reluctant to issue injunctive relief in spite of substantial voluntary improvements by prison officials. See Eng v. Smith, 849 F.2d 80, 83 (2d Cir.1988); Fisher v. Koehler, 692 F.Supp. 1519, 1565-66 (S.D.N.Y.1988). The test for mootness in cases such as this is a “stringent” one, with the burden resting heavily on the defendant to prove the absence of a likelihood that the illegality will recur. See United States v. W.T. Grant Co., 345 U.S. 629, 632, 73 S.Ct. 894, 897, 97 L.Ed. 1303 (1953); Jones v. Diamond, 636 F.2d 1364, 1375 (5th Cir.1981), overruled on other grounds, International Woodworkers of America v. Champion Int’l Corp., 790 F.2d 1174 (5th Cir.1986) (en banc). In County of Los Angeles v. Davis, 440 U.S. 625, 631, 99 S.Ct. 1379, 1383, 59 L.Ed.2d 642 (1979), the Supreme Court held that jurisdiction, 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. Under this strict standard, defendants have not convinced me that this case is moot and that the Court should decline further involvement in spite of plaintiffs’ proof that serious discriminatory acts occurred in the past. There was some testimony at trial concerning the remedial measures that defendants have taken to rectify discrimination in housing and in jobs. Richard Cerio, a Senior Corrections Counselor, testified" }, { "docid": "629251", "title": "", "text": "is no longer at issue because the award to O’Gara was cancelled prior to the filing of the complaint in this case, and GSA is taking corrective action that will include re-procuring the requirement.” Def.’s Mot. 15. Defendant argues that “[o]nce the award to O’Gara was cancelled, any alleged injury stemming from that award was eliminated, and there is no case or controversy for this Court to adjudicate.” Id. Although framed as a challenge to plaintiffs Article III standing, see id. at 14-17, defendant essentially argues that GSA’s cancellation of the award and proposed corrective action renders the original evaluation of proposals and award moot, cf. Sinochem Int’l Co. v. Malaysia Int’l Shipping Corp., 549 U.S. 422, 431, 127 S.Ct. 1184, 167 L.Ed.2d 15 (2007) (“[A] federal court has leeway to choose among threshold grounds for denying audience to a case on the merits.” (internal quotation marks omitted)). The mootness doctrine is one of several justiciability doctrines that applies to this court. “A case becomes moot — and therefore no longer a ‘Case’ or ‘Controversy’ for purposes of Article III — Vhen the issues presented are no longer ‘live’ or the parties lack a legally cognizable interest in the outcome.’” Already, LLC v. Nike, Inc., — U.S. -, 133 S.Ct. 721, 726, 184 L.Ed.2d 553 (2013) (quoting Murphy v. Hunt, 455 U.S. 478, 481, 102 S.Ct. 1181, 71 L.Ed.2d 353 (1982)- (per curiam)). “[A]s a general rule, Voluntary cessation of allegedly illegal conduct ... does not make the case moot.’ ” Los Angeles Cnty. v. Davis, 440 U.S. 625, 631, 99 S.Ct. 1379, 59 L.Ed.2d 642 (1979) (quoting United States v. W.T. Grant Co., 345 U.S. 629, 632, 73 S.Ct. 894, 97 L.Ed. 1303 (1953)). Instead, a case becomes moot when it is unreasonable to expect “that the alleged violation will recur, and ... interim relief or events have completely and irrevocably eradicated the effects of the alleged violation.” Id. (internal citations omitted). Thus, when “corrective action adequately addresse[s] the effects of the challenged action, and the Court of Federal Claims ha[s] no reasonable expectation that the action would recur,”" }, { "docid": "7501719", "title": "", "text": "show any continuing or future threat to Berkshire’s rights or interests as the owner or operator of a CATV system. Yet, it is the specific threat to those rights or interests, and not the simple existence of some allegedly unlawful conduct in the world, that created the concrete “case” or “controversy” permitting jurisdiction in the first place. The elimination of that threat to Berkshire’s allegedly protected interests moots the controversy. The Supreme Court, in County of Los Angeles v. Davis, 440 U.S. 625, 99 S.Ct. 1379, 59 L.Ed.2d 642 (1979), summarized the doctrine of mootness as follows: “Simply stated, a case is moot when the issues presented are no longer ‘live’ or the parties lack a legally cognizable interest in the outcome.” Powell v. McCormack, 395 U.S. 486, 496 [89 S.Ct. 1944, 1951, 23 L.Ed.2d 491] (1969). We recognize that, as a general rule, “voluntary cessation of allegedly illegal conduct does not deprive the tribunal of power to hear and determine the case, i.e., does not make the case moot.” United States v. W.T. Grant Co., 345 U.S. 629, 632 [73 S.Ct. 894, 897, 97 L.Ed. 1303] (1953). But jurisdiction, properly acquired, mayábate 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, see id., at 633 [73 S.Ct. at 897]; see also SEC v. Medical Committee for Human Rights, 404 U.S. 403 [92 S.Ct. 577, 30 L.Ed.2d 560] (1972), and (2) interim relief or events have completely and irrevocably eradicated the effects of the alleged violation. See, e.g., DeFunis v. Odegaard, 416 U.S. 312 [94 S.Ct. 1704, 40 L.Ed.2d 164] (1974); Indiana Employment Security Div. v. Bur-ney, 409 U.S. 540 [93 S.Ct. 883, 35 L.Ed.2d 62] (1973). When both conditions are satisfied it may be said that the case is moot because neither party has a legally cognizable interest in the final determination of the underlying questions of fact and law. Id. at 631, 99 S.Ct. at 1383. The second condition to which the Court refers — complete eradication of the effects of" }, { "docid": "4229925", "title": "", "text": "Department’s Office of Hearings and Appeals concluded that a remedial order should issue against ARCO in the Property Case. Property Case, supra note 29 (Mar. 22, 1984). The agency stated that it did not make any findings adverse to ARCO because of the latter’s refusal to comply with the discovery order, id. at 135-137, and on this ground the Department argues that the Property Case is now moot. We do not agree. One of ARCO’s principal contentions is that the Department is wholly without power to promulgate a remedial order predicated upon price-control adjudication, and surely the case is not moot with respect to this issue. Nor can we say that the controversy over the discovery sanction, see text supra at note 33, has lost its vitality. As we recently pointed out, [t]wo conditions ... must be satisfied if a federal court is to dismiss a case as moot. First, the court must conclude \"with assurance that ‘there is no reasonable expectation ...’ that the alleged violation will recur” ... [and] second, ... it must be plain that \"interim relief or events have completely and irrevocably eradicated the effects of the alleged violation.” Doe v. Harris, 225 U.S.App.D.C. 27, 29, 696 F.2d 109, 111 (1982), quoting County of Los Angeles v. Davis, 440 U.S. 625, 631, 99 S.Ct. 1379, 1383, 59 L.Ed.2d 642, 649 (1979) (citations omitted). The Department makes no effort to show that resort to a similar discovery order is unlikely in other ongoing departmental enforcement pro ceedings against ARCO. Moreover, ARCO asserts, without contradiction by the Department, that the effects of the sanctioning order already issued in the Property Case have not been \"irrevocably eradicated.” Letter from David L. Roll, counsel for ARCO, to George A. Fisher, Clerk, at 3 (Apr. 10, 1984). The burden was on the Department to demonstrate mootness, County of Los Angeles v. Davis, 440 U.S. 625, 631, 99 S.Ct. 1379, 1383, 59 L.Ed.2d 642, 649 (1979); United States v. W.T. Grant Co., 345 U.S. 629, 632-633, 73 S.Ct. 894, 897-898, 97 L.Ed. 1303, 1309 (1953), and this the Department has not done." }, { "docid": "9657663", "title": "", "text": "a public interest in having the legality of the practices settled, militates against a mootness conclusion. For to say that the case has become moot means that the defendant is entitled to a dismissal as a matter of right. The courts have rightly refused to grant defendants such a powerful weapon against public law enforcement. United States v. W.T. Grant Co., 345 U.S. 629, 632, 73 S.Ct. 894, 897, 97 L.Ed. 1303 (1953) (citations omitted); see also County of Los Angeles v. Davis, 440 U.S. 625, 631, 99 S.Ct. 1379, 1383, 59 L.Ed.2d 642 (1979). The Government contends, however, that the Air Force’s promise to desist from following the challenged practice should render this suit moot. This contention must fail because, on the facts of this case, the Government has not come close to satisfying the heavy burden of demonstrating “that ‘there is no reasonable expectation ... ’ that the alleged violation will recur.” County of Los Angeles, 440 U.S. at 631, 99 S.Ct. at 1383 (quoting W.T. Grant, 346 U.S. at 633, 73 S.Ct. at 897). As the Court noted in W.T. Grant: The case may nevertheless be moot if the defendant can demonstrate that “there is no reasonable expectation that the wrong will be repeated.” The burden is a heavy one. Here the defendants told the court that the interlockfing directorates] no longer existed and disclaimed any intention to revive them. Such a profession does not suffice to make a case moot although it is one of the factors to be considered in determining the appropriateness of granting an injunction against the now-discontinued acts. 345 U.S. at 633, 73 S.Ct. at 897 (footnote omitted). The principles enunciated in W.T. Grant and County of Los Angeles control our resolution of this issue. The Government has offered only modest assurance, in the form of an affidavit by an Air Force major, that the contested practice will not be reinstated. Major McLaughlin’s claim that Payne’s requests for bid abstracts “will not be denied in the future based solely on a limited competition situation” seems to be founded on her own inference" }, { "docid": "5433417", "title": "", "text": "concludes that Warren’s preapplication residency requirement had a disparate impact on blacks and, thus, violated § 703(a)(2) of Title VII. The Court grants summary judgment in favor of the Government on its claim that Warren’s preapplication residency requirement had a disparate impact on blacks in violation of Title VII. B. Assuming Warren violated Title VII by having a preapplication residency requirement prior to 1986, did Warren’s actions to eliminate that preapplication residency requirement, to eliminate eligibility lists, and to expand its recruitment render the issue [issue “A”] moot? Warren argues that, even if it violated Title VII by having a preapplication residency requirement prior to 1986, its actions subsequent to that time have rendered moot any claim the Government may have against it as to the Title VII violation. As support for its argument Warren mainly relies on County of Los Angeles v. Davis, 440 U.S. 625, 99 S.Ct. 1379, 59 L.Ed.2d 642 (1979). In this case, the Supreme Court stated that a case may become moot when: (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. Id., 440 U.S. at 631, 99 S.Ct. at 1383 (citations omitted). The Court reasoned: “When both conditions are satisfied it may be said that the case is moot because neither party has a legally cognizable interest in the final determination of the underlying questions of fact and law.” Id. The Court further stated: “The burden of demonstrating mootness ‘is a heavy one.’ ” Id. (emphasis added) (quoting United States v. W.T. Grant Co., 345 U.S. 629, 632-33, 73 S.Ct. 894, 897, 97 L.Ed. 1303 (1953)). Warren asserts that it has met both of the standards set forth in Davis because it has endeavored to eradicate any effects the residency requirement may have had on blacks with regard to the City’s recruitment (and hiring) efforts. In support of this assertion Warren details its recruitment efforts subsequent to its repeal of the residency requirement, to wit: elimination" }, { "docid": "7280712", "title": "", "text": "of the promised EIS. It does not bind any agency defendant other than DOE. It does not speak to the issue of continued federal participation in the Interagency Group, in issuing permits for various aspects of the Project, in advising and consulting with state and private interests working on the Project. All of this plaintiffs seek to enjoin; the suit cannot be moot as long as the government ignores these additional demands. 4. The “Voluntary Cessation” Exception to the Mootness Doctrine Even if DOE’s promises were sufficient to deprive the court of jurisdiction under traditional notions of mootness, these facts fall squarely within a well-established exception to the mootness doctrine: “the voluntary cessation of allegedly illegal conduct.” United States v. W.T. Grant Co., 345 U.S. 629, 632, 73 S.Ct. 894, 897, 97 L.Ed. 1303 (1953), quoted in County of Los Angeles v. Davis, 440 U.S. 625, 631, 99 S.Ct. 1379, 1383, 59 L.Ed.2d 642 (1979). The U.S. Supreme Court has recognized that, as a general rule, such voluntary cessation will not deprive the court of jurisdiction. Id.; see also Armster v. United States District Court, 806 F.2d 1347, 1357 (9th Cir.1986) (“a change of activity by a defendant under the threat of judicial scrutiny is insufficient to negate the existence of an otherwise ripe case or controversy”). The “voluntary cessation” exception is rooted in the policy that a party should not be able to insulate itself from any challenge to its illegal conduct simply by suspending the illegal activity whenever a legal action is brought; otherwise there would be no check on that party’s resumption of the conduct after dismissal of the legal action. Accordingly, in such cases, the matter can be deemed moot only if (1) “ ‘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.” Davis, 440 U.S. at 631, 99 S.Ct. at 1383 (quoting Grant, 345 U.S. at 633, 73 S.Ct. at 898) (other citations omitted). As applied by the Supreme Court, this test imposes a" }, { "docid": "2721161", "title": "", "text": "for relief is moot. Courts must evaluate mootness “through all stages” of the litigation in order to ensure that a live controversy remains. 21st Century Telesis Joint Venture v. Fed. Commc’ns Comm’n, 318 F.3d 192, 198 (D.C.Cir.2003) (citing Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 191, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000) and Lewis v. Cont’l Bank Corp., 494 U.S. 472, 477, 110 5.Ct. 1249, 108 L.Ed.2d 400 (1990)). As a result, “[e]ven where litigation poses a live controversy when filed, the [mootness] doctrine requires a federal court to refrain from deciding it if ‘events have so transpired that the decision will neither presently affect the parties’ rights nor have a more-than-speculative chance of affecting them in the future.’ ” Id. (quoting Clarke v. United States, 915 F.2d 699, 701 (D.C.Cir. 1990)). A case is moot when “the issues presented are no longer live or the parties lack a legally cognizable interest in the outcome.” City of Erie, 529 U.S. at 287, 120 S.Ct. 1382 (internal quotations omitted). An intervening event may render a claim moot if (1) there is no reasonable expectation that the conduct will recur and (2) interim relief or events have completely and irrevocably eradicated the effects of the alleged violations. Pharmachemie B.V. v. Barr Labs., Inc., 276 F.3d 627, 631 (D.C.Cir.2002); Sellers v. Bureau of Prisons, 959 F.2d 307, 310 (D.C.Cir. 1992). A case is not moot, however, so long as any single claim for relief remains viable, as the remaining live issues satisfy the case-or-controversy requirement. Tucson Med. Ctr. v. Sullivan, 947 F.2d 971, 978 (D.C.Cir.1991) (internal quotations and citations omitted). The burden of establishing mootness rests on the party raising the issue, and it is a heavy burden. County of Los Angeles v. Davis, 440 U.S. 625, 631, 99 S.Ct. 1379, 59 L.Ed.2d 642 (1979); United States v. W.T. Grant Co., 345 U.S. 629, 633, 73 S.Ct. 894, 97 L.Ed. 1303 (1953); Motor & Equip. Mfrs. Ass’n v. Nichols, 142 F.3d 449, 458-59 (D.C.Cir.1998). c. Plaintiff Twitty’s Claims Are Moot The defendants argue that because" }, { "docid": "22161735", "title": "", "text": "63 Fed. Reg. 35299, 35303 (1998) (Order Granting Approval). The rule change became effective on January 1, 1999. See id. As a result, the NASD argues that many of Desiderio’s claims have become moot. As a general rule, in a case involving an allegation that defendant has engaged in illegal activity, a court’s power to hear and decide the matter is not terminated when defendant voluntarily ceases its illegal conduct. That is, such cessation does not necessarily make a case moot. See County of Los Angeles v. Davis, 440 U.S. 625, 631, 99 S.Ct. 1379, 59 L.Ed.2d 642 (1979) (citing United States v. W.T. Grant Co., 345 U.S. 629, 632, 73 S.Ct. 894, 97 L.Ed. 1303 (1953)); New York State Nat’l Org. for Women v. Terry, 159 F.3d 86, 91-92 (2d Cir.1998), cert. denied sub nom. Pearson v. Planned Parenthood Margaret Sanger Clinic, — U.S. -, -, -, 119 S.Ct. 2336, 144 L.Ed.2d 234, 67 U.S.L.W. 3570, 3754, 3756 (1999). A case may nevertheless be moot if the defendant can demonstrate that: “(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.” Davis, 440 U.S. at 631, 99 S.Ct. 1379. The burden of demonstrating mootness “is a heavy one.” Id.; W. T. Grant Co., 345 U.S. at 633, 73 S.Ct. 894; Terry, 159 F.3d at 91. The NASD amended its rales voluntarily. See Order Granting Approval, 63 Fed. Reg. 35299, 35300. In light of proof that the rale change was partially prompted by political concerns such as letters from members of Congress, see id. at 35300, the NASD has not met its burden of showing that there is no reasonable expectation that this rule will ever be reinstated, see Davis, 440 U.S. at 631, 99 S.Ct. 1379. Securities firms who are members of the NASD may have an interest in lobbying to reimpose the mandatory arbitration rale with respect to statutory discrimination claims, and there is no evidence that such lobbying would" }, { "docid": "18253928", "title": "", "text": "interest in the outcome.” County of Los Angeles v. Davis, 440 U.S. 625, 631, 99 S.Ct. 1379, 59 L.Ed.2d 642 (1979) (quoting Powell v. McCormack, 395 U.S. 486, 496, 89 S.Ct. 1944, 23 L.Ed.2d 491 (1969)) (internal quotation marks omitted). “Federal courts lack jurisdiction to decide moot cases because their constitutional authority extends only to actual cases or controversies.” Iron Arrow Honor Soc’y v. Heckler, 464 U.S. 67, 70, 104 S.Ct. 373, 78 L.Ed.2d 58 (1983). This case is moot because in their complaint plaintiffs challenged only the legality of the Navy’s alleged Thirds Policy, but even they admit that the Thirds Policy ended in 2001 and that the Navy now maintains no religious quotas. Plaintiffs nonetheless insist their claim remains live, but each of their three arguments fails. First, as plaintiffs correctly point out, a defendant’s voluntary cessation of a challenged practice moots a case only if the defendant shows that: (1) “ ‘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.” Davis, 440 U.S. at 631, 99 S.Ct. 1379 (quoting United States v. W.T. Grant Co., 345 U.S. 629, 633, 73 S.Ct. 894, 97 L.Ed. 1303 (1953)). Plaintiffs argue that the Navy flunked condition one because it failed to prove that it wouldn’t reinstitute the Thirds Policy and condition two because it still uses the CARE Board. As to the first condition, because plaintiffs never allege that the Navy is likely to or even considering reinstituting the Thirds Policy, there is “ ‘no reasonable expectation ... ’ that the alleged violation will recur.” Id. (quoting Grant, 345 U.S. at 633, 73 S.Ct. 894). Plaintiffs point out that the Navy still has authority to reinstitute the policy, but “the mere power to reenact a challenged [policy] is not a sufficient basis on which a court can conclude that a reasonable expectation of recurrence exists. Rather, there must be evidence indicating that the challenged [policy] likely will be reenacted.” Nat’l Black Police Ass’n v. District of Columbia, 108 F.3d" }, { "docid": "11071821", "title": "", "text": "915 F.2d at 700-01 (quotation omitted). The case now before the court is moot. B. No Exceptions to Mootness Are Present in This Case The only remaining question is whether there are any exceptions to mootness that are applicable to this case. There are two [principal] exceptions to mootness. The first pertains to situations in which “the challenged action was in its duration too short to be fully litigated prior to its cessation or expiration,” yet there is a “demonstrated probability that the same controversy will recur involving the same complaining party.” Murphy v. Hunt, 455 U.S. 478, 482 [102 S.Ct. 1181, 71 L.Ed.2d 353] (1982) (per curiam). The second exception involves a party’s “voluntary cessation” of the challenged activity. As a general rule, a defendant’s “voluntary cessation of allegedly illegal conduct does not deprive [a court] of power to hear and determine the case.” County of Los Angeles v. Davis, 440 U.S. 625, 681 [99 S.Ct. 1379, 59 L.Ed.2d 642] (1979). Voluntary cessation will only moot a case if “there is no reasonable expectation ... that the alleged violation will recur” and “interim relief or events have completely and irrevocably eradicated the effects of the alleged violation.” Id. The defendant carries the burden of demonstrating “that there is no reasonable expectation that the wrong will be repeated,” and “[t]he burden is a heavy one.” United States v. W.T. Grant Co., 345 U.S. 629, 633 [73 S.Ct. 894, 97 L.Ed. 1303] (1953). Harry T. Edwards & Linda A. Elliott, Federal Standards of Review — Review of District Court Decisions and Agency Actions 114-15 (2007) (second and third alterations in original). Neither exception applies in this case. This case does not fall within the “capable of repetition, yet evading review” exception, Murphy v. Hunt, 455 U.S. 478, 482, 102 S.Ct. 1181, 71 L.Ed.2d 353 (1982) (per curiam), because recurrence of the challenged activity will not “evade review” should the parties’ dispute recur. Even if the Commission were to adopt a revised regulatory scheme under the amended statute that purports to regulate attorneys, the new regulation will be subject to judicial review" }, { "docid": "22878881", "title": "", "text": "present film. Absent in this record, however, is an explanation of why Plaintiffs waited three months to submit additional evidence, and then as part of a Rule 59(e) motion. When one considers that Plaintiffs submitted largely historical evidence and that the affidavits submitted were not dated until March 25, 1990, it is evident that the Plaintiffs have not met their burden of showing diligence. They have not demonstrated that the evidence was newly discovered or unavailable in a more timely fashion through the exercise of diligence. Plainly, the district court did not abuse its discretion in denying Plaintiff's motion for reconsideration. II. Are Plaintiffs’ equitable claims moot? We next consider whether the district court abused its discretion insofar as it determined that plaintiffs’ request for injunctive relief was moot, especially in light of the 1991 policy. The mootness inquiry goes “to the exercise rather than the existence of judicial power.” City of Mesquite v. Aladdin’s Castle, Inc., 455 U.S. 283, 289, 102 S.Ct. 1070, 1074, 71 L.Ed.2d 152 (1982). A claim is moot when no reasonable expectation exists that the alleged violation will recur and interim relief of events have eliminated the effects of the alleged violation. County of Los Angeles v. Davis, 440 U.S. 625, 631, 99 S.Ct. 1379, 1383, 59 L.Ed.2d 642 (1979). The voluntary cessation of allegedly unlawful conduct does not necessarily make a case moot, unless defendants can establish no reasonable expectation of the wrong’s recurrence. United States v. W.T. Grant Co., 345 U.S. at 632-33, 73 S.Ct. at 897. The latter is a heavy burden, and such a showing must be weighed against the possibility of recurrence and the public interest in having the case decided. Id. Even though the allegedly unlawful conduct has abated, the court may grant in-junctive relief, “[b]ut the moving party must satisfy the court that relief is needed,” that there is “some cognizable danger of recurrent violation.” Id. at 633, 73 S.Ct. at 898. Plaintiffs sought an injunction allowing the film to be shown and enjoining the defendants from future unconstitutional content-based discrimination and prior restraint of scheduled activities. I" }, { "docid": "17804477", "title": "", "text": "Hilton has not met its burden of demonstrating mootness in the context of controlling case law. “Simply stated, a case is moot when the issues presented are no longer ‘live’ or the parties lack a legally cognizable interest in the outcome.” County of Los Angeles v. Davis, 440 U.S. 625, 631, 99 S.Ct. 1379, 59 L.Ed.2d 642 (1979) (citing Powell v. McCormack, 395 U.S. 486, 496, 89 S.Ct. 1944, 23 L.Ed.2d 491, (1969)). Thus, when two conditions are satisfied: (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” — a case is moot “because neither party has a legally cognizable interest in the final determination of the underlying questions of fact and law.” Id. However, “voluntary cessation of allegedly illegal conduct” rarely moots a case because it leaves the defendant “free to return to his old ways.” United States v. W.T. Grant Co., 345 U.S. 629, 633, 73 S.Ct. 894, 97 L.Ed. 1303 (1953); see also Friends of the Earth, Inc. v. Laidlaw Envtl. Servs., 528 U.S. 167, 173-74, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000) (“[t]he appellate court erred in concluding that a citizen suitor’s claim for civil penalties must be dismissed as moot when the defendant, albeit after commencement of the litigation, has come into compliance”). Because a court’s finding that a case is moot would entitle the defendant to a dismissal as of right, courts have been reluctant “to grant defendants such a powerful weapon against public law enforcement” because there is “a public interest in having the legality of ... practices settled.” W.T. Grant Co., 345 U.S. at 632-33, 73 S.Ct. 894. For this reason, the Supreme Court has emphasized that a defendant’s burden to demonstrate mootness is substantial and difficult to satisfy: the standard we have announced for determining whether a case has been mooted by the defendant’s voluntary conduct is stringent: ‘A case might become moot if subsequent events made it absolutely clear that the allegedly wrongful" }, { "docid": "5697146", "title": "", "text": "Court on remand may entertain a request for attorney’s fees. 42 U.S.C. § 2000e-5(k) (1976). . Appellee has argued that an injunction is improper and unnecessary in this case since Bundy has complained of no instances of sexual harassment since 1975 and there is therefore no reason to think further harassment will occur. Common sense tells us that the men who harassed Bundy may well have ceased their actions solely because of the pendency of her complaint and lawsuit. Moreover, the law tells us that a suit for injunctive relief does not become moot simply because the offending party has ceased the offending conduct, since the offending party might be free otherwise to renew that conduct once the court denied the relief. Allee v. Medrano, 416 U.S. 802, 810-811, 94 S.Ct. 2191, 2197-2198, 40 L.Ed.2d 566 (1974). The request for injunctive relief will be moot only where there is no reasonable expectation that the conduct will recur, United States v. W. T. Grant Co., 345 U.S. 629, 73 S.Ct. 894, 97 L.Ed.2d 1303 (1953), or where interim events have “completely and irrevocably eradicated the effects of the alleged violation,” County of Los Angeles v. Davis, 440 U.S. 625, 631, 99 S.Ct. 1379, 1383, 59 L.Ed.2d 642 (1979). We perceive no such certainty here, most obviously because Bundy’s agency has taken no affirmative steps to prevent recurrence of the harassment, and because all the harassing employees still work for the agency. The issuance of Mayor’s Order No. 79-89 (May 24, 1979), see text and note at note 14 infra, does not provide any certainty that the offending conduct' will not recur. . On October 31, 1975 the Mayor of the District of Columbia issued Mayor’s Order No. 75-230, prohibiting employment discrimination on the basis of sex and other improper factors in all District agencies. On May 24, 1979 May- or Barry amended Order No. 75-230 with May- or’s Order No. 79-89, which construes illegal sexual discrimination to include sexual harassment, requires the District’s Office of Human Rights to receive and adjudicate any complaints of sexual harassment of District employees according to" }, { "docid": "22878882", "title": "", "text": "reasonable expectation exists that the alleged violation will recur and interim relief of events have eliminated the effects of the alleged violation. County of Los Angeles v. Davis, 440 U.S. 625, 631, 99 S.Ct. 1379, 1383, 59 L.Ed.2d 642 (1979). The voluntary cessation of allegedly unlawful conduct does not necessarily make a case moot, unless defendants can establish no reasonable expectation of the wrong’s recurrence. United States v. W.T. Grant Co., 345 U.S. at 632-33, 73 S.Ct. at 897. The latter is a heavy burden, and such a showing must be weighed against the possibility of recurrence and the public interest in having the case decided. Id. Even though the allegedly unlawful conduct has abated, the court may grant in-junctive relief, “[b]ut the moving party must satisfy the court that relief is needed,” that there is “some cognizable danger of recurrent violation.” Id. at 633, 73 S.Ct. at 898. Plaintiffs sought an injunction allowing the film to be shown and enjoining the defendants from future unconstitutional content-based discrimination and prior restraint of scheduled activities. I R. doc. 1 at 25. Concerning whether a request for injunctive relief is moot, [t]he chancellor’s decision is based on all the circumstances; his discretion is necessarily broad and a strong showing of abuse must be made to reverse it. To be considered are the bona fides of the expressed intent to comply, the effectiveness of the discontinuance and, in some cases, the character of past violations. W.T. Grant Co., 345 U.S. at 633, 73 S.Ct. at 898. In this case, we have the Regents’ expressed intent to comply, an effective discontinuance accompanied by a new policy and alleged past violations of a somewhat dissimilar nature, which the district court viewed as too remote. An injunction concerning the showing of The Last Temptation of Christ plainly would be moot; the film was adver tised and shown on the dates it was originally scheduled. Insofar as prospective in-junctive relief, Plaintiffs subsequently urged the Defendants to adopt a new policy concerning prior restraint and content-based discrimination. The university administration then appointed a Freedom of Expression Committee which" }, { "docid": "740258", "title": "", "text": "could not reasonably be expected to recur.’ ” Id. (quoting United States v. Concentrated Phosphate Exp. Ass’n, 393 U.S. 199, 203, 89 S.Ct. 361, 21 L.Ed.2d 344 (1968)). The party asserting mootness — in this case Harris County — bears the “ ‘heavy burden of persuafding]’ the court that the challenged conduct cannot reasonably be expected to start up again.” Id. Despite the majority’s assertion to the contrary, it is not at all clear that Harris County’s voluntary removal of the monument caused this case to become moot. Rather, Harris County’s placement of the monument in storage pending completion of the Courthouse renovations mooted this case only if that act made it absolutely clear that the Establishment Clause violation alleged to have occurred in this case could not reasonably be expected to recur. Id. at 193, 120 S.Ct. 693. This is a disputed factual matter, as to which no record has been developed because the issue of mootness was raised for the first time by this Court. Although Harris County asserts in its appellate brief that the redesign of the Courthouse will make it a “physical impossibility” to return the monument to its precise former location, such an assertion is not sufficient to satisfy the heavy burden of persuasion borne by Harris County, particularly since Harris County has made clear its intention to redisplay the monument once the renovations are complete. See Concentrated Phosphate Exp. Ass’n, 393 U.S. at 203, 89 S.Ct. 361 (citing United States v. W.T. Grant Co., 345 U.S. 629, 633, 73 S.Ct. 894, 97 L.Ed. 1303 (1953)); Gates v. Cook, 376 F.3d 323, 337 (5th Cir.2004). Without any factual development on the nature and extent of the Courthouse renovations and what, if any, lasting impact they will have on the monument, it cannot “be said with assurance that there is no reasonable expectation that the alleged violation will recur” or that Harris County’s recent actions “have completely and irrevocably eradicated the effects of the alleged violation.” County of Los Angeles v. Davis, 440 U.S. 625, 631, 99 S.Ct. 1379, 59 L.Ed.2d 642 (1979) (internal quotation marks" }, { "docid": "18817624", "title": "", "text": "in that home. A seizure of an entire workplace is also subject to the requirements of individualized suspicion. Sureck, supra. The evidence presented in this case establishes that the farm and ranch checks conducted in farm labor housing units resulted in the seizure of the residents of the housing without individualized suspicion of illegal alienage. These objectionable procedures were discontinued in 1979, and have not been resumed. Therefore, I must address the mootness issue. The test for determining when a case is moot was succinctly stated by the Supreme Court in Powell v. McCormack, 395 U.S. 486, 496, 89 S.Ct. 1944, 1950, 23 L.Ed.2d 491 (1969). Simply stated, a case is moot when the issues presented are no longer “live” or the parties lack a legally cognizable interest in the outcome. A case has become moot during the pendency of litigation when (1) it can be said with assurance that “there is no reasonable expectation ...” that the alleged violation will recur, (2) interim relief or events have completely and irrevocably eradicated the effects of the alleged violation. County of Los Angeles v. Davis, 440 U.S. 625, 631, 99 S.Ct. 1379, 1383, 59 L.Ed.2d 642 (1979) (citations omitted). When both conditions are satisfied the case is moot because neither party has the required “legally cognizable interest” in the final determination of the issues raised in the case. The burden of demonstrating mootness, which the defendants bear, is “a heavy one.” United States v. W.T. Grant Co., 345 U.S. 629, 632-633, 73 S.Ct. 894, 897, 97 L.Ed. 1303 (1953). The defendants contend that there is no reasonable expectation that the Fourth Amendment violations will recur because farm and ranch checks have not been resumed within the Spokane Sector and the INS national policy is to concentrate enforcement activities on places of employment. Voluntary cessation of activity during pendency of a lawsuit challenging such activity does not assure that the challenged activity will not be resumed. Lankford v. Gelston, 364 F.2d 197 (4th Cir.1966). The national policy of the INS to treat farm labor housing as a place of employment and to" } ]

[ { "docid": "23126932", "title": "", "text": "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 (10th Cir.2011); United States v. Shaw, 292 Fed.Appx. 728, 731 (10th Cir.2008); United States v. Macias, 229 Fed.Appx. 683, 687 (10th Cir.2007); United States v. Davis, 218 Fed.Appx. 782, 784 (10th Cir.2007). But see United States v. Lauer, 236 Fed.Appx. 462 (10th Cir.2007). . Mr. Viera argues his plea was involuntary on other bases, but he was not granted COA on those issues and, as we discuss later in the opinion, we find his arguments to be without merit. . A later case, United States v. Guerrero, relied on Gairett to note that if the defendant “actually asked counsel to perfect an appeal, and counsel ignored the request, he will be entitled to a delayed appeal.” 488 F.3d 1313, 1315 (10th Cir.2007) (quoting Garrett, 402 F.3d at 1267). However, in Guerrero, as in Garrett, the government failed to raise the waiver issue. Id. (\"The government concedes that this legal authority requires remand for an evidentiary hearing when a defendant claims in a sworn § 2555 motion that he directed counsel to file a notice of" } ]

[ { "docid": "23069351", "title": "", "text": "is any other flaw in the colloquy. Indeed, the colloquy amply demonstrates that the District Court took care to apprise Mabry of the consequences of the waiver and ensure that he understood the terms of the plea agreement and entered into it willingly. Accordingly, we conclude that the waiver was knowing and voluntary. B. Counsel’s Failure to File an Appeal Generally, having determined that the waiver was knowing and voluntary, we would consider whether its enforcement would work a miscarriage of justice in this case. Mabry, however, asserts that, even assuming that the waiver is knowing and voluntary, it should not be enforced, because there is a different standard when the defendant complains that he requested that counsel file an appeal and counsel failed to do so. Mabry argues that, under the Supreme Court’s decision in Roe v. Flores-Ortega, 528 U.S. 470, 120 S.Ct. 1029, 145 L.Ed.2d 985 (2000), a presumption of prejudice applies where counsel fails to file a requested appeal even if the defendant has waived his appeal rights, and that, somehow, this requires us to remand for an evidentiary hearing even in the face of a waiver of collateral review. He relies heavily on the decision of the Court of Appeals for the Second Circuit in Campusano v. United States, 442 F.3d 770 (2d Cir.2006), and urges that we follow its lead and disregard the existence of the waiver. He contends he is entitled to an evidentiary hearing to determine whether he instructed his trial counsel to file a notice of appeal, and, if so, he must be permitted to pursue a direct appeal. Our Court has not yet considered this argument. Whether, where there are claims of ineffective assistance, Flores-Ortega changes our analysis of the validity of waivers of collateral review remains an open question. There is admittedly some confusion in this area. This is largely due to the fact that, in a case that did not involve a waiver, the Supreme Court has given the right to appeal special significance as it relates to ineffectiveness claims. In Flores-Ortega, the Supreme Court held that “counsel has" }, { "docid": "23069354", "title": "", "text": "applies to a defendant who has waived appeal in a plea agreement.” 442 F.3d at 773. Although the procedural posture of the case was the denial of the defendant’s § 2255 motion, the court never even discussed the fact that the defendant had waived his habeas rights. It did not evaluate the validity of the habeas waiver, but instead skipped immediately to the merits of the argument raised in the § 2255 motion, namely whether trial counsel was ineffective in failing to file a direct appeal. Surprisingly, we think, a majority of other courts of appeals to consider the issue have engaged in similarly flawed reasoning and have reached the same conclusions. Instead of scrutinizing the waiver, these courts have focused on the importance of appeal rights as set forth in Flores-Ortega — a non-waiver case — and in reliance thereon permitted appeals explicitly barred by waiver. Heretofore, only one court of appeals— the Court of Appeals for the Seventh Circuit — has disagreed with this line of cases and expressed its skepticism toward this over-expansion of Flores-Ortega. Nunez v. United States, 495 F.3d 544 (7th Cir.2007), vacated on other grounds, — U.S. -, 128 S.Ct. 2990, — L.Ed.2d - (2008). In that case, faced with a defendant’s assertions that he did not understand the plea and his lawyer failed to follow his direction to file an appeal, the court turned directly to an examination of the waiver of appeal and collateral challenge. Concluding that the plea was knowing and voluntary and the waiver should be enforced, the court held that the “claim of post-sentencing ineffective assistance falls squarely within the waiver.” Id. at 546. The court then went on to note that, in the absence of a waiver, the filing of a notice of appeal is a purely ministerial task that could only help, not harm the defendant. Id. at 547 (citing Flores-Ortega, 528 U.S. at 477, 120 S.Ct. 1029). By contrast, where there is a total appellate and collateral waiver, “counsel’s duty to protect his or her client’s interest militates against filing an appeal” which could cost the" }, { "docid": "22313306", "title": "", "text": "his Ghent’s wishes, prejudice is to be presumed, and Petitioner is entitled to an out-of-time appeal, regardless of whether he can identify any arguably meritorious grounds for appeal that would fit one of the exceptions contained in his appeal waiver. The district court concluded, based on the mere existence of Petitioner’s appeal waiver, that counsel could not have rendered professionally unreasonable performance by his inaction. (R.l-6 at 5.) The court assumed that, in light of the waiver, any appeal filed on behalf of Petitioner would have been futile. (R.l-6 at 5.) The court also agreed with the Government that Petitioner, as part of his § 2255 motion, was required to specify grounds for his appeal that would fit one of the exceptions to his appeal waiver. (R.l-6 at 5 n.5.) Supreme Court precedent suggests that Petitioner had no such duty. Flores-Ortega, 528 U.S. at 486, 120 S.Ct. at 1040. (“We similarly conclude here that it is unfair to require an indigent, perhaps pro se, defendant to demonstrate that his hypothetical appeal might have had merit .... Rather, we require the defendant to demonstrate that, but for counsel’s deficient conduct, he would have appealed.”) (emphasis in original). The reasoning in Flores-Ortega applies with equal force where, as here, the defendant has waived many, but not all, of his appellate rights. The Tenth Circuit has recently considered a case nearly identical to this one and has drawn the same conclusions. United States v. Garrett, 402 F.3d 1262 (10th Cir.2005). In Garrett, the defendant executed a waiver of his rights to appeal or collaterally attack his sentence, except in two limited cases: (1) if the court were to issue an upward departure, or (2) if the Supreme Court or the Tenth Circuit were to decide a case bearing on his sentence and make it apply retroactively. Id. at 1264 n. 2. The record in Garrett appears to have been remarkably similar to that in the case before us, in that it was unclear whether the defendant had clearly asked his attorney to appeal his sentence. Id. at 1266. The court held that, since" }, { "docid": "23069368", "title": "", "text": "our review. He cannot be faulted for failing to raise an issue that is neither a basis for habeas relief nor related to his ineffectiveness claim. The fact that he had waived his right to proceed with collateral review would have been a defense to his habeas claim raised by the government. The government, however, did not file an answer to the petition and had no opportunity to do so. The petition (framed as a motion to vacate) was filed on May 11, 2006, and the District Court filed its Opinion and Order on May 15, 2006. . The issue of the validity of a waiver in a collateral challenge comes to the District Court in the first instance upon the filing of the habeas petition, whereas the issue in an appellate waiver comes for resolution in the first instance to the appeals court. The inquiry is the same, although at different court levels. We review the former, and decide the latter in the first instance. . If Mabry were asserting that he was misled in some way, we might remand for a hearing and permit the District Court to consider the issue in the first instance. That is not the case here, and the record is sufficiently developed that we can decide the issue as ably as the District Court. . United States v. Tapp, 491 F.3d 263 (5th Cir.2007); United States v. Sandoval-Lopez, 409 F.3d 1193, 1195-99 (9th Cir.2005); United States v. Garrett, 402 F.3d 1262 (10th Cir. 2005); Gomez-Diaz v. United States, 433 F.3d 788, 791-94 (11th Cir.2005). . Even those courts that have applied Flores-Ortega in the waiver context have noted that presuming prejudice where there is a waiver makes little sense, because \"most successful § 2255 movants in the appeal waiver situation obtain little more than an opportunity to lose at a later date.” United States v. Poindexter, 492 F.3d 263, 273 (4th Cir.2007); accord Campusano, 442 F.3d at 777 (\"Admittedly, applying the Flores-Ortega presumption to post-waiver situations will bestow on most defendants nothing more than an opportunity to lose.”). So doing, they reach results" }, { "docid": "23290936", "title": "", "text": "the government substituted its own ipse dixit for legal analysis: \"counsel did not render ineffective assistance by failing to file a notice of appeal because the Defendant effectively waived his right to appeal.” Aplee. Br. at 8. Counsel’s disregard of the COA issue undermines the proper functioning of the appellate process and we do not condone it. . We note that the per se rules are applicable only when “counsel in fact consulted with the defendant about an appeal.” Flores-Ortega, 528 U.S. at 478, 120 S.Ct. 1029. In this context, the term \" ‘consult’ \" is used “to convey a specific meaning — advising the defendant about the advantages and disadvantages of taking an appeal, and making a reasonable effort to discover the defendant’s wishes.” Id. In the absence of a consultation, the question becomes whether the “failure to consult with the defendant itself constitutes deficient performance.” Id. This subsidiary issue is analyzed under an adaptation of the two-pronged test described in Strickland v. Washington, 466 U.S. 668, 687-89, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Flores-Ortega, 528 U.S. at 479, 120 S.Ct. 1029. . Mr. Garrett's plea agreement also provided for a waiver of his right to collaterally challenge his guilty plea or sentence. The government has not argued that this waiver bars a § 2255 motion based on counsel's failure to file a requested appeal. Further, the plain language of the waiver does not address the type of claim he has raised. United States v. Anderson, 374 F.3d 955, 957 (10th Cir.2004) (stating that \"we will strictly construe appeal waivers and any ambiguities in these agreements will be read against the Government and in favor of a defendant’s appellate rights”). . The district court's ruling was entered after the Supreme Court announced Flores-Ortega, but before this court issued either Snitz or Hahn. For its conclusion, the court cited several unpublished cases from other circuit courts of appeal and district courts, many of which were decided without the guidance of Flores-Ortega. . Our holding is limited to the issue of Mr. Garrett's possible entitlement to a direct appeal based" }, { "docid": "23069344", "title": "", "text": "jurisdiction over this appeal pursuant to 28 U.S.C. § 1291 and § 2255(d). See United States v. Gwinnett, 483 F.3d 200, 203 (3d Cir.2007). We review the validity of a waiver de novo. United States v. Khattak, 273 F.3d 557, 560 (3d Cir.2001). II. Discussion Criminal defendants may waive both constitutional and statutory rights, provided they do so voluntarily and with knowledge of the nature and consequences of the waiver. See Town of Newton v. Rumery, 480 U.S. 386, 393, 107 S.Ct. 1187, 94 L.Ed.2d 405 (1987); Brady v. United States, 397 U.S. 742, 752-53, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970); Adams v. United States, 317 U.S. 269, 63 S.Ct. 236, 87 L.Ed. 268 (1942). The right to appeal in a criminal case is among those rights that may be waived. Jones v. Barnes, 463 U.S. 745, 751, 103 S.Ct. 3308, 77 L.Ed.2d 987 (1983). We have acknowledged the clear precedent validating waivers of basic rights, even in criminal cases. Khattak, 273 F.3d at 561. Noting the benefits of such waivers to the defendant, government and court system, we have refused to find waivers of appeal rights violative of public policy. Id. at 562. Accordingly, we have been willing to enforce such waivers, provided that they are entered into knowingly and voluntarily and their enforcement does not work a miscarriage of justice. Id. In the instant case, for the first time, Mabry argues, through his new counsel, that his waiver was not knowing and voluntary. More specifically, he contends that the change-of-plea colloquy was inadequate and rendered the waiver not knowing, because the District Court should have, but did not, define “miscarriage of justice” or explain that the exception is particularly narrow. Furthermore, Mabry urges, based on the Supreme Court’s opinion in Roe v. Flores-Ortega, 528 U.S. 470, 120 S.Ct. 1029, 145 L.Ed.2d 985 (2000), and opinions in the circuit courts applying Flores-Ortega in this situation, we must presume prejudice, rising to the level of a miscarriage of justice, and remand for an evidentiary hearing simply because there are allegations that counsel disregarded Mabry’s instruction to file an appeal." }, { "docid": "23290937", "title": "", "text": "(1984). Flores-Ortega, 528 U.S. at 479, 120 S.Ct. 1029. . Mr. Garrett's plea agreement also provided for a waiver of his right to collaterally challenge his guilty plea or sentence. The government has not argued that this waiver bars a § 2255 motion based on counsel's failure to file a requested appeal. Further, the plain language of the waiver does not address the type of claim he has raised. United States v. Anderson, 374 F.3d 955, 957 (10th Cir.2004) (stating that \"we will strictly construe appeal waivers and any ambiguities in these agreements will be read against the Government and in favor of a defendant’s appellate rights”). . The district court's ruling was entered after the Supreme Court announced Flores-Ortega, but before this court issued either Snitz or Hahn. For its conclusion, the court cited several unpublished cases from other circuit courts of appeal and district courts, many of which were decided without the guidance of Flores-Ortega. . Our holding is limited to the issue of Mr. Garrett's possible entitlement to a direct appeal based on his claim that counsel failed to file a requested appeal. We do not consider any of the remaining issues he asserts in this matter. See Fields v. Gibson, 277 F.3d 1203, 1216 n. 8 (10th Cir.2002)." }, { "docid": "23069345", "title": "", "text": "government and court system, we have refused to find waivers of appeal rights violative of public policy. Id. at 562. Accordingly, we have been willing to enforce such waivers, provided that they are entered into knowingly and voluntarily and their enforcement does not work a miscarriage of justice. Id. In the instant case, for the first time, Mabry argues, through his new counsel, that his waiver was not knowing and voluntary. More specifically, he contends that the change-of-plea colloquy was inadequate and rendered the waiver not knowing, because the District Court should have, but did not, define “miscarriage of justice” or explain that the exception is particularly narrow. Furthermore, Mabry urges, based on the Supreme Court’s opinion in Roe v. Flores-Ortega, 528 U.S. 470, 120 S.Ct. 1029, 145 L.Ed.2d 985 (2000), and opinions in the circuit courts applying Flores-Ortega in this situation, we must presume prejudice, rising to the level of a miscarriage of justice, and remand for an evidentiary hearing simply because there are allegations that counsel disregarded Mabry’s instruction to file an appeal. In response, the government argues that the waiver was knowing and voluntary and therefore valid. Because the waiver was valid and a defendant may waive his right to accuse counsel of post-sentencing ineffectiveness, the denial of the habeas petition should be affirmed. Accordingly, it says, the enforcement of the waiver does not result in a miscarriage of justice. A. The Knowing and Voluntary Nature of the Waiver The threshold issue before us is whether the waiver of collateral challenge rights in Mabry’s plea agreement was knowing and voluntary. Under Khattak and Gwinnett, where there is a collateral waiver, our task on appeal of a denial of a habeas petition is to determine whether the District Court properly considered the validity of the waiver, specifically examining the (1) knowing and voluntary nature, based on what occurred and what defendant contends, and (2) whether enforcement would work a miscarriage of justice. Whereas a defendant bears the burden of presenting an argument that would render his waiver unknowing or involuntary, a court has an affirmative duty both to" }, { "docid": "15711290", "title": "", "text": "a COA on his claims. We did so based on the holdings in Roe v. Flores-Ortega, 528 U.S. 470, 120 S.Ct. 1029, 145 L.Ed.2d 985 (2000), United States v. Snitz, 342 F.3d 1154 (10th Cir. 2003), and United States v. Garrett, 402 F.3d 1262 (10th Cir.2005). In Flores-Ortega, the Court applied the established rule that “a lawyer who disregards specific instructions from the defendant to file a notice of appeal acts in a manner that is professionally unreasonable.” 528 U.S. at 477, 120 S.Ct. 1029. It held that a defendant who requests that counsel file an appeal is entitled to a new appeal and is not required to show that the appeal would likely succeed. Id. at 484, 486, 120 S.Ct. 1029. Following Flores-Ortega, this court held in Snitz that a defendant is entitled to an appeal if he told his counsel that he wanted to appeal, even if counsel argued that the appeal was without merit. 342 F.3d at 1155-59. In Garrett, this court applied Flores-Ortega and Snitz to a case in which the district court dismissed a § 2255 motion asserting ineffective assistance of counsel for failure to file an appeal, on the ground that the defendant had waived his right to appeal or collaterally attack his sentence in his plea agreement. Garrett, 402 F.3d at 1265-66. This court recognized that the defendant’s “appellate rights have been significantly limited by his waiver, but [that] the waiver does not foreclose all appellate review of his [conviction and] sentence.” Id. at 1266-67. We held that if the defendant “actually asked counsel to perfect an appeal, and counsel ignored the request, he will be entitled to a delayed appeal.” Id. at 1267. This is true “regardless of whether, from the limited perspective of collateral review, it appears that the appeal will not have any merit.” Id. (citations omitted). The government concedes that this legal authority requires remand for an eviden-tiary hearing when a defendant claims in a sworn § 2255 motion that he directed counsel to file a notice of appeal and counsel failed to do so. It argues that this" }, { "docid": "23290933", "title": "", "text": "have held that a defense attorney does not render ineffective assistance by failing to file a notice of appeal where the defendant has effectively waived his right to appeal.” R., Doc. 835, at 4 & n.4. This proposition cannot be reconciled with the Supreme Court’s holding in Flores-Ortega and this court’s statements in Snitz, In fact, whether or not Mr. Garrett instructed his attorney to file a notice of appeal is the crux of his § 2255 case. Mr. Garrett’s appellate rights have been significantly limited by his waiver, but the waiver does not foreclose all appel late review of his sentence. See Hahn, 359 F.3d at 1318. If Mr. Garrett actually-asked counsel to perfect an appeal, and counsel ignored the request, he will be entitled to a delayed appeal. See Snitz, 342 F.3d at 1157. This is true regardless of whether, from the limited perspective of collateral review, it appears that the appeal will not have any merit. Flores-Ortega, 528 U.S. at 477, 484-85, 120 S.Ct. 1029; Snitz, 342 F.3d at 1155-56. Any resulting criminal appeal will initially be evaluated under the summary procedure and analysis described in Hahn, 359 F.3d at 1328. We vacate the district court’s order and remand this case for a hearing to determine whether Mr. Garrett requested counsel to file a notice of appeal. Mr. Garrett’s motion for leave to proceed in forma pauperis is GRANTED, as is the government’s motion to supplement the record on appeal. . After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed. R.App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument. . The pertinent provision of the plea agreement states: [Mr. Garrett], in exchange for the promises and concessions made by the United States in this plea agreement, knowingly and voluntarily waives his right to appeal or collaterally challenge: a. Defendant’s guilty plea and any other aspects of his conviction.... b. Defendant's sentence as imposed by the Court and the manner in which the sentence" }, { "docid": "23101057", "title": "", "text": "When an attorney fails to file a NOA when requested to do so, then, the defendant need not demonstrate that he would have been able to raise meritorious issues on appeal. Id. at 477-78, 120 S.Ct. 1029. The Court indicated that it would be unfair to require a litigant to argue in a § 2255 proceeding that his appeal would have had merit. Id. at 486, 120 S.Ct. 1029. Instead, the defendant must only demonstrate that there is a reasonable probability that, but for counsel’s failure, he would have timely appealed. Id. at 484, 486, 120 S.Ct. 1029. The Government contends that Flores-Ortega does not apply in the instant case because the defendant in Flores-Ortega did not waive his right to appeal or to seek collateral relief. Although we have not resolved this issue in a published opinion, we have in several unpublished decisions applied the rationale set forth in Flores-Ortega in cases where there is an appeal waiver. See United States v. McMillen, 96 Fed.Appx. 219, 220 (5th Cir.2004) (unpublished); United States v. Albarran-Moreno, 70 Fed.Appx. 215, 215-16 (5th Cir.2003) (unpublished); United States v. Johnson, 244 F.3d 134, 2000 WL 1901456, *1-3 (5th Cir.2000) (unpublished). Moreover, at least three circuits have held that Flores-Ortega applies in cases involving appeal waivers that also included a waiver of collateral review. In Campusano v. United States, 442 F.3d 770, 771-72 (2d Cir.2006), the plea agreement contained a conditional waiver of appeal and collateral relief. The district court denied Campusano’s § 2255 motion, holding, inter alia, that unless Campusano requested counsel to appeal a permitted ground for appeal under the waiver, the Flores-Ortega rule that failure to file a requested appeal constitutes prejudice could not apply. See id. at 772-73. The Second Circuit determined that the district court erred, and remanded the case for an evi-dentiary hearing to determine whether Campusano directed his counsel to appeal. Id. at 777. Although applying the Flores-Ortega presumption to waiver cases would “bestow on most defendants nothing more than an opportunity to lose,” the Second Circuit could not “cut corners when Sixth Amendment rights are at stake.”" }, { "docid": "16453578", "title": "", "text": "of Appellate Procedure 4(a)(b)(4), the request for enlargement of time had come too late. We dismissed the appeal for lack of jurisdiction. United States v. Dowell, No. 08-3920 (Order Jan. 27, 2009) (unpublished). On May 5, 2009, Dowell filed a pro se motion for post-conviction relief pursuant to 28 U.S.C. § 2255, asserting in it that his defense counsel failed to file a timely notice of appeal after Dowell had requested that he do so. He also submitted a sworn statement stating that he instructed his trial attorney to appeal the career offender finding and that counsel failed to do so. The district court agreed with the government that the waiver provisions in the plea agreement precluded any relief. Dowell, now represented by appointed counsel, appeals. II. ANALYSIS The Sixth Amendment to the United States Constitution guarantees criminal defendants the assistance of counsel. The Supreme Court has stated that “a lawyer who disregards specific instructions from the defendant to file a notice of appeal acts in a manner that is professionally unreasonable.” Roe v. Flores-Ortega, 528 U.S. 470, 476-77, 120 S.Ct. 1029, 145 L.Ed.2d 985 (2000). And “[w]hen counsel fails to file a requested appeal, a defendant is entitled to ... an appeal without showing that his appeal would likely have merit.” Peguero v. United States, 526 U.S. 23, 28, 119 S.Ct. 961, 143 L.Ed.2d 18 (1999). In other words, “[w]hen a defendant asks his attorney to pursue a direct appeal and the attorney does not do so, it is per se ineffective assistance of counsel.” Gant v. United States, 627 F.3d 677, 681 (7th Cir. 2010). Dowell maintains that he received constitutionally ineffective assistance of counsel because his counsel did not follow his directive to file a notice of appeal of an issue specifically reserved for appeal in the plea agreement. The government, however, maintains that Dowell’s agreement in his plea not to contest his sentence in a collateral attack precludes any relief here. It argues that the plea agreement only reserved the right to appeal the career offender determination in a direct appeal. Because the § 2255 proceeding" }, { "docid": "23069369", "title": "", "text": "in some way, we might remand for a hearing and permit the District Court to consider the issue in the first instance. That is not the case here, and the record is sufficiently developed that we can decide the issue as ably as the District Court. . United States v. Tapp, 491 F.3d 263 (5th Cir.2007); United States v. Sandoval-Lopez, 409 F.3d 1193, 1195-99 (9th Cir.2005); United States v. Garrett, 402 F.3d 1262 (10th Cir. 2005); Gomez-Diaz v. United States, 433 F.3d 788, 791-94 (11th Cir.2005). . Even those courts that have applied Flores-Ortega in the waiver context have noted that presuming prejudice where there is a waiver makes little sense, because \"most successful § 2255 movants in the appeal waiver situation obtain little more than an opportunity to lose at a later date.” United States v. Poindexter, 492 F.3d 263, 273 (4th Cir.2007); accord Campusano, 442 F.3d at 777 (\"Admittedly, applying the Flores-Ortega presumption to post-waiver situations will bestow on most defendants nothing more than an opportunity to lose.”). So doing, they reach results that are admittedly \"contrary to common sense.” See Sandoval-Lopez, 409F.3d at 1196. .Including the position that there really is no circuit split on the issue before us due to the failure of the courts of appeals to specifically address the issue of the effectiveness of the waiver. Brief of the United States on Petition for a Writ of Certiorari, Nunez v. United States, 128 S.Ct. 2990, 76 U.S.L.W. 3666 (2008) (No. 07-818), 2008 WL 2050805, at *12 We, however, view the caselaw as creating a split by disregarding the existence of the waiver. . Properly read, it did not bar the appeal Nunez wished to pursue that complained of the lack of voluntariness of his plea agreement. . The two-sentence order includes a vigorous three-judge dissent chastising the Court for, inter alia, vacating a judgment without deciding whether it was right or wrong. . We note that while Mabry urges that the waiver is invalid based on the concept of presumed prejudice, the Campusano line of cases does not. Instead, they totally ignore the existence" }, { "docid": "23290927", "title": "", "text": "when his client had expressly waived his appellate rights.” Id., doc. 835, at 5. The court therefore denied Mr. Garrett’s motion and request for a certificate of appealability (COA). On Mr. Garrett’s renewed request in this court, we granted COA on the issue of “[w]hether counsel for defendant was ineffective for failing to file a Notice of Appeal where defendant had knowingly and willingly waived his right to appeal in a plea agreement.” 10th Cir. Order filed Feb. 27, 2004. In resolving this query, we review the district court’s legal rulings de novo and its findings of fact for clear error. United States v. Cockerham, 237 F.3d 1179, 1181 (10th Cir.2001). II. Legal Discussion The COA question incorporates two themes previously addressed by the Supreme Court and this court. The first theme concerns the duty of counsel to perfect an appeal of a criminal conviction. See Roe v. Flores-Ortega, 528 U.S. 470, 120 S.Ct. 1029, 145 L.Ed.2d 985 (2000); United States v. Snitz, 342 F.3d 1154 (10th Cir.2003). The second involves the analysis and procedure for appeals brought by defendants who have waived them appellate rights in a plea agreement. See United States v. Hahn, 359 F.3d 1315 (10th Cir.2004) (en banc) (per curiam). Taken together, the holdings of these three cases point the way to the proper resolution of the COA question. 1. Duty of Counsel to File a Notice of Appeal The Supreme Court has provided bright-line rules for evaluating an ineffective-assistance claim based on the performance of an attorney who has consulted with a criminal defendant about an appeal. Roe v. Flores-Ortega, 528 U.S. at 477-78, 120 S.Ct. 1029. A defendant who explicitly instructs his attorney “not to file an appeal cannot later complain that, by following his instructions, his counsel performed deficiently.” Id. at 477, 120 S.Ct. 1029. On the other hand, a lawyer who fails to follow a defendant’s express instructions to file a notice of appeal acts in a manner that is professionally unreasonable. Id. at 477-78, 120 S.Ct. 1029. And, if counsel does not “file a requested appeal, a defendant is entitled to" }, { "docid": "23101058", "title": "", "text": "70 Fed.Appx. 215, 215-16 (5th Cir.2003) (unpublished); United States v. Johnson, 244 F.3d 134, 2000 WL 1901456, *1-3 (5th Cir.2000) (unpublished). Moreover, at least three circuits have held that Flores-Ortega applies in cases involving appeal waivers that also included a waiver of collateral review. In Campusano v. United States, 442 F.3d 770, 771-72 (2d Cir.2006), the plea agreement contained a conditional waiver of appeal and collateral relief. The district court denied Campusano’s § 2255 motion, holding, inter alia, that unless Campusano requested counsel to appeal a permitted ground for appeal under the waiver, the Flores-Ortega rule that failure to file a requested appeal constitutes prejudice could not apply. See id. at 772-73. The Second Circuit determined that the district court erred, and remanded the case for an evi-dentiary hearing to determine whether Campusano directed his counsel to appeal. Id. at 777. Although applying the Flores-Ortega presumption to waiver cases would “bestow on most defendants nothing more than an opportunity to lose,” the Second Circuit could not “cut corners when Sixth Amendment rights are at stake.” Id.; see also Gomez-Diaz v. United States, 433 F.3d 788, 791-94 (11th Cir.2005) (holding in case with waiver of direct appeal and collateral review that “[i]f the evidence establishes either that Petitioner’s attorney acted contrary to his client’s wishes, or that he failed to fulfill his duty to attempt to determine his client’s wishes, prejudice is to be presumed, and Petitioner is enti- tied to an out-of-time appeal, regardless of whether he can identify any arguably meritorious grounds for appeal that would fit one of the exceptions contained in his appeal waiver.”); United States v. Garrett, 402 F.3d 1262, 1266-67 & n. 5 (10th Cir.2005) (holding in case with waiver of direct appeal and collateral review that the district court’s rationale that counsel could not have rendered ineffective assistance for failing to file an appeal that was precluded by the appeal waiver was contrary to Flores-Ortega and circuit precedent.). Today, we join our sister circuits in holding that the rule of Flores-Ortega applies even where a defendant has waived his right to direct appeal and" }, { "docid": "23184839", "title": "", "text": "58 F.3d 280 (7th Cir.1995). And that waiver knocks out Nunez’s argument that his lawyer failed to follow his direction to file an appeal. To establish ineffective assistance of counsel, a prisoner must show not only that the lawyer’s work as a whole was objectively deficient but also that prejudice ensued. See Wright v. Van Patten, — U.S.-, 128 S.Ct. 743, 169 L.Ed.2d 583 (2008); Bell v. Cone, 535 U.S. 685, 122 S.Ct. 1843, 152 L.Ed.2d 914 (2002); Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). A lawyer who respects his client’s formal waiver of appeal does not render objectively deficient service, and the waiver (coupled with the plea itself) shows that Nunez did not suffer prejudice even if his lawyer should have filed a notice of appeal. Had an appeal been filed, it would have been dismissed in short order. In saying this, we recognize that seven courts of appeals have held that a waiver of appeal does not relieve counsel of the duty to file a notice of appeal on a client’s request. See Campusano v. United States, 442 F.3d 770, 772-77 (2d Cir.2006); United States v. Poindexter, 492 F.3d 263 (4th Cir.2007); United States v. Tapp, 491 F.3d 263 (5th Cir.2007); Watson v. United States, 493 F.3d 960 (8th Cir.2007); United States v. Sandoval-Lopez, 409 F.3d 1193, 1195-99 (9th Cir.2005); United States v. Garrett, 402 F.3d 1262, 1265-67 (10th Cir.2005); Gomez-Diaz v. United States, 433 F.3d 788, 791-94 (11th Cir.2005). But see United States v. Mabry, 536 F.3d 231, 239-42 (3d Cir.2008) (disapproving that conclusion, though ultimately holding, as our initial decision did, that a waiver of collateral review blocked relief whether or not counsel was obliged to file a direct appeal). These decisions (other than Mabry) rely on Roe v. Flores-Ortega, 528 U.S. 470, 120 S.Ct. 1029, 145 L.Ed.2d 985 (2000), which observes that a criminal defendant has a statutory right to appellate review and holds that, when counsel frustrates that right by failing to appeal on his client’s request, counsel’s performance is automatically ineffective. A lawyer who does not show" }, { "docid": "23184840", "title": "", "text": "appeal on a client’s request. See Campusano v. United States, 442 F.3d 770, 772-77 (2d Cir.2006); United States v. Poindexter, 492 F.3d 263 (4th Cir.2007); United States v. Tapp, 491 F.3d 263 (5th Cir.2007); Watson v. United States, 493 F.3d 960 (8th Cir.2007); United States v. Sandoval-Lopez, 409 F.3d 1193, 1195-99 (9th Cir.2005); United States v. Garrett, 402 F.3d 1262, 1265-67 (10th Cir.2005); Gomez-Diaz v. United States, 433 F.3d 788, 791-94 (11th Cir.2005). But see United States v. Mabry, 536 F.3d 231, 239-42 (3d Cir.2008) (disapproving that conclusion, though ultimately holding, as our initial decision did, that a waiver of collateral review blocked relief whether or not counsel was obliged to file a direct appeal). These decisions (other than Mabry) rely on Roe v. Flores-Ortega, 528 U.S. 470, 120 S.Ct. 1029, 145 L.Ed.2d 985 (2000), which observes that a criminal defendant has a statutory right to appellate review and holds that, when counsel frustrates that right by failing to appeal on his client’s request, counsel’s performance is automatically ineffective. A lawyer who does not show up for trial might as well be a moose, and giving the defendant a moose does not satisfy the sixth amendment. See United States v. Cronic, 466 U.S. 648, 104 S.Ct. 2039, 80 L.Ed.2d 657 (1984). The same understanding applies when the lawyer does not show up for appeal, these courts hold, despite a defendant’s voluntary waiver of the opportunity to appeal. There may well be practical benefits to the other circuits’ extension of Roe, because waivers of appeal are not airtight. As we held in Wenger, a waiver stands or falls with the plea bargain of which it is a part. See also United States v. Sura, 511 F.3d 654 (7th Cir.2007) (violation of Rule ll(b)(l)(N) can vitiate a guilty plea that includes a waiver of appeal). A defendant who wants a lawyer to argue on appeal that the plea was involuntary has a right to legal assistance. Moreover, waivers of appeal have different scopes. Some — for example, the waiver in Poindexter — concern only the sentence; an appeal that calls the conviction" }, { "docid": "23101056", "title": "", "text": "his counsel was ineffective in failing to timely file an NOA. The district court concluded that this argument was unavailing due to Tapp’s informed, voluntary waiver of his right to appeal his sentence. Accordingly, the district court denied Tapp’s § 2255 petition. The district court’s ruling was made without an evidentiary hearing. Tapp timely appealed the district court’s denial of his § 2255 petition. We only granted Tapp a certificate of appeala- bility on the question of whether Tapp’s counsel rendered ineffective assistance when he failed to timely file Tapp’s NOA. We review a district court’s denial of a § 2255 motion made without the benefit of an evidentiary hearing for an abuse of discretion. United States v. Cervantes, 132 F.3d 1106, 1110 (5th Cir.1998). In Roe v. Flores-Ortega, 528 U.S. 470, 120 S.Ct. 1029, 145 L.Ed.2d 985 (2000), the Supreme Court held that the failure to file a requested NOA is per se ineffective assistance of counsel, with or without a showing that the appeal would have merit. Id. at 483-86, 120 S.Ct. 1029. When an attorney fails to file a NOA when requested to do so, then, the defendant need not demonstrate that he would have been able to raise meritorious issues on appeal. Id. at 477-78, 120 S.Ct. 1029. The Court indicated that it would be unfair to require a litigant to argue in a § 2255 proceeding that his appeal would have had merit. Id. at 486, 120 S.Ct. 1029. Instead, the defendant must only demonstrate that there is a reasonable probability that, but for counsel’s failure, he would have timely appealed. Id. at 484, 486, 120 S.Ct. 1029. The Government contends that Flores-Ortega does not apply in the instant case because the defendant in Flores-Ortega did not waive his right to appeal or to seek collateral relief. Although we have not resolved this issue in a published opinion, we have in several unpublished decisions applied the rationale set forth in Flores-Ortega in cases where there is an appeal waiver. See United States v. McMillen, 96 Fed.Appx. 219, 220 (5th Cir.2004) (unpublished); United States v. Albarran-Moreno," }, { "docid": "15711289", "title": "", "text": "Guerrero waived his right to collaterally attack his conviction and sentence. However, the court did reach the merits of the claim for ineffective assistance of counsel for failing to file an appeal. It rejected the claim, stating that: [Guerrero] does not provide any details regarding the issues he asked counsel to appeal. This is problematic for [his] claim as the manner to determine ineffective assistance of counsel for failing to raise an issue on appeal is to examine the merits of the omitted issue. If the omitted issue is meritless, counsel’s failure to appeal is not a constitutional violation. Because he has not stated what issues his counsel failed to appeal, the Court is unable to determine the merits. [Guerrero’s] claim fails because he has not provided facts to overcome the strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance. In addition to dismissing his § 2255 motion, the district court also denied Guerrero’s request for a certificate of appealability (“COA”). On Guerrero’s renewed request to this court, we granted a COA on his claims. We did so based on the holdings in Roe v. Flores-Ortega, 528 U.S. 470, 120 S.Ct. 1029, 145 L.Ed.2d 985 (2000), United States v. Snitz, 342 F.3d 1154 (10th Cir. 2003), and United States v. Garrett, 402 F.3d 1262 (10th Cir.2005). In Flores-Ortega, the Court applied the established rule that “a lawyer who disregards specific instructions from the defendant to file a notice of appeal acts in a manner that is professionally unreasonable.” 528 U.S. at 477, 120 S.Ct. 1029. It held that a defendant who requests that counsel file an appeal is entitled to a new appeal and is not required to show that the appeal would likely succeed. Id. at 484, 486, 120 S.Ct. 1029. Following Flores-Ortega, this court held in Snitz that a defendant is entitled to an appeal if he told his counsel that he wanted to appeal, even if counsel argued that the appeal was without merit. 342 F.3d at 1155-59. In Garrett, this court applied Flores-Ortega and Snitz to a case in which the" }, { "docid": "15711291", "title": "", "text": "district court dismissed a § 2255 motion asserting ineffective assistance of counsel for failure to file an appeal, on the ground that the defendant had waived his right to appeal or collaterally attack his sentence in his plea agreement. Garrett, 402 F.3d at 1265-66. This court recognized that the defendant’s “appellate rights have been significantly limited by his waiver, but [that] the waiver does not foreclose all appellate review of his [conviction and] sentence.” Id. at 1266-67. We held that if the defendant “actually asked counsel to perfect an appeal, and counsel ignored the request, he will be entitled to a delayed appeal.” Id. at 1267. This is true “regardless of whether, from the limited perspective of collateral review, it appears that the appeal will not have any merit.” Id. (citations omitted). The government concedes that this legal authority requires remand for an eviden-tiary hearing when a defendant claims in a sworn § 2255 motion that he directed counsel to file a notice of appeal and counsel failed to do so. It argues that this court should affirm the district court’s dismissal of the § 2255 motion because Guerrero did not raise this ineffective-assistance claim in his motion. Instead, he raised the issue only in the unsworn memorandum, filed in support of the motion. See United States v. LaBonte, 70 F.3d 1396, 1413 (1st Cir.1995) (holding that § 2255 relief cannot be predicated on an unsworn memorandum), rev’d on other grounds, 520 U.S. 751, 117 S.Ct. 1673, 137 L.Ed.2d 1001 (1997). Rules 2(b)(1), (2), and (5) of the Rules Governing § 2255 Proceedings for the U.S. District Courts (“ § 2255 Rules”) require that a § 2255 motion “specify all the grounds for relief,” “state the facts supporting each ground,” and “be signed under penalty of perjury.” We agree with the government that Guerrero’s § 2255 motion, which was signed under penalty of perjury, did not include an ineffective-assistance claim alleging that counsel failed to file a notice of appeal as Guerrero had requested. Instead, he raised that claim only in his unverified memorandum in support of his § 2255" } ]

[ { "docid": "2026207", "title": "", "text": "the settlement along the lines stated above it must proceed in its action for contribution along those same lines. Lastly, Murphy contends that it is entitled under Pennsylvania law to contribution from Local 249 as “a party commonly responsible for a wrong committed.” In the context of suits arising under the Federal Tort Claims Act, 28 U.S.C. § 2674, and the Federal Employers’ Liability Act, 45 U.S.C. §§ 51, et seq., state law has been applied for the purposes of contribution. See, e. g., Kennedy v. Pennsylvania R.R. Co., 282 F.2d 705 (3d Cir. 1960); Howey v. Yellow Cab Co., 181 F.2d 967 (3d Cir. 1950), aff’d sub nom., United States v. Yellow Cab Co., 340 U.S. 543, 71 S.Ct. 399, 95 L.Ed. 523 (1951). The situation presented in the instant case is distinguishable from the Federal Tort Claims Act and the Federal Employers’ eases. In the latter cases contribution is based upon duties and liabilities having their origin in state law. In Richards v. United States, 369 U.S. 1, 82 S.Ct. 585, 7 L.Ed.2d 492 (1962), the Supreme Court stated: “[T]he [Federal Tort Claims Act] was not patterned to operate with complete independence from the principles of law developed in the common law and refined by statute and judicial decision in the various States. Rather, it was designed to build upon legal relationships formulated and characterized by the States, and, to that extent, the statutory scheme is exemplary of the general interstitial character of federal law. . . . ” Id. at 6-7, 82 S.Ct. at 589. Similarly, although the Federal Employers’ Liability Act may be properly viewed as in derogation of common law duties and liabilities between employers and employees duties owed to plaintiffs by third persons are still regulated by the substantive law of the state. See Chicago and North Western Railway Co. v. Minnesota Transfer Railway Co., 371 F.2d 129 (8th Cir. 1967). In the instant case a Federal statute, and not a state law, governs the conduct of the Local 249 to the employees. See 29 U.S.C. § 206(d). As we have stated, we do" } ]

[ { "docid": "771581", "title": "", "text": "was at one time plaintiff’s lawyer and a stockholder in Nicole’s, had entered into a joint venture with the defendant. This joint venture, according to the defendant, led to the creation of Nicole’s. The defendant asserts that if plaintiff’s allegations that defendant owns the Nicole’s stock in trust for the plaintiff are correct, then Klenk is guilty of breach of fiduciary duty to a joint venturer and fraud in that he failed to disclose plaintiff’s beneficial interest in the stock to the defendant and took actions which were inconsistent with the existence of that interest. The defendant asserts that as a result of these actions, Klenk would be bound to indemnify the defendant should the defendant be found liable to the plaintiff in this action. Federal Rule of Civil Procedure 14(a) provides, in part, that “a defending party as a third-party plaintiff, may cause a . .. complaint to be served upon a person not a party to the action who is or may be liable to him for all or part of plaintiff’s claim against him.” A third-party claim may be asserted under this rule only when the third-party defendant is liable for indemnity or contribution. Impleader under Rule 14(a) is procedural and does not of itself create such right of indemnity or contribution. Tesch v. U.S., 546 F.Supp. 526 (E.D.Pa.1982). In a case like the present one, in which jurisdiction rests solely on diversity, I must look to state law to determine whether a right to indemnity exists. See 3 J. Moore, Federal Practice, paragraph 14.03[7] and cases cited therein. Under Pennsylvania law, indemnity is limited to those situations in which the defendant’s liability is secondary or passive. Tesch, 546 F.Supp. at 529. Builders Supply Co. v. McCabe, 366 Pa. 322, 77 A.2d 368 (1951). An examination of the pleadings in this case reveals that if Clayton Cook is liable to Elliot Cook, that liability is not secondary or passive. The Pennsylvania Supreme Court has defined secondary or passive liability as that which rests on imputed or constructive fault. Builders Supply, 366 Pa. at 328, 77 A.2d 368." }, { "docid": "8726325", "title": "", "text": "affirm the district court’s dismissal of the amended third-party complaint on a more fundamental basis. While the district court dismissed the initial third-party claim on the ground it sought the unavailable remedy of contribution and granted leave for Fujika-wa “to assert a [third-party] cause of action under some theory other than contribution,” we find that Fujikawa has failed to do so and the court’s generous leave to amend constituted a non sequitur of sorts. Fed.R.Civ.P. 14 states in pertinent part: At any time after commencement of the action a defending party, as a third-party plaintiff, may cause a summons and complaint to be served upon a person not a party to the action who is or may be liable to the third-party plaintiff for all or part of the plaintiffs claim against the third-party plaintiff Fed.R.Civ.P. 14(a) (emphasis added). Thus, Fujikawa’s third-party complaint is valid only if the other trustees “[are] or may be liable to [Fujikawa] for all or part of [Kim’s] claim against [Fujikawa].” The purpose of this rule is to promote judicial efficiency by eliminating the necessity for the defendant to bring a separate action against a third party who may be derivatively liable to the defendant for all or part of the plaintiff’s original claim. 6 C. Wright & A. Miller, Federal Practice and Procedure § 1442, at 202-03 (1971). Of particular importance is that while Rule 14 provides the procedural mechanism for the assertion of a claim for contribution or indemnity, there must also exist a substantive basis for the third-party defendant’s liability. 3 J. Moore, Moore’s Federal Practice ¶ 14.03[1] and [3] (2d ed. 1987). The substantive basis for Fujikawa’s third-party complaint is a personal claim for contribution or indemnity under ERISA. Accordingly, Fujikawa’s third-party claim necessarily fails since ERISA, the governing substantive law, does not recognize a right of contribution. Thus, the third-party complaint does not contain a legally cognizable third-party claim under Rule 14(a), and the district court’s dismissal of the complaint is affirmed. IV APPEAL NO. 87-2922 A. FACTS AND PROCEEDINGS After judgment was rendered in Civ. No. 85-1188 (Appeal Nos." }, { "docid": "9684287", "title": "", "text": "against stevedore since stevedore would not be sued directly under COG-SA and therefore suit for indemnity against stevedore not barred). The general rule of indemnity provides that a cause of action does not arise until there is a determination of initial liability. If defendant has a claim over against a third-party defendant — such as a claim for indemnity, contribution, etc. — the statute usually will not commence to run against the defendant (third-party plaintiff) and in favor of the third-party defendant until judgment has been entered against the defendant, or the defendant has paid the judgment. Thus a defendant may implead a third party to enforce against him a right of contribution, even though the statute may have run on any claim by plaintiff directly against the third party. 3 Moore’s Federal Practice 114.09 at 14-55 to 56 (2d ed.1982) (footnotes omitted). See United States Lines, Inc. v. United States, 470 F.2d 487 (5th Cir.1972); United States v. Farr & Co., 342 F.2d 383 (2d Cir.1965); States Steamship Co. v. American Smelting & Refining Co., 339 F.2d 66 (9th Cir.1964), cert. denied, 380 U.S. 964, 85 S.Ct. 1109, 14 L.Ed.2d 155 (1965); Chicago, Rock Island & Pacific Railway v. United States, 220 F.2d 939 (7th Cir.1955). See also 18 Couch Cyclopedia of Insurance Law § 75.32 at 725 and nn. 6 and 7 (2d ed. and Supp.1981); 20A Appleman, Insurance Law and Practice § 11689, at 651 and nn. 1-5 (1980). Thus, the statute of limitations would commence to run only after the party seeking indemnity had been found liable for damages. In admiralty claims, the limitation period (not its commencement) is generally determined by the equitable doctrine of laches. See Florida Bahamas Line v. Barge Star, 433 F.2d 1243 (5th Cir.1970). The doctrine of Grace Lines therefore operates substantively to alter standard indemnity law and the general maritime limitations. Those courts either distinguishing or criticizing Grace Lines have advanced several persuasive policy considerations for circumventing Grace Lines. First, Grace Lines runs counter to the standard indemnity law. “Third-party practice is simply a form of expeditious remedy that does" }, { "docid": "23025963", "title": "", "text": "complaint because of the covenant is premature. The railroad and Taylor also moved to dismiss the third party complaint on the ground that no diversity of citizenship existed between them and the .plaintiff, Sheppard. The latter makes no claim against either the railroad or Taylor. They are brought into the litigation as third party defendants by the original defendant in its capacity as third party plaintiff, under Rule 14(a) of the Federal Rules of Civil Procedure. The basis of the third party claim is the assertion by the defendant of its alleged right of contribution against the third party defendants in accordance with the law of Pennsylvania which is controlling in this respect. Erie R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188, 114 A.L.R. 1487. Rule 82 of the Federal Rules does provide that “These rules shall not be construed to extend * * * the jurisdiction of the district courts of the United States.” However, in connection with this fundamental doctrine it is to be remembered that the type of third party suit under consideration is ancillary to the main action and presupposes that the latter has met the jurisdictional diversity requirements. Williams v. Keyes, 5 Cir., 125 F.2d 208, certiorari denied 316 U.S. 699, 62 S.Ct. 1297, 86 L.Ed. 1768, and see cases collected 1 Moore’s Federal Practice 1947 Supplement 378. Therefore, at least within the present facts where the plaintiff seeks no recovery against the third party defendants, we think the inclusion of the third party claim is justified though it does not of itself meet the diversity test. We base this not on any theory of extension of jurisdiction but in order to effectively dispose of the entire related litigation in the suit which is already properly before the court and thus carry out the purpose of Rule 14. 1 Moore’s Federal Practice 782. “Obviously a mere broadening of the content of a single federal action must not be confused with the extension of federal power”. Lesnik v. Public Industrials Corporation, 2 Cir., 144 F.2d 968, 973. The particular point now" }, { "docid": "15824803", "title": "", "text": "insofar as it conditions the right to contribution “when, and only when, one tort-feasor has paid a claim for which they are both liable.” Nationwide Mutual Ins. Co. v. Jewel Tea Co., Inc., supra; Smith v. Whitmore, 270 F.2d 741, 744 (3rd Cir. 1959). In Smith v. Whitmore, at page 745 [270 F.2d 741, 745], the opinion quoted from Linkenhoger v. Owens, 181 F.2d 97, 99 (5th Cir. 1950), the following; “The command of Erie R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188, 114 A.L.R. 1487, is that the ultimate results reached in litigation in the Federal Courts predicated upon causes of action arising from the State law, must be the same as if the litigation had been conducted in the State courts. While the Federal Courts should properly employ its own rules of procedure to secure the just, efficient and prompt determination of all claims inherent in any litigation before it, neveretheless the ultimate results reached must be such as accord with the substantive jurisprudence of the State of the forum.” At page 745 [270 F.2d 741, 745] the opinion continues: In Brown v. Cranston, 2 Cir., 1942, 132 F.2d 631, 633-634, 148 A.L.R. 1178, certiorari denied sub nom. Cranston v. Thompson, 1943, 319 U.S. 741, 63 S.Ct. 1028, 87 L.Ed. 1698, it was held in a contribution action that Rule 14 cannot be construed “* * * as to give the defendant a recovery which could not be obtained through any remedy available in the New York State Courts.” Professor Moore in his discussion of Rule 14 in 3 Moore’s Federal Practice Para. 14.03 points out that the Rule “creates no substantive rights”; and “does not ‘abridge, enlarge, nor modify the substantive rights of any litigant’ ”. He specifically states that “The Rule does not establish a right of reimbursement, indemnity nor contribution. * * * ” The foregoing is in consonance with the statute authorizing the Supreme Court to promulgate the Federal Rules wherein it is stated that “Such rules shall not abridge, enlarge or modify any substantive right. * * *”" }, { "docid": "4881609", "title": "", "text": "him for all or part of the plaintiff’s claim against him.” This has been liberally interpreted to allow third-party claims to be asserted even though they do not allege the same cause of action or the same theory of liability as the original complaint. See e. g., Judd v. General Motors Corp., 65 F.R.D. 612, 614 (M.D.Penn. 1974); 3 Moore’s Federal Practice ¶ 14.07(1) (1979). Therefore it is of no consequence that the original complaint did not allege a defect in the boat. Crookston Marine’s third-party complaint against Lund American alleges that Lund American’s acts were “the sole or contributing cause of the death of plaintiff’s decedent” and is liable for “all or a part of the Plaintiff’s claim against it by right of contribution and/or indemnity.” Lund American asserts that Rule 14 allows a defendant to implead one who is or may be liable to the defendant, and may not substitute the third party as one liable to the plaintiff. It alleges that Crookston Marine is attempting to prove Lund American as being the “sole” cause of the injury and disclaiming its own liability in the matter. Lund American’s assertion of the law is correct, see Murray v. Reliance Insurance Co., 60 F.R.D. 390, 391 (D.Minn.1973), but Crookston Marine, contrary to Lund American’s allegations, has not attempted to substitute Lund American’s liability for its own. It alleges that Lund American is a “sole or a contributing cause” and seeks contribution or indemnity. A third-party claim is proper under Rule 14(a) if the third-party’s liability is in some way dependent on the outcome of the main claim, or the third party is secondarily liable to defendant. United States v. Joe Grasso & Son, Inc., 380 F.2d 749, 751 (5th Cir. 1967); United States Fidelity & Guaranty Co. v. American State Bank, 372 F.2d 449, 450 (10th Cir. 1967). Since contribution is a secondary or derivative liability and is recognized as a basis for bringing a third-party claim, see Wright and Miller, Federal Practice and Procedure § 1446 (1971), Crookston Marine’s claim is a proper one under Rule 14. It is" }, { "docid": "5105048", "title": "", "text": "Top Mountain R. & Coal Co. (Russell et al.), D.C.E.D.Pa., 3 F.R.D. 24; Davis v. Associated Indemnity Corp. (Daniels), D.C.M.D.Pa., 56 F.Supp. 541. Where the basis of liability for the claim for relief of the third-party complaint is not dependent upon federal law, the substantive law of the place where the operative facts took place governs. Brown v. Cranston, 2 Cir., 132 F.2d 631, 633, 634, 148 A.L.R. 1178, certiorari denied 319 U.S. 741, 63 S.Ct. 1028, 87 L.Ed. 1698; Jeub v. B/G Foods, Inc., D.C.Minn., 2 F.R.D. 238. Also see Jones v. Waterman S. S. Corp., supra. Therefore, aside from its rights which it may enforce under the contract, the third-party plaintiff would be able, assuming that the third-party defendant will be shown to have been negligent, to obtain contribution from the latter under the Pennsylvania Law. Trerotola v. Philadelphia, 346 Pa. 222, 29 A.2d 788; Anstine v. Pennsylvania R. Co., 352 Pa. 547, 43 A.2d 109, 160 A.L.R. 981. See Young v. Wilky Carrier Corp. et al., 3 Cir., 150 F.2d 764, 765. By taking advantage of the third-party procedure under Rule 14(a), the defendant does not in effect offer to the plaintiff an additional defendant, thus circumventing the jurisdictional requirements of federal statutes; for if the plaintiff does not recover from the original defendant, he will not recover at all in this action. As to the discretion of the court in third-party actions, Professor Moore states #in his treatise: “Whether a party to an action shall be allowed to implead an additional party rests in the discretion of the court”. 1 Moore’s Federal Practice (1946 Supp.) Sec. 14.02, p. 356. In accord with this view are General Taxicab Ass’n v. O’Shea, 71 App.D.C. 327, 109 F.2d 671; Baltimore & O. R. Co. v. Saunders, 4 Cir., 159 F.2d 481; Tullgren v. Jasper (Maryland Cas. Co.), D.C.Md., 27 F.Supp. 413, 418; Delano v. Ives (Botfield et al.), D.C.E.D.Pa., 40 F.Supp. 672. A dissenting voice is raised in Falcone v. City of New York (Williams-Bauer, Corp.) E.D.N.Y., 2 F.R.D. 87, at page 90, which states: “Rule 14 does not" }, { "docid": "17253420", "title": "", "text": "complaint to show the existence. of a disputed issue of material fact. Adickes v. S.H. Kress & Co., 398 U.S. 144, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970). Applied to the undisputed facts and legal principles set forth below, these standards require granting Ballard’s motion. Federal Rule of Civil Procedure 14(a) provides, in part, that “a defending party, as a third-party plaintiff, may cause a . . . complaint to be served upon a person not a party to the action who is or may be liable to him for all or part of plaintiff’s claim against him.” Fed. R. Civ. P. 14(a). A third party plaintiff’s claim may be asserted under this rule only when the third-party defendant’s liability is derivative or secondary. A third party defendant can not be joined simply because that party may be solely liable to the plaintiff. See Johnson & Johnson v. Leonard Kunkin, No. 81-0126, slip op. at 1 (E.D. Pa. January 11, 1982); Klotz v. Superior Electric Products Corp., 498 F.Supp. 1099 (E.D. Pa. 1980); 6 C. Wright & A. Miller, Federal Practice and Procedure § 1446 at 246 (1964). In this case, the basis of the United States’ (third-party plaintiff’s) claim is either indemnity or contribution between joint tortfeasors. Impleader under Fed. R. Civ. P. 14(a) is procedural in nature and does not in itself create a right of indemnity or contribution. That right must be recognized by the applicable substantive law. See 3 J. Moore, Federal Practice ¶ 14.03[1] and cases cited therein. When the United States, as defendant in an action brought pursuant to the Federal Tort Claims Act seeks contribution or indemnity from a private person, courts have held that the law of the state where the tort occurred, in this case Pennsylvania, determines the right of contribution or indemnity. See United States v. Arizona, 214 F.2d 389, 391 n. 1 (9th Cir. 1954); Lee v. Brooks, 315 F.Supp. 729, 732 n. 14 (D. Haw. 1970); Yost v. United States, 212 F.Supp. 410, 412-13 (N.D. Cal. 1963). See generally 3 J. Moore, Federal Practice ¶ 14.29. Under Pennsylvania" }, { "docid": "771582", "title": "", "text": "against him.” A third-party claim may be asserted under this rule only when the third-party defendant is liable for indemnity or contribution. Impleader under Rule 14(a) is procedural and does not of itself create such right of indemnity or contribution. Tesch v. U.S., 546 F.Supp. 526 (E.D.Pa.1982). In a case like the present one, in which jurisdiction rests solely on diversity, I must look to state law to determine whether a right to indemnity exists. See 3 J. Moore, Federal Practice, paragraph 14.03[7] and cases cited therein. Under Pennsylvania law, indemnity is limited to those situations in which the defendant’s liability is secondary or passive. Tesch, 546 F.Supp. at 529. Builders Supply Co. v. McCabe, 366 Pa. 322, 77 A.2d 368 (1951). An examination of the pleadings in this case reveals that if Clayton Cook is liable to Elliot Cook, that liability is not secondary or passive. The Pennsylvania Supreme Court has defined secondary or passive liability as that which rests on imputed or constructive fault. Builders Supply, 366 Pa. at 328, 77 A.2d 368. The plaintiff’s complaint, on the other hand, alleges intentional misconduct on the part of the defendant. Because the defendant is primarily liable to the plaintiff, if he is liable at all, the defendant can have no right to indemnity under Pennsylvania law. Because the defendant would not be entitled to indemnity from the third-party defendant, the third-party complaint does not comply with the requirements of F.R.C.P. 14(a) and it will be dismissed. . Klenk has, in a sworn statement filed with the court, supported plaintiffs allegations that defendant holds the stock in trust for the plaintiff." }, { "docid": "2608105", "title": "", "text": "Instead, defendant accepted on good faith the company’s assurances that the payments were being met. On August 7, 1973, plaintiff brought suit against defendant UAW, contending that by failing to monitor contributions to the pension fund defendant breached its duty of fair representation owed to the Local members. The class was certified by order of the Hon. Noel P. Fox, then Chief Judge of this court, in September of 1973. In 1976, Hansen was added as a third-party defendant pursuant to a stipulation between plaintiffs and defendant, and plaintiffs moved to amend their complaint to add Hansen as a party-defendant. Thereafter, Hansen moved to vacate the order adding it as a third-party defendant, and filed briefs in opposition to plaintiffs’ motion to add it as a defendant. Following transfer of this case to me in 1979, oral argument was held on these motions, and on January 30, 1980, Hansen’s motion to vacate the order adding it as a third-party defendant, was granted. See, Brown v. UAW, 85 F.R.D. 328 (W.D.Mich.1980). It was determined that the court lacked jurisdiction over the third-party complaint because Hansen, by law, could not be held liable to defendant on a theory of indemnity or contribution. Moreover, plaintiffs’ motion to add Hansen as a defendant was denied as untimely. In July, 1980, defendant moved to dismiss and/or for summary judgment. The following month, plaintiffs moved to amend their complaint to add pendent state claims of breach of fiduciary duty, and breach of duties owed to plaintiffs as third-party beneficiaries of the Lakey-UAW Pension Agreement. On September 19, 1980, defendant’s motion to dismiss was denied, and plaintiffs’ motion to amend their complaint was granted. The trial on this case commenced on October 6, 1980, and ran eight days. DUTY OF FAIR REPRESENTATION I. Jurisdiction A. Statutory. Plaintiffs’ primary claim arises under Section 9(a) of the National Labor Relations Act, 29 U.S.C. § 159, under which labor organizations, because of their statutory right to exclusively represent employees for purposes of collective bargaining, have a duty to fairly represent those employees. See, Ford Motor Co. v. Huffman, 345 U.S." }, { "docid": "11143401", "title": "", "text": "462, are not authority to the contrary. That case was based upon the Pennsylvania law, which permits contribution in such a situation. Fisher v. Diehl, 156 Pa. Super. 476, 40 A.2d 912. The government has cited no case in which contribution was allowed in a Federal Tort Claims Act case where it would not have been allowed under the local law. As in diversity cases involving similar questions, we must “apply the substantive law of the state and the procedural law of the federal courts”. Gray v. Hartford Accident & Indemnity Co., D.C.W.D.La., 31 F.Supp. 299, 306. The State law “will determine whether the ultimate facts give rise to any cause of action in favor of the defendant * * That is a matter of substantive law. But, the issues being made in this court, its rules of procedure will govern in the matter of the allowability of a counterclaim. The right to present the counterclaim, as distinguished from its ultimate merit, is a matter of procedure”. Sinkbeil v. Handler, D.C.D.Neb., 7 F.R.D. 92, 96. If the statements in Moore, op. cit., Vol. 3, p. 426, go further than this, they are not in accord with United States v. Yellow Cab Co., supra, and other late cases. As Moore himself notes, Vol. 3, p. 426, there must be some showing that under the applicable law the third party may be liable to the defendant. Mills v. Board of Education of Anne Arundel County, D.C.D.Md., 30 F.Supp. 245. The counterclaim was properly filed, but should be dismissed if the relief requested is not authorized by Maryland substantive law. In Maryland there is no common law right of contribution among joint tort feasors. Baltimore & O. R. Co. v. Howard County, 113 Md. 404, 414, 77 A. 930; Baltimore Transit Co. v. State, to Use of Schriefer, 183 Md. 674, 679, 39 A.2d 858, 860, 156 A.L.R. 460. The Joint Tort Feasors’ Act, Annotated Code of Maryland, 1951 Ed., Art. 50, §§ 20 to 29, applies only when there is a common liability to the plaintiff. In the Schriefer case, supra, Judge" }, { "docid": "906229", "title": "", "text": "state policy based on the federal procedural policy of efficiency in litigation. Federal courts have generally allowed third party complaints against insurers in actions brought under federal question jurisdiction. Colton v. Swain, 358 F.Supp. 859, 862-63 (N.D.Ill.1973). (citations omitted.) The first basis, that the principal action was founded on federal question jurisdiction, is inappropriate. Although jurisdiction in third-party actions under Rule 14 is ordinarily considered ancillary to the principal action, policies which mandate the application of state law in a diversity case (see Erie R. R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938), and its progeny), apply with equal validity to the impleader of an insurance company under Rule 14. Here, the controversy between the third-party defendant-deputies and the insurance company is one which arises in contract. An insured should not be able to avoid the state law limiting his contractual rights by impleading an insurance company merely because a suit against him is fortuitously based on federal question jurisdiction rather than on diversity of citizenship. Cf. Kennedy v. Pennsylvania R. R. Co., 282 F.2d 705, 709 (3d Cir. 1960). As expressed by the Second Circuit in connection with a choice of law question in a case involving trademark infringement: [i]t is the source of the right sued upon, and not the ground on which federal jurisdiction is founded, which determines the governing law. Maternally Yours, Inc. v. Your Maternity Shop, 234 F.2d 538, 540 n. 1 (2d Cir. 1956). See also Sargent v. Genesco, Inc., 337 F.Supp. 1244 (M.D.Fld.1972), 3 J. Moore, Federal Practice, Yol. 1A § 305[3] (2d ed. 1974). The source of the contractual right to indemnity invoked in the third-party complaint here is the law of Illinois, the state in which the contract was formed, the insured reside, and the incident which gave rise to the action took place. Hartliep Transit Co. v. Central Mut. Ins. Co. of Chicago, 288 Ill.App. 140, 5 N.E.2d 879 (1936); Gray v. Pennsylvania Mut. Life Ins. Co. of Philadelphia, 5 Ill.App.2d 541, 126 N.E.2d 409 (1955). The district judge also noted that third-party complaints" }, { "docid": "10906030", "title": "", "text": "that such a deficit existed, plaintiffs knew or should have known that Hansen had failed to meet its fiduciary duty. They were aware then that Lakey had not been making the required payments into the pension fund but that Hansen had not informed them of that fact. The discovery of the source of the funds used to pay Hansen is irrelevant to the fiduciary duty issue. The existence of a fiduciary duty depends on the nature of the relationship between the parties. Assuming ar-guendo that Hansen owed fiduciary duty to plaintiffs, that duty arose as a result of Hansen’s responsibilities with respect to the pension agreement, not because Hansen was paid from pension funds. Indeed, both the UAW and plaintiffs have stated that because of Hansen’s skills and expertise in the area of pension plan funding and its knowledge of the plan’s financial status, they justifiably placed trust and confidence in Hansen and relied on Hansen to keep them informed as to the plan’s financial status. Plaintiffs’ claims, and by reference the UAW’s claims, against Hansen are barred by the operation of the Michigan statutes of limitation. In light of the foregoing, the following actions are hereby taken: 1) the court vacates the Order of November 4, 1977, and strikes the defendant UAW’s cross-complaint against A. S. Hansen, and 2) the court denies plaintiff’s motions for leave to file a third amended complaint with respect to A. S. Hansen and to add A. S. Hansen as a party defendant. IT IS SO ORDERED. . The general rule is that a third-party defendant’s liability to the defendant, if predicated on a contribution or indemnity theory, must be determined under applicable state law, even though jurisdiction in the main case is based on a federal statute as it is here. 3 Moore’s Federal Practice ¶| 14,03[3] n. 6. See Kennedy v. Pennsylvania R. R. Co., 282 F.2d 705, 709 (3d Cir. 1960). A significant exception to that rule has developed in cases brought under the federal securities laws. In Globus, Inc. v. Law Research Service, Inc., 287 F.Supp. 188 (S.D.N.Y.1968), aff'd, 418" }, { "docid": "10906031", "title": "", "text": "Hansen are barred by the operation of the Michigan statutes of limitation. In light of the foregoing, the following actions are hereby taken: 1) the court vacates the Order of November 4, 1977, and strikes the defendant UAW’s cross-complaint against A. S. Hansen, and 2) the court denies plaintiff’s motions for leave to file a third amended complaint with respect to A. S. Hansen and to add A. S. Hansen as a party defendant. IT IS SO ORDERED. . The general rule is that a third-party defendant’s liability to the defendant, if predicated on a contribution or indemnity theory, must be determined under applicable state law, even though jurisdiction in the main case is based on a federal statute as it is here. 3 Moore’s Federal Practice ¶| 14,03[3] n. 6. See Kennedy v. Pennsylvania R. R. Co., 282 F.2d 705, 709 (3d Cir. 1960). A significant exception to that rule has developed in cases brought under the federal securities laws. In Globus, Inc. v. Law Research Service, Inc., 287 F.Supp. 188 (S.D.N.Y.1968), aff'd, 418 F.2d 1276 (2d Cir. 1969), it was held that the issue of indemnity in securities cases is one to be determined under federal law, and that the public policy behind the Securities Act of 1933 and the Securities Exchange Act of 1934 dictated that indemnity is unavailable. In another phase of the same case, reported at 318 F.Supp. 955 (S.D.N.Y.1970), aff'd on opinion below, 442 F.2d 1346 (2d Cir. 1971), and in the earlier case of deHaas v. Empire Petroleum Co., 286 F.Supp. 809 (D.Colo.1968), aff'd in part and vacated in part on other grounds, 435 F.2d 1223 (10th Cir. 1970), it was held that the subject of contribution under the securities acts is governed by federal law, and that contribution is available. It is now generally recognized that federal law controls under these types of cases. See, e. g., Wassel v. Eglowsky, 399 F.Supp. 1330 (D.Md.1975), aff'd, 542 F.2d 1235 (4th Cir. 1976); B & B Investment Club v. Kleinert’s, Inc., 391 F.Supp. 720 (E.D.Pa.1975); Gould v. American-Hawaiian Steamship Co., 387 F.Supp. 163 (D.Del.1974)." }, { "docid": "709540", "title": "", "text": "applicable statute of limitations. Although there is no independent basis for federal jurisdiction over the third-party claim by New York citizen Tri-Ex against New York citizens London and Lime, such a claim is ancillary to the main counterclaim and consequently no independent jurisdictional ground is required. See id., 1114.26 at 14-108 (citing cases). Therefore, the sole remaining issue on this motion is London’s contention that the third-party complaint is barred by the statute of limitations. While London argues that Tri-Ex has asserted a cause of action for fraud against him, he has unfortunately misconstrued the nature of the third-party claim. Despite the imprecision of its third-party pleading, Tri-Ex has fairly asserted a claim for contribution based upon a theory of fraud. A claim for contribution is not time-barred unless the underlying claim is. The distinguishing characteristic of a third-party claim is that the third-party plaintiff is attempting to transfer to the third-party defendant liability that may be imposed upon him in the main action. C. Wright and A. Miller, Federal Prac. & Proc., § 1446 at 257. Impleader is only a procedural device, however, and it does not create any substantive rights. See 6 Moore’s Federal Practice, ¶ 14.03 at 14-18. Thus, one msut have a cognizable substantive claim in order to utilize the third-party procedure provided by Rule 14, F.R.Civ.P. Under § 1401 of the New York CPLR, one who is subject to liability for causing a particular injury may seek contribution against another who may also be liable for causing the same injury. See N.Y.Civ.Prac.L. § 1401 (McKinney 1976). Although the claim for contribution may be brought under Rule 14 at the same time the original claim is being litigated, the statute of limitations applicable to the contribution claim does not begin to run until the third-party plaintiff is compelled to respond in damages for the injury as to which he is claiming contribution. See, e.g., Winn v. Peter Bratti Assoc., Inc., 80 Misc.2d 756, 364 N.Y.S.2d 137, 140 (Sup.Ct.1975); 6 Moore’s Federal Practice, ¶ 14.09 at 14-55. The essential requirement of a claim for contribution under New" }, { "docid": "17253421", "title": "", "text": "Wright & A. Miller, Federal Practice and Procedure § 1446 at 246 (1964). In this case, the basis of the United States’ (third-party plaintiff’s) claim is either indemnity or contribution between joint tortfeasors. Impleader under Fed. R. Civ. P. 14(a) is procedural in nature and does not in itself create a right of indemnity or contribution. That right must be recognized by the applicable substantive law. See 3 J. Moore, Federal Practice ¶ 14.03[1] and cases cited therein. When the United States, as defendant in an action brought pursuant to the Federal Tort Claims Act seeks contribution or indemnity from a private person, courts have held that the law of the state where the tort occurred, in this case Pennsylvania, determines the right of contribution or indemnity. See United States v. Arizona, 214 F.2d 389, 391 n. 1 (9th Cir. 1954); Lee v. Brooks, 315 F.Supp. 729, 732 n. 14 (D. Haw. 1970); Yost v. United States, 212 F.Supp. 410, 412-13 (N.D. Cal. 1963). See generally 3 J. Moore, Federal Practice ¶ 14.29. Under Pennsylvania law, indemnity is limited to situations in which the liability of the defendant is alleged to be secondary or passive. The Pennsylvania Supreme Court in Builders Supply Co. v. McCabe, 366 Pa. 322, 77 A.2d 368 (1951) stated: The right of indemnity rests upon a difference between the primary and the secondary liability of two persons each of whom is made responsible by the law to an injured party. It is a right which enures to a person who, without active fault on his own part, has been compelled, by reason of some legal obligation, to pay damages occasioned by the initial negligence of another, and for which he himself is only secondarily liable. 366 Pa. at 325, 77 A.2d 368. (Emphasis in original). The court then distinguished primary from secondary liability, stating that the latter rests upon imputed or constructive fault. Id. at 328, 77 A.2d 368. Plaintiff’s complaint cannot be construed as alleging passive or secondary negligence by the United States and primary negligence on the part of Ballard. Neither are facts alleged" }, { "docid": "23397999", "title": "", "text": "States, (3) Rule 14(a) did not permit joinder of the Government as a third-party defendant for the reason that whatever' the Government’s liability to Edwards might have been in an independent suit, it had no liability to the third-party plaintiffs. Treating the Government’s motion as one for summary judgment, the district judge dismissed the third-party complaint, ruling that there was no theory upon which indemnity or exoneration could be allowed. It is from this ruling that the instant appeal is taken. Uptagrafft and State Farm urge that: I. The Federal Tort Claims Act carries the Government’s consent to be sued as a third-party defendant for exoneration and/or indemnity. II. The Government is obligated, as an incident of its employment, to save its employees harmless from civil liabilities incurred while acting within the scope of employment. By the Federal Tort Claims Act the United States has consented to suit in tort only “under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred.” 28 U.S. C.A. § 1346(b) et seq. In answer to appellants’ contention for indemnity and/or exoneration, we adopt the view expressed by Judge Hoffman in his memorandum opinion: “There is considerable doubt as to whether Uptagrafft and his insurance carrier may resort to Rule 14 (a), Federal Rules of Civil Procedure, and thereby bring in the United States as a third-party defendant. The right to bring in such third party exists only when the third party ‘is or may be liable to him for all or part of plaintiff’s claim against him.’ It is not enough that the third-party defendant may be liable to the plaintiff. Rule 14 does not establish a right of reimbursement, indemnity or contribution. Moore’s Federal Practice, Vol. 3, § 14.03, p. 409. We look to the state law in such a situation. Smith v. Whitmore, 3 Cir., 270 F.(2d) 741. In the present case Uptagrafft was primarily liable for his tortious conduct; the United States, assuming its possible liability to Edwards under the Tort" }, { "docid": "23380520", "title": "", "text": "304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188, 114 A.L.R. 1487, is that the ultimate results reached in litigation in the Federal Courts predicated upon causes of action arising from the State law, must be the same as if the litigation had been conducted in the State courts. While the Federal Courts should properly employ its own rules of procedure to secure the just, efficient and prompt determination of all claims inherent in any litigation before it, nevertheless the ultimate results reached must be such as accord with the substantive jurisprudence of the State of the forum.” In Brown v. Cranston, 2 Cir., 1942, 132 F.2d 631, 633-634, 148 A.L.R. 1178 cer-tiorari denied sub nom. Cranston v. Thompson, 1943, 319 U.S. 741, 63 S.Ct. 1028, 87 L.Ed. 1698 it was held in a contribution action that Rule 14 cannot be construed “ * * * as to give the defendant a recovery which could not be obtained through any remedy available in the New York State Courts.” Professor Moore in his discussion of Rule 14 in 3 Moore’s Federal Practice Para. 14.03 points out that the Rule “creates no substantive rights”; and “does not ‘abridge, enlarge, nor modify the substantive rights of any litigant’ ”. He specifically states that “The Rule does not establish a right of reimbursement, indemnity nor contribution. * * * ” The foregoing is in consonance with the statute authorizing the Supreme Court to promulgate the Federal Rules wherein it is stated that “Such rules shall not abridge, enlarge or modify any substantive right. * * * ” 28 U.S.C. § 2072. Rule 49(b), relied on by the third-party plaintiff, because it deals ■with a situation where a general verdict is accompanied by interrogatories, affords no support to his position. It merely provides that “When the general verdict and the answers [to interrogatories] are harmonious, the court shall direct entry of the appropriate judgment upon the verdict and answers”. The phrase “appropriate judgment” merely means a judgment to which the prevailing party is entitled and here under the applicable substantive law a money judgment against" }, { "docid": "4881610", "title": "", "text": "“sole” cause of the injury and disclaiming its own liability in the matter. Lund American’s assertion of the law is correct, see Murray v. Reliance Insurance Co., 60 F.R.D. 390, 391 (D.Minn.1973), but Crookston Marine, contrary to Lund American’s allegations, has not attempted to substitute Lund American’s liability for its own. It alleges that Lund American is a “sole or a contributing cause” and seeks contribution or indemnity. A third-party claim is proper under Rule 14(a) if the third-party’s liability is in some way dependent on the outcome of the main claim, or the third party is secondarily liable to defendant. United States v. Joe Grasso & Son, Inc., 380 F.2d 749, 751 (5th Cir. 1967); United States Fidelity & Guaranty Co. v. American State Bank, 372 F.2d 449, 450 (10th Cir. 1967). Since contribution is a secondary or derivative liability and is recognized as a basis for bringing a third-party claim, see Wright and Miller, Federal Practice and Procedure § 1446 (1971), Crookston Marine’s claim is a proper one under Rule 14. It is alleged by Lund American that the applicable law does not allow indemnity in the present case so that the third-party complaint should be dismissed. The court need not address that issue since Crookston Marine has asked for contribution as well. A motion to dismiss will not be granted unless Crookston Marine is clearly not entitled to any relief against Lund American. The third party complaint will not be dismissed merely because Crookston Marine may not be entitled to as much indemnity as it seeks in the third-party complaint. Williams v. Midland Constructors, 221 F.Supp. 400, 403 (E.D.Ark.1963). Therefore, if a potential right to contribution could be found to exist between Lund American and Crookston Marine, the latter’s third-party complaint will not be dismissed, even though no right to indemnity would be possible. Rule 14 does not grant any substantive rights. “If by the law of the state a joint tortfeasor is not liable to his co-tortfeasor for contribution, no such liability can be imposed upon him by the federal court on a third-party complaint under" }, { "docid": "8726326", "title": "", "text": "efficiency by eliminating the necessity for the defendant to bring a separate action against a third party who may be derivatively liable to the defendant for all or part of the plaintiff’s original claim. 6 C. Wright & A. Miller, Federal Practice and Procedure § 1442, at 202-03 (1971). Of particular importance is that while Rule 14 provides the procedural mechanism for the assertion of a claim for contribution or indemnity, there must also exist a substantive basis for the third-party defendant’s liability. 3 J. Moore, Moore’s Federal Practice ¶ 14.03[1] and [3] (2d ed. 1987). The substantive basis for Fujikawa’s third-party complaint is a personal claim for contribution or indemnity under ERISA. Accordingly, Fujikawa’s third-party claim necessarily fails since ERISA, the governing substantive law, does not recognize a right of contribution. Thus, the third-party complaint does not contain a legally cognizable third-party claim under Rule 14(a), and the district court’s dismissal of the complaint is affirmed. IV APPEAL NO. 87-2922 A. FACTS AND PROCEEDINGS After judgment was rendered in Civ. No. 85-1188 (Appeal Nos. 87-1801/87-1931), Kim moved for an award of attorneys’ fees in the amount of $106,875.50, pursuant to 29 U.S.C. § 1132(g)(1). The district court considered the relevant criteria in Hummell v. S.E. Rykoff & Co., 634 F.2d 446 (9th Cir.1980), and concluded that Kim was entitled to reasonable attorneys’ fees. The court then performed a lodestar calculation and examined whether any of the factors in Kerr v. Screen Extras Guild, Inc., 526 F.2d 67, 70 (9th Cir.1975), cert. denied, 425 U.S. 951, 96 S.Ct. 1726, 48 L.Ed.2d 195 (1976), required adjustment of the lodestar amount. In an opinion and order filed October 21, 1987, the court awarded Kim $101,238.75 in attorneys’ fees representing 1039.50 hours of work. The fees order was subsequently amended to expressly exclude the outer island representatives from liability for Kim’s attorneys’ fees. On appeal, Fujikawa does not dispute Kim’s entitlement to attorneys’ fees or that the rates applied were reasonable. He does, however, contend the district court erred in determining that 1039.50 hours represented a reasonable amount of time expended on the" } ]

[ { "docid": "18218927", "title": "", "text": "a passenger in an automobile to have insurance protection available under the driver’s policy, which may afford primary coverage, and under his own policy, which may afford secondary coverage, and to sustain injuries due to the negligence of an uninsured motorist in excess of the protection available to him under the policy issued by the primary carrier. In such a situation the injured passenger is quite likely to seek additional compensation from his own insurance carrier, as has happened in this case. The validity of the position assumed by Southern Farm has not yet been determined by the Supreme Court of Arkansas. The question has arisen in a number of other States and was before Senior Judge Miller in the Western District of Arkansas in Robey v. Safeco Insurance Co., W.D.Ark., 270 F.Supp. 473, which was decided on July 11, 1967. In that ease Safeco oeeup'.ed the same position as is occupied by Southern Farm in this case, and the “other insurance” clause in the Safeco policy was substantially the same as the “other insurance” clause in Southern Farm’s policy. In a full opinion Judge Miller reviewed conflicting authorities from other jurisdictions and reached a decision adverse to the position of Safeco, which had made the same argument as Southern Farm is making here. In a pre-trial order entered late in December 1967 this Court advised counsel that it would be inclined to follow Judge Miller’s decision to the extent that it might turn out to be in point even though the Court recognized that there is authority which would uphold Southern Farm’s position. Counsel for Southern Farm has filed a good brief in support of his client’s position. Counsel argues, first, that Robey is distinguishable from this case; second, that the result reached in Robey is not sound; and, third, that in any event the decision of the Supreme Court of Arkansas in Varvil v. MFA Mutual Insurance Co., 243 Ark. 692, 421 S.W.2d 346, decided six months to the day after the decision in Robey, demonstrates that the Supreme Court of Arkansas would not reach the result arrived" } ]

[ { "docid": "11793772", "title": "", "text": "policies presents a different problem as these clauses, as usually written with the limitation of only being liable for the difference between the policy limits of the primary insurer and the policy under consideration, generally operate to provide no protection whatever as the limits are usually the same; and, of course, there is the further important point of the statutory requirement of uninsured motorist acts affording protection in at least minimum amounts. This latter factor is not involved in the fire insurance cases and does not present the same kind of issue in the personal liability cases. The Arkansas Supreme Court also held in Varvil v. M. F. A. Mutual Insurance Companies, 243 Ark. 692, 421 S.W.2d 346 (1967) that two separate identical policies of liability insurance setting a maximum funeral benefit of $1,000 provided only actual total coverage of $1,000 for the funeral benefit, the Court giving full effect to a policy provision of: “Other Automobile Insurance In The Company — With respect to any occurrence, accident, death or loss to which this and any other automobile insurance policy issued to the named insured or spouse by the company also applies, the total limit of the company’s liability under all such policies shall not exceed the highest applicable limit of liability or benefit amount under any one such policy.” While this case is of some benefit in attempting to construe Arkansas law (it had not been handed down at the time of the District Court’s decision), we think the ease is distinguishable on its facts (1) as it is not an uninsured motorist case, and (2) the particular language employed in the policy clearly sets forth the total benefit recoverable under multiple policies in the issuing company. Our view is supported by the recent District Court decision of Judge Henley in the case of Childers v. Southern Farm Bureau Casualty Insurance Co. and M. F. A., 282 F.Supp. 866 (E.D.Ark.1968). Accepting the District Court’s holding that the Other Insurance clause is valid, at least to the Northwestern policy, brings us to the second question concerning the proper setoff or" }, { "docid": "3967883", "title": "", "text": "shall be deemed not to exceed the higher of the applicable limits of liability of this insurance and such other insurance, and the Company shall not be liable for a greater proportion of any loss to which Coverage E applies than the applicable limit of liability hereunder bears to the sum of the applicable limits of liability of this insurance and such other insurance.” Prior to the decision of the Supreme Court of Arkansas in the Wallace case, the federal courts in Arkansas and the Court of Appeals for the Eighth Circuit had held in at least two cases that policy provisions identical or similar to the provision contained in defendant’s policy were void as violative of Ark.Stats. § 66-4003. Robey v. Safeco Ins. Co. of America, W.D.Ark., 270 F.Supp. 473, aff’d 8 Cir., 399 F.2d 330; Childers v. Southern Farm Bureau Casualty Ins. Co., E.D.Ark., 282 F.Supp. 866; cf. Carter v. Saint Paul Fire and Marine Insurance Co., E.D.Ark., 283 F.Supp. 384. In Wallace, supra, the Arkansas Supreme Court held that the anti-stacking provision of the policy there in suit did not violate the Arkansas statute. In seeking to distinguish the Wallace case from this case counsel for plaintiff urges that there both of the policies involved had been issued by the same company whereas here the policies were issued by different companies. The distinction drawn by counsel is factually valid, but this Court has not read and does not read Wallace so narrowly. The language of the final paragraph of the Wallace opinion dealing with the purpose of the statute and its reference to Robey and to Maryland Casualty Co. v. Howe, 106 N.H. 422, 213 A.2d 420 (p. 229 of 245 Ark.), indicate that it would make no difference to the Supreme Court of Arkansas whether the plaintiff was covered by two policies issued by the same company or by two policies issued by different companies. In any event this Court has in fact held that Wallace does not apply to the situation presented here and will adhere to its holding until a contrary conclusion is reached" }, { "docid": "11793777", "title": "", "text": "States District Court of Arkansas construing Arkansas law as voiding restrictive clauses excluding vehicles owned by the Government or any governmental unit, and a diminution clause allowing the insurer a credit on workmen’s compensation benefits. Carter v. Saint Paul Fire and Marine Insurance Company, 283 F.Supp. 384 (E.D.Ark. 1968). We think the District Court reached a proper decision in construing the phrase “other insurance available” to mean insurance proceeds actually available to the insured. This brings us to a companion question of the deductibility of medical expenses paid or available from the amount recovered for bodily injury or death under the Uninsured Motorists coverage. The Medical Expenses coverage is separate and distinct from the Uninsured Motorists protection coverage for which an additional premium is properly charged. If we were viewing this issue initially, we think any recovery of medical expenses should not be deductible from the bodily injury loss sustained under the Uninsured Motorists coverage for the reasons previously discussed. But having approved Judge Miller’s holding of validity under current Arkansas law of other insurance clauses, we are foreclosed from according any different treatment on these medical expenses and must give effect to the Other Insurance clauses contained the policy as respects medical expenses. in The next question is whether the second policy issued by Safeco provides any coverage to the insured. Safeco contends that the Varvil case controls this issue as it dealt with multiple policies issued by the same insurer; and this Court must apply the State law as it exists at the time the appeal is heard and not at the time of the District Court’s decision. Vandenbark v. Owens-Illinois Glass Co., 311 U.S. 538, 61 S.Ct. 347, 85 L.Ed. 327 (1941). For reasons previously discussed relating to the actual phraseology used in the policies and because Varvil is not an uninsured motorist case, we do not think that case controlling and approve the District Court’s resolution of this issue. The Arkansas case of Kansas City Fire & Marine Insurance Company v. Epperson, 234 Ark. 1100, 356 S.W.2d 613 (1962), held that a single policy covering two" }, { "docid": "17031407", "title": "", "text": "of those states injured by the negligence of their fellow citizens covered by liability insurance poli cies issued by foreign insurers could litigate or be compelled by removal to litigate in the federal courts claims that ordinarily would have been litigated in the local state courts. Lassiter v. State Farm Mutual Automobile Insurance Co., 371 F.Supp. 1221 (E.D.Ark.1974). Courts which have construed § 1332(c) have uniformly held that Congress intended the word “direct” to limit the word “action” so that its impact is narrowed to those situations in which an injured party is permitted to sue, directly and without joinder of the tortfeasor, the tortfeasor’s liability insurer without first obtaining a judgment against the tortfeasor himself. Lank v. Federal Insurance Co., 309 F.Supp. 349 (D.Del.1970); see White v. United States Fidelity and Guaranty Co., supra; Walker v. Firemans Fund Insurance Co., 260 F.Supp. 95 (D.Mont.1966); Carvin v. Standard Accident Insurance Co., 253 F.Supp. 232 (E.D.Tenn.1966), aff’d, 395 F.2d 326 (6 Cir. 1968). Accordingly, actions by an insured against his own insurer under the uninsured motorist provisions of the policy have been held not to constitute direct action within the proviso of § 1332(c). Adams v. State Farm Mutual Automobile Insurance Co., 313 F.Supp. 1349 (N.D.Miss. 1970); Bishop v. Allstate Insurance Co., 313 F.Supp. 875 (W.D.Ark.1970); Inman v. MFA Mutual Insurance Co., 264 F.Supp. 727 (E.D.Ark.1967). In the instant case, Plaintiff has brought an action against his own insurer under the uninsured motorist coverage provisions of the policy. In view of the foregoing analysis of § 1332(c), it is apparent that Plaintiff’s suit is not a “direct action” within the meaning of the proviso of said section. Therefore, the Court finds and concludes that the jurisdictional allegations of Defendant’s Petition for Removal are sufficient, if proven, to establish jurisdiction based on diversity of citizenship under 28 U.S.C. § 1332. Accordingly, Plaintiff’s request that this action be remanded to the District Court of Oklahoma County should be denied. Plaintiff is directed to respond to Defendant’s Motion for Consolidation within ten (10) days of this date. If said Motion is opposed said Response" }, { "docid": "5448086", "title": "", "text": "resists both motions. I. The uninsured motorist endorsement provided, among other things, that: “The company shall not be obligated to pay under this Coverage that part of the damages which the insured may be entitled to recover from the owner or operator of an uninsured automobile which represents expenses for medical services paid or payable under Part II.” Part II of the policy is the medical payment coverage. In two very recent cases the Supreme Court of Arkansas for the first time has passed upon the validity of certain provisions appearing in standard uninsured motorist endorsements. M.F.A. Mutual Insurance Co. v. Bradshaw, 245 Ark. 83, 431 S.W.2d 252; M.F.A. Mutual Insurance Co. v. Wallace, 245 Ark. 227, 431 S.W.2d 742. In the Bradshaw case three policy provisions were involved. One was a stipulation that a judgment obtained by the insured against an uninsured motorist in an action commenced without the consent of the insurer should not be binding on the insurer. Another provided for forfeiture of uninsured motorist protection if the insured prosecuted a suit against an uninsured motorist to judgment without the consent of the insurer. A third required the parties to submit the question of the amount to be paid to the insured to arbitration. The Court held that in general the provisions of an uninsured motorist endorsement are matters of contract between the parties, but that provisions which are prohibited by statute or which are contrary to public policy are void. And the Court struck down the policy provisions requiring arbitration and providing for the forfeiture of coverage if the insured without the consent of the insurer obtained a judgment against an uninsured motorist. The stipulation that the insurer should not be bound by a judgment against the uninsured motorist in an action brought by the insured without the consent of the insurer was upheld as reasonable and proper. In Wallace the Court upheld the validity of a policy provision against the “stacking” of uninsured motorist coverage by an insured covered by more than one policy. In so holding the Supreme Court reached a result directly opposite" }, { "docid": "11224923", "title": "", "text": "District of Arkansas passed upon the validity of certain restrictive clauses in policies containing uninsured motorist provisions. In both, the court held they were invalid. In Wortman v. Safeco Insurance Company of America, 227 F.Supp. 468 (1962), this Court held the arbitration provision contained in the policy was void and unenforceable. In MFA Mutual Insurance Co. v. Lovins, 248 F.Supp. 108, at pp. 111 and 112 (1965), this Court said: “This Court has little doubt that the Supreme Court of Arkansas would hold that the clause forbidding the injured insured to sue the tortfeasor without the consent of his insurance company, upon penalty of the insured losing his contract coverage is against public policy and void.” After the enactment of the Arkansas Act, in Robey v. Safeco Insurance Company of America, 270 F.Supp. 473 (D.C. Ark.1967), Judge John E. Miller had before him the question of the legal effect of the “other insurance” clauses in two policies issued to plaintiff by Safeco. The terms of the policies were identical with the exception of the amount of coverage, the description of the vehicles, and the dates of issuance. Both of the policies contained an uninsured motorist provision, and a provision limiting liability where there was “other insurance.” Judge Miller held that: “The ‘other insurance’ provisions in the Safeco policies are not applicable with respect to each other. The contention of the defendant that its liability should be pro-rated between the two policies is invalid. ■K' * * * * -X- “The liability of defendant was $10,000 under each policy. ****** “The effect of the issuance of the second policy * * * which also contained the uninsured motorist clauses was to provide Robey coverage of $20,-000/$40,000 for uninsured motorist protection.” In his opinion Judge Miller cited a number of supporting cases from other jurisdictions, including Bryant v. State Farm Mutual Automobile Ins. Co., 205 Va. 897, 140 S.E.2d 817 (1965); and Sellers v. United States Fidelity & Guaranty Co. (Fla.1966), 185 So.2d 689. The pertinent portions of both statutes were quoted indicating that they were “practically identical” with the Arkansas Uninsured" }, { "docid": "5448088", "title": "", "text": "to that reached by Judge Miller in Robey v. Safeco Insurance Co., W.D.Ark., 270 F.Supp. 473, aff’d 8 Cir., 399 F.2d 330, and by this Court in Childers v. Southern Farm Bureau Casualty Insurance Co., E.D.Ark., 282 F.Supp. 866, the judgment in which case was later vacated following the Wallace decision. The Supreme Court of Arkansas has not yet passed upon the validity of a provision in an uninsured motorist endorsement permitting the insurer to take credit for payments made under the medical payments coverage of the overall policy. Nor has it passed upon yet another provision which the Court will have occasion to mention. In its opinion in the Robey case, supra, the Court of Appeals referred to the duty of federal district courts to make predictions of State law as an “occupational hazard” of those courts. The decision of the Arkansas Court in the Wallace case emphasizes the hazard, particularly in the comparatively new field of uninsured motorist protection. The validity of the provisions now under consideration was involved in the Robey case along with the question of the validity of the prohibition against the “stacking” of coverage. Judge Miller upheld the former provision, and the Wallace case does not impair that portion of the Robey decision. In this Court’s estimation the provision in question is a reasonable one and does not offend either the statute or public policy. Further, the Court is inclined to follow Judge Miller’s Robey decision to the extent that it has not been upset by the Wallace case. Cf. Childers v. Southern Farm Bureau Casualty Ins. Co., supra, 282 F.Supp. at 869. It follows that plaintiff is entitled to judgment against the defendant in the sum of $19,000 only, plus the costs of the action. Since she is not recovering the full amount for which she sued, she is not entitled to any penalty or attorney’s fee. II. The controversy between plaintiff and intervenor presents a number of questions, namely: (1) Whether intervenor is entitled to a lien on any part of plaintiff’s uninsured motorist recovery. (2) Assuming that intervenor is entitled to" }, { "docid": "3967882", "title": "", "text": "time of the accident plaintiff was also protected by a policy issued by another company to Willis, which policy also provided uninsured motorist coverage. It is inferable that both policies had uninsured motorist limits of $10,000 and $20,000. It appears that Willis’s insurance carrier had the “primary coverage” with respect to the accident, and the defendant relies on the following language appearing in its own policy and set forth in the complaint: “OTHER INSURANCE-COVERAGE E. With respect to bodily injury to an insured while occupying an automobile not owned by the Named Insured, the insurance under Coverage E shall apply only as excess insurance over any other similar insurance available to such occupant and applicable to such automobile as primary insurance, and this insurance shall then apply only in the amount by which the applicable limit of liability for this Coverage exceeds the applicable limit of liability of such other insurance. “Except as provided in the foregoing paragraph, if the Insured has other similar insurance available to him and applicable to the accident, the damages shall be deemed not to exceed the higher of the applicable limits of liability of this insurance and such other insurance, and the Company shall not be liable for a greater proportion of any loss to which Coverage E applies than the applicable limit of liability hereunder bears to the sum of the applicable limits of liability of this insurance and such other insurance.” Prior to the decision of the Supreme Court of Arkansas in the Wallace case, the federal courts in Arkansas and the Court of Appeals for the Eighth Circuit had held in at least two cases that policy provisions identical or similar to the provision contained in defendant’s policy were void as violative of Ark.Stats. § 66-4003. Robey v. Safeco Ins. Co. of America, W.D.Ark., 270 F.Supp. 473, aff’d 8 Cir., 399 F.2d 330; Childers v. Southern Farm Bureau Casualty Ins. Co., E.D.Ark., 282 F.Supp. 866; cf. Carter v. Saint Paul Fire and Marine Insurance Co., E.D.Ark., 283 F.Supp. 384. In Wallace, supra, the Arkansas Supreme Court held that the anti-stacking provision" }, { "docid": "5448085", "title": "", "text": "for her attorney should be deducted from any award in her favor before allowing the intervenor to be subrogated. Subject to a narrow exception to be indicated, controlling facts are not in dispute and have been stated already. The issues may be summarized as follows: 1. As between plaintiff and defendant. (a) Whether defendant is entitled to credit for the $1,000 paid under the medical payments coverage. (b) Whether plaintiff is entitled to an award of statutory penalty and attorney’s fee. 2. As between plaintiff and intervenor. (a) Whether and to what extent the intervenor is entitled to a subrogation lien on plaintiff’s uninsured motorist award. (b) Whether a reasonable attorney’s fee for plaintiff’s attorney should be deducted from plaintiff’s award before impressing intervenor’s lien, if any, on the balance. (c) The amount of such deduction, if any; this issue is actually the only factual issue in the case which might require evidence to resolve. Those issues are before the Court on motions for summary judgment filed by the intervenor and by the defendant; plaintiff resists both motions. I. The uninsured motorist endorsement provided, among other things, that: “The company shall not be obligated to pay under this Coverage that part of the damages which the insured may be entitled to recover from the owner or operator of an uninsured automobile which represents expenses for medical services paid or payable under Part II.” Part II of the policy is the medical payment coverage. In two very recent cases the Supreme Court of Arkansas for the first time has passed upon the validity of certain provisions appearing in standard uninsured motorist endorsements. M.F.A. Mutual Insurance Co. v. Bradshaw, 245 Ark. 83, 431 S.W.2d 252; M.F.A. Mutual Insurance Co. v. Wallace, 245 Ark. 227, 431 S.W.2d 742. In the Bradshaw case three policy provisions were involved. One was a stipulation that a judgment obtained by the insured against an uninsured motorist in an action commenced without the consent of the insurer should not be binding on the insurer. Another provided for forfeiture of uninsured motorist protection if the insured prosecuted a suit" }, { "docid": "9416416", "title": "", "text": "District of Minnesota, presided at the trial pursuant to special designation. . The court properly made rulings with regard to each motion. Montgomery Ward & Co. v. Duncan, 311 U.S. 243, 251, 253, 61 S.Ct. 189, 85 L.Ed. 147 (1940). . St. Louis & S.F. Ry. Co. v. Ferrell, 84 Ark. 270, 105 S.W. 263, 264 (1907). See Missouri Pacific Railroad Company v. Ellison, Ark., 465 S.W.2d 85, 88-89 (1971); Sherman v. Missouri Pacific Railroad Company, 238 Ark. 554, 383 S.W.2d 881, 882-884 (1964); Chicago Rock Island & Pacific Railroad Company v. Sparks, 220 Ark. 412, 248 S.W.2d 371, 372-373 (1952); St. Louis & S.F. Ry. Co. v. Perryman, 213 Ark. 550, 211 S.W.2d 647, 650-652 (1948); and Smith v. Missouri Pacific Railroad Company, 208 Ark. 40, 184 S.W.2d 951, 952 (1945). Cf. Phillips v. Kurn, 145 F.2d 908, 911-912 (CA8 1944). Compare, Prosser, Law of Torts, § 41, at 238 (4th Ed. 1971). . R., at 50. (Appendix, at 39). . Under Arkansas decisional law, a motorist may, at least to some extent, assume that an approaching train will sound the warning required by statute. Missouri Pacific Railroad Company v. Howell, 198 Ark. 956, 132 S.W.2d 176, 179-180 (1939); Missouri Pacific Railroad Company v. Lemons, 198 Ark. 1, 127 S.W.2d 120, 122 (1939); Smith v. Missouri Pacific Railroad Company, 138 Ark. 589, 211 S.W. 657, 658 (1919); Kansas City Southern Railway Company v. Drew, 103 Ark. 374, 147 S.W. 50, 53 (1912); and Arkansas & L. Ry. Co. v. Graves, 96 Ark. 638, 132 S.W. 992, 994 (1910). . “The very essence of [the jury’s] function is to select from among conflicting inferences and conclusions that which it considers most reasonable.” Tennant v. Peoria & Pekin Union Railway Co., 321 U.S. 29, 35, 64 S.Ct. 409, 412, 88 L.Ed. 520 (1944). So it is in Arkansas. See, for example, Page v. Boyd-Bilt, Inc., 246 Ark. 352, 438 S.W.2d 307, 309 (1969); Home Mutual Fire Insurance Company v. Cartmell, 245 Ark. 45, 430 S.W.2d 849, 851-852 (1968); and Missouri Pac. R. Co. et al. v. Yelldell, 199 Ark. 343, 133" }, { "docid": "3967881", "title": "", "text": "Memorandum and Order HENLEY, Chief Judge. On motion of the defendant to dismiss the complaint for failure to state a claim upon which relief can be granted. This is another case involving the validity of “anti-stacking” provisions appearing in uninsured motorist endorsements in automobile insurance policies. The problem was considered by the Supreme Court of Arkansas in MFA Mutual Insurance Co. v. Wallace, 245 Ark. 227, 431 S.W.2d 742, relied on by defendant here. Accepting as true the facts alleged in the complaint, it appears that on June 28, 1968, the plaintiff was injured while riding in a car owned and operated by one Gerald Willis; the car was involved in an accident due to the negligence of an uninsured motorist. At the time of the accident plaintiff was protected by his own policy issued by the defendant, The Home Insurance Company. While the complaint does not so allege, it is evident from the record as a whole including the memorandum briefs of counsel in connection with the motion now under consideration that at the time of the accident plaintiff was also protected by a policy issued by another company to Willis, which policy also provided uninsured motorist coverage. It is inferable that both policies had uninsured motorist limits of $10,000 and $20,000. It appears that Willis’s insurance carrier had the “primary coverage” with respect to the accident, and the defendant relies on the following language appearing in its own policy and set forth in the complaint: “OTHER INSURANCE-COVERAGE E. With respect to bodily injury to an insured while occupying an automobile not owned by the Named Insured, the insurance under Coverage E shall apply only as excess insurance over any other similar insurance available to such occupant and applicable to such automobile as primary insurance, and this insurance shall then apply only in the amount by which the applicable limit of liability for this Coverage exceeds the applicable limit of liability of such other insurance. “Except as provided in the foregoing paragraph, if the Insured has other similar insurance available to him and applicable to the accident, the damages" }, { "docid": "11793778", "title": "", "text": "clauses, we are foreclosed from according any different treatment on these medical expenses and must give effect to the Other Insurance clauses contained the policy as respects medical expenses. in The next question is whether the second policy issued by Safeco provides any coverage to the insured. Safeco contends that the Varvil case controls this issue as it dealt with multiple policies issued by the same insurer; and this Court must apply the State law as it exists at the time the appeal is heard and not at the time of the District Court’s decision. Vandenbark v. Owens-Illinois Glass Co., 311 U.S. 538, 61 S.Ct. 347, 85 L.Ed. 327 (1941). For reasons previously discussed relating to the actual phraseology used in the policies and because Varvil is not an uninsured motorist case, we do not think that case controlling and approve the District Court’s resolution of this issue. The Arkansas case of Kansas City Fire & Marine Insurance Company v. Epperson, 234 Ark. 1100, 356 S.W.2d 613 (1962), held that a single policy covering two vehicles providing for $1,000 medical coverage per person resulted in coverage of $2,000 for medical expenses to the insured’s daughter. Also supportive of the trial court’s resolution of this question is Deterding v. State Farm Mutual Automobile Insurance Company, 78 Ill.App.2d 29, 222 N.E.2d 523 (Ill.App. 1966), holding the statutory uninsured motorist protection is a minimum protection and not maximum, and additional protection may be offered by the insurance companies. It held that when different insurers are involved the other insurance provision applies, but that when the same insurer issued multiple policies the coverage is the total amount of both policies and actual damages are recoverable to the full extent of the limits of both policies. The last issue raised by Safeco relates to the trial court awarding damages in excess of $10,000. This is a summary judgment proceeding and Safeco stipulated that Robey’s damages were $10,-000. Judge Miller was familiar with Robey’s injuries and expenses, having heard the case of Robey v. Northwestern Security Insurance Company, 270 F.Supp. 466 (W.D.Ark.1967). Robey was 37 years" }, { "docid": "11875887", "title": "", "text": "63 (E.D.Ark.1963); Kinard v. Mutual Benefit Health & Acc. Ass’n, 108 F.Supp. 780, 784-785 (W.D.Ark.1952); American Cas. Co. v. Harrison, 96 F.Supp. 537, 550 (W.D.Ark.1951); Bankers Nat’l Ins. Co. v. Hembey, 217 Ark. 749, 233 S.W.2d 637, 640 (1950); Metropolitan Life Ins. Co. v. Stagg, 215 Ark. 456, 221 S.W.2d 29, 32 (1949); Hartford Fire Ins. Co. v. Smith, 200 Ark. 508, 139 S.W.2d 411, 413 (1940). See C & L Rural Elec. Coop. Corp. v. Kincade, 183 F.Supp. 935, 940 (N.D.Miss.1960). The dictum which appears in Western Cas. & Sur. Co. v. Independent Ice Co., 190 Ark. 684, 80 S.W.2d 626, 627 (1935), and which is stressed by the defendants here, was fully considered and rejected by this court in Standard Acc. Ins. Co. v. Roberts, supra, p. 799 of 132 F.2d. In view of the later Arkansas cases there and herein cited, that dictum appears to have lost whatever contrary significance its language might once have possessed. In addition, in Arkansas one of the conditions for the invocation of estoppel is prejudice or a change of position to one’s detriment. James Talcott, Inc. v. Associates Discount Corp., 302 F.2d 443, 446 (8 Cir. 1962); Greif Bros. Cooperage Corp. v. United States Gypsum Co., 341 F.2d 167, 173 (8 Cir. 1965) ; United States v. Thompson, 272 F.Supp. 774, 784 (E.D.Ark.1967); American Cas. Co., etc. v. Hambleton, 233 Ark. 942, 349 S.W.2d 664, 667 (1961). Some states more broadly apply the estoppel principle and use it to extend coverage in a situation where the insurer, without reservation of rights, has assumed vital control of a case. See, for example, Salerno v. Western Cas. & Sur. Co., 336 F.2d 14 (8 Cir. 1964). But even that result rests on prejudice or waiver. And other cases point out that this rationale does not apply where the insurer has withdrawn at a time and under circumstances where the insured is left an adequate opportunity to defend. See Boulet v. Millers Mut. Ins. Ass’n, 362 F.2d 619, 623 (8 Cir. 1966), and cases cited. Judge Young specifically found that Allstate’s action caused no" }, { "docid": "18119026", "title": "", "text": "a rather extensive search, has found none. The questions herein involved are novel and peculiar to this type of insurance. Plaintiffs contend alternatively that the policy unambiguously affords them coverage as excess insurance over the underlying automobile liability insurance contract providing minimum limits, or that, if the policy does not read unambiguously in their favor, there are ambiguities in Insuring Agreement III and in Endorsement ML 7.0.13 which must be resolved in their favor. Either way, according to plaintiffs, the policy issued by defendant provides excess coverage above the limits provided by the only automobile liability policy which covers the occurrence. The defendant contends that the question for determination is the amount of coverage afforded by the policy issued by it; that the policy is a Professional Comprehensive Personal Catastrophe Liability Policy, in which defendant agreed to pay up to the policy limit of one million dollars for any loss suffered by plaintiff in excess of the limits of the underlying insurance policies set out in Schedule A of the policy. Alternatively, and by amendment to its answer, the defendant alleged that the plaintiff Richard L. Wommack made misrepresentation or concealment of facts in his application in answer to question five, “number, type and garage locations of automobiles owned or hired by you and your wife,” in that he was the owner of at least three automobiles and possibly four. The substantive law of Arkansas must be applied and followed. Arkansas law relative to the construction of insurance contracts differs in no respect from that almost universally applied, Jefferson Insurance Co. of Pine Bluff, Ark. v. Hirchert, (8 Cir. 1960) 281 F.2d 396, in that the contract will, in the event of an ambiguity, generally be construed strongly against the company and liberally in favor of the insured. Securities and Exchange Comm. v. Arkansas Loan & Thrift Corp., (W.D.Ark.1969) 297 F.Supp. 73; Glens Falls Group Ins. Co. v. Simpson, (1969) 246 Ark. 640, 439 S.W.2d 292; M.F.A. Mutual Ins. Co. v. McKinley, (1968) 245 Ark. 326, 432 S.W.2d 484. A concomitant rule of construction is that words of exception or" }, { "docid": "11224922", "title": "", "text": "In those instances where statutory bonds are required in Arkansas the rule is well settled that in determining the extent of liability, if there is any conflict between the statutes and the bond, the language of the statute is controlling. See: New Amsterdam Casualty Co. v. Detroit Fidelity & Surety Co., 187 Ark. 97, 58 S.W.2d 418; State ex rel. Berry Asphalt Co., et al. v. Western Surety Co., 223 Ark. 344, 266 S.W.2d 835; and Detroit Fidelity & Surety Co. v. Yaffee Iron & Metal Co., Inc., 184 Ark. 1095, 44 S.W.2d 1085. In the Yaffee Iron & Metal Co., Inc., case the court said: “The law requiring the bond to be executed to cover liabilities in accordance with the terms of the statute, the principal and surety, even by express terms of the bond, could not limit or restrict their liability by employing or omitting to include therein the terms of the statute.” In two cases arising prior to the enactment of the Arkansas Uninsured Motorist Act the District Court for the East-tern District of Arkansas passed upon the validity of certain restrictive clauses in policies containing uninsured motorist provisions. In both, the court held they were invalid. In Wortman v. Safeco Insurance Company of America, 227 F.Supp. 468 (1962), this Court held the arbitration provision contained in the policy was void and unenforceable. In MFA Mutual Insurance Co. v. Lovins, 248 F.Supp. 108, at pp. 111 and 112 (1965), this Court said: “This Court has little doubt that the Supreme Court of Arkansas would hold that the clause forbidding the injured insured to sue the tortfeasor without the consent of his insurance company, upon penalty of the insured losing his contract coverage is against public policy and void.” After the enactment of the Arkansas Act, in Robey v. Safeco Insurance Company of America, 270 F.Supp. 473 (D.C. Ark.1967), Judge John E. Miller had before him the question of the legal effect of the “other insurance” clauses in two policies issued to plaintiff by Safeco. The terms of the policies were identical with the exception of the amount" }, { "docid": "22427126", "title": "", "text": "and the state where it was to be performed as considerations in the choice of law process, rather than as alternative and exclusive tests, as Cooper might suggest. E.g., Yarbrough v. Prentice Lee Tractor Co., 1972, 252 Ark. 349, 479 S.W.2d 549; Hutchingson v. Republic Finance Co., 1963, 236 Ark. 832, 370 S.W.2d 185, 186. They have also considered, as an important factor, the state in which the contract was negotiated. See Yarbrough, 252 Ark. at 353, 479 S.W.2d at 553; Tri-State Equipment, 272 Ark. at 409, 614 S.W.2d at 939. These contacts are among those enumerated in the Restatment (Second) of Conflict of Laws § 188(2). We think it not unlikely that in an appropriate case the Arkansas Supreme Court would consider the other contacts referred to in the Restatement (Second), specifically, the location of the subject matter of the contract and domicile of the parties. See id. § 188(2)(d), (e). The federal court in Huie appears to have considered all the Restatement (Second) contacts, see 254 F.Supp. at 554, and we know of no Arkansas decision, in sixteen years, repudiating that case. The weight to be assigned the various contacts presents an additional problem. The Arkansas Supreme Court has given great weight to the law of the state where the contract was negotiated. E.g., Yarbrough v. Prentice Lee Tractor Co., 1972, 252 Ark. 349, 479 S.W.2d 549. It has also sometimes given great weight to the law of the state in which the contract was made. In one recent case, deviating from the “most significant relationship” approach, the court flatly held that “[t]he validity of the contract is determined by the place in which it was made”. Ladd v. Ladd, 1979, 265 Ark. 725, 580 S.W.2d 696, 699; see also Edwin F. Armstrong & Co. v. Ben Pearson, Inc., E.D. Ark.1967, 294 F.Supp. 163, 165, aff’d, 8 Cir. 1968, 404 F.2d 610; Metropolitan Life Insurance Co. v. Kendall, 1955, 225 Ark. 731, 284 S.W.2d 863, 864. On the other hand, when the place where the final contract was signed was fortuitous, the result of a mistake in the" }, { "docid": "9416417", "title": "", "text": "that an approaching train will sound the warning required by statute. Missouri Pacific Railroad Company v. Howell, 198 Ark. 956, 132 S.W.2d 176, 179-180 (1939); Missouri Pacific Railroad Company v. Lemons, 198 Ark. 1, 127 S.W.2d 120, 122 (1939); Smith v. Missouri Pacific Railroad Company, 138 Ark. 589, 211 S.W. 657, 658 (1919); Kansas City Southern Railway Company v. Drew, 103 Ark. 374, 147 S.W. 50, 53 (1912); and Arkansas & L. Ry. Co. v. Graves, 96 Ark. 638, 132 S.W. 992, 994 (1910). . “The very essence of [the jury’s] function is to select from among conflicting inferences and conclusions that which it considers most reasonable.” Tennant v. Peoria & Pekin Union Railway Co., 321 U.S. 29, 35, 64 S.Ct. 409, 412, 88 L.Ed. 520 (1944). So it is in Arkansas. See, for example, Page v. Boyd-Bilt, Inc., 246 Ark. 352, 438 S.W.2d 307, 309 (1969); Home Mutual Fire Insurance Company v. Cartmell, 245 Ark. 45, 430 S.W.2d 849, 851-852 (1968); and Missouri Pac. R. Co. et al. v. Yelldell, 199 Ark. 343, 133 S. W.2d 642, 643 (1939). See generally, Comment, Arkansas Standards for Testing the Sufficiency of Evidence, 25 Arkansas Law Review 288 (1971). . The jury was instructed that proof of violation of the warning statute proves negligence. R., at 186. This instruction squares with pertinent Arkansas de-cisional law. Missouri Pacific Railroad Company v. Yelldell, 199 Ark. 343, 133 S.W.2d, at 643. . St. Louis Southwestern Railway Company v. Farrell, 242 Ark. 757, 416 S.W. 2d 334, 338 (1967); St. Louis Southwestern Railway Company v. Jackson, 242 Ark. 858, 416 S.W.2d 273, 278 (1967); and Hawkins v. Missouri Pac. R. Co., 217 Ark. 42, 228 S.W.2d 642, 644 (1950). . On the question of the extrahazardous crossing, the trial judge, quoting verbatim from Arkansas Model Instruction 1805, gave the following instruction: “Plaintiffs contend that the railroad grade crossing in this case was abnormally dangerous, and they have the burden of proving this proposition. “If a railroad grade crossing is frequently used by the traveling public, if trains pass over it frequently, and if the crossing is" }, { "docid": "18119027", "title": "", "text": "to its answer, the defendant alleged that the plaintiff Richard L. Wommack made misrepresentation or concealment of facts in his application in answer to question five, “number, type and garage locations of automobiles owned or hired by you and your wife,” in that he was the owner of at least three automobiles and possibly four. The substantive law of Arkansas must be applied and followed. Arkansas law relative to the construction of insurance contracts differs in no respect from that almost universally applied, Jefferson Insurance Co. of Pine Bluff, Ark. v. Hirchert, (8 Cir. 1960) 281 F.2d 396, in that the contract will, in the event of an ambiguity, generally be construed strongly against the company and liberally in favor of the insured. Securities and Exchange Comm. v. Arkansas Loan & Thrift Corp., (W.D.Ark.1969) 297 F.Supp. 73; Glens Falls Group Ins. Co. v. Simpson, (1969) 246 Ark. 640, 439 S.W.2d 292; M.F.A. Mutual Ins. Co. v. McKinley, (1968) 245 Ark. 326, 432 S.W.2d 484. A concomitant rule of construction is that words of exception or limitation in an insurance contract must be construed strictly against the insurer. Watts v. Minnesota Mutual Life Ins. Co., (1966) 240 Ark. 72, 402 S.W.2d 111; Washington Fire & Marine Ins. Co. v. Ryburn, (1968) 228 Ark. 930, 311 S.W.2d 302. These general rules do not mean, however, that the courts, under the guise of construction, may strain the meaning of ordinary terms in an insurance contract to create an otherwise nonexistent ambiguity. Peacock & Peacock, Inc., v. Stuyvesant Ins. Co., (8 Cir. 1964) 332 F.2d 499; Securities and Exchange Comm. v. Arkansas Loan & Thrift Corp., supra. A policy of insurance, like any other contract, must be construed reasonably and fairly to ascertain and carry out the intention of the parties. A common-sense approach should be used, and generally the words employed in the policy are to be understood in their ordinary sense. Plaintiffs argue that Insuring Agreement III (a) refers to alternative underlying insurance that may be maintained by the insured and considered in determining the point at which defendant’s coverage begins. If" }, { "docid": "1477736", "title": "", "text": "by the defense made at the time of trial. Interstate Life & Accident Insurance Company v. Williamson, supra. We find that State Farm presented a reasonable ground within the teachings of these authorities for refusing to pay the claim. Further evidence that the insurance company was not acting in bad faith is found in its attempt to litigate the provision in the policy which allowed a set-off for payments under the medical provisions of the policy. This defense was stricken by the trial court prior to taking any evidence. On the other hand, the trial judge allowed plaintiff to pursue the matter as evidence of her claim of bad faith. This was also error. No Georgia case has been called to our attention which construes a provision of this type in an automobile liability policy, nor have we in our research been able to discover one. This point has been decided favorably to appellant in other jurisdictions. Boehler v. Insurance Company of North America, 1968, 290 F.Supp. 867, E.D.Ark.; Morgan v. State Farm Mutual Automobile Insurance Company (La.App.1967), 195 So.2d 648. There are cases in other jurisdictions against State Farm’s position. Wittig v. United Services Automobile Association, 1969, 300 F.Supp. 679, N.D. Ind.; Tuggle v. Government Employees Insurance Company (Fla.1968), 207 So.2d 674; Stephens v. Allied Mutual Insurance Company, 1968, 182 Neb. 562, 156 N.W.2d 133. The question is open in Georgia. Appellant had the right to litigate this provision in the policy without being subjected to a claim of bad faith. Life Insurance Co. of Georgia v. Burke, 1963, 219 Ga. 214, 132 S.E.2d 737. III. Notwithstanding our holding above that State Farm had the right to litigate the setoff provision of the policy without being subjected to a claim of bad faith, we nevertheless hold that the district court was correct in striking the defense. The answer must, of course, come from the Georgia law and, as stated, the precise factual situation has not been presented to the Georgia Courts. The Georgia Court of Appeals did hold in Travelers Indemnity Company v. Williams, 1969, 119 Ga.App. 414, 167" }, { "docid": "5448087", "title": "", "text": "against an uninsured motorist to judgment without the consent of the insurer. A third required the parties to submit the question of the amount to be paid to the insured to arbitration. The Court held that in general the provisions of an uninsured motorist endorsement are matters of contract between the parties, but that provisions which are prohibited by statute or which are contrary to public policy are void. And the Court struck down the policy provisions requiring arbitration and providing for the forfeiture of coverage if the insured without the consent of the insurer obtained a judgment against an uninsured motorist. The stipulation that the insurer should not be bound by a judgment against the uninsured motorist in an action brought by the insured without the consent of the insurer was upheld as reasonable and proper. In Wallace the Court upheld the validity of a policy provision against the “stacking” of uninsured motorist coverage by an insured covered by more than one policy. In so holding the Supreme Court reached a result directly opposite to that reached by Judge Miller in Robey v. Safeco Insurance Co., W.D.Ark., 270 F.Supp. 473, aff’d 8 Cir., 399 F.2d 330, and by this Court in Childers v. Southern Farm Bureau Casualty Insurance Co., E.D.Ark., 282 F.Supp. 866, the judgment in which case was later vacated following the Wallace decision. The Supreme Court of Arkansas has not yet passed upon the validity of a provision in an uninsured motorist endorsement permitting the insurer to take credit for payments made under the medical payments coverage of the overall policy. Nor has it passed upon yet another provision which the Court will have occasion to mention. In its opinion in the Robey case, supra, the Court of Appeals referred to the duty of federal district courts to make predictions of State law as an “occupational hazard” of those courts. The decision of the Arkansas Court in the Wallace case emphasizes the hazard, particularly in the comparatively new field of uninsured motorist protection. The validity of the provisions now under consideration was involved in the Robey case" } ]

[ { "docid": "5691586", "title": "", "text": "its liability to the United States or a state in an administrative or judicially approved settlement shall not be liable for claims for contribution regarding matters addressed in the settlement.” CERCLA § 113(f)(2). Allen acknowledges that § 113(f)(2) does permit contribution protection in a situation like this where the defendant settles with the State. The presence of the government is not the only prerequisite, however, according to Allen. There must be an administrative or judicial evaluation of the reasonableness of the settlement, and the mere recitation of the parties’ good faith is insufficient. The court in United States v. Moore, 703 F.Supp. 455 (E.D.Va.1988) refused to grant § 113(f)(2) contribution protection to the defendant, the Department of Defense, when it settled with the EPA, since the settlement had not received administrative approval. The court concluded that there was too much opportunity for collusion between the two government agencies. Allen argues here that there has been no evaluation of the reasonableness of this settlement, so GM should receive no contribution protection under § 113(f)(2). Allen calls for an “in depth evaluation” of this proposed settlement, especially considering the public interest. Other factors to be considered include: A comparison of the strengths of plaintiffs’ case versus the amount of the settlement offer; the likely complexity, length, and expense of the litigation; the amount of opposition to the settlement among affected parties; the opinion of competent counsel; and the stage of the proceedings and the amount of discovery already taken at the time of the settlement. In re Acushnet River & New Bedford Harbor, 712 F.Supp. 1019, 1028 (D.Mass.1989). The Court feels that an evidentiary hearing to explore the fairness and good faith nature of this settlement “is not required by CERCLA or the implementing regulations.” Edward Hines Lumber Company v. Vulcan Materials Co., 1987 WL 27368 (N.D.Ill. Dec. 4, 1987), aff'd, 861 F.2d 155 (7th Cir.1988). Parties enter into settlements to avoid the time and costs of preparing for trial. Requiring evidentiary hearings before entering consent judgments would compel litigation of such issues as “the risk of victory or defeat, the risk" } ]

[ { "docid": "14493355", "title": "", "text": "In addition, this is not the first time that the Eleventh Circuit has encountered consent decrees in the context of CERCLA. In fact, this Court has held that a consent decree gives a party a right to contribution under § 113(f) in Atlanta Gas Light Co. v. UGI Utilities, Inc., 463 F.3d 1201, 1203-04 (11th Cir.2006). In accordance with our precedent, we conclude that Solutia & Pharmacia are entitled to a contribution claim under § 113(f) of CERCLA. Now we must decide whether a party who has a claim under § 113(f) for cleanup costs may also have a claim under § 107(a) for those same costs. Solutia & Pharmacia argue that there is no language in either § 107 or § 113 to suggest that § 107(a) and § 113(f) are mutually exclusive remedies. Be that as it may, CERCLA must “be read as a whole,” Atl. Research, 551 U.S. at 135, 127 S.Ct. at 2336 (quotation marks omitted), such that its remedies remain “clearly distinct.” Id. at 138,127 S.Ct. at 2337 (quotation marks omitted). If a party subject to a consent decree could simply repackage its § 113(f) claim for contribution as one for recovery under § 107(a), then the structure of CERCLA remedies would be completely undermined. For example, parties could circumvent the different statutes of limitations that attach to § 113(f) contribution claims and § 107(a) recovery claims. See 42 U.S.C. § 9613(g)(2)-(3). Further, parties, like Solutia & Pharmacia, could thwart the contribution protection afforded to parties that settle their liability with the EPA, like the Settling Defendants. See 42 U.S.C. § 9613(f)(2). This, in turn, would destroy CERCLA’s statutorily-created settlement incentive. Finally, to allow a § 107(a) claim here would allow parties, like Solutia & Pharmacia, to im pose joint and several liability on Defendants, and other similarly situated parties. Defendants would then be barred from asserting any § 113(f) counterclaims, because Solutia & Pharmacia have already entered into a judicially approved settlement with the EPA. See 42 U.S.C. § 9613(f)(2); Agere Sys., 602 F.3d at 228. For these reasons, we agree with our sister" }, { "docid": "2727486", "title": "", "text": "the on-site landfill. 42 U.S.C. § 9621(e)(1). EPA found that this remedy met the requirements of CERCLA: that is, protects human health and the environment, attains all ARARS ; is cost effective; utilizes permanent solutions and alternative treatment technologies to the maximum extent practicable, and satisfies CERCLA’s preference for remedies that employ treatment that reduces toxicity, mobility or volume as a principal element. Plaintiffs Ex. 5, ROD II at 2; ROD II Summary at 21-24. EPA estimated the capital cost at $7.95 million, and the total present value of the remedy at $19.4 million. Id. at 20. EPA then notified potentially responsible parties (“PRPs”) and invited them to submit a proposed remedial action. EPA and the thirty-five settling defendants reached an agreement for defendant to perform the ROD II remedy. Attached to the Consent Decree is a Scope of Work (“SOW”) which outlines the basic features of the clean-up project for which, the settling defendants have agreed to pay. The SOW specifically required that this on-site incinerator destroy 99.99% of principal organic hazardous waste and 99.9999% of PCBs. The SOW also requires that the incinerator must comply with the substantive requirements of applicable statutes and regulations, including emissions requirements from the federal Clean Air Act and Michigan air pollution laws. The SOW actually goes beyond ROD II in that it includes remediation of residual, contaminated soil at the Site in accordance with an EPA selected remedial action. At least 22 vendors exist for on-site incineration and about 50 other Superfund sites currently use on-site incineration. Plaintiffs Ex. 6, at 6. Under the Consent Decree, EPA reviews the remedial action every five years in accordance with CERCLA, 42 U.S.C. § 9621(c), to assure that human health and the environment are being protected, and EPA may act with additional enforcement if necessary. Consent Decree ¶ 19. Paragraph 64 of the Consent Decree specifically excludes from the agreement of the United States not to sue the defendants, the reimbursement of the Government’s past response costs at the Site. After the Consent Decree was lodged with the Court on July 18, 1991, the U.S." }, { "docid": "22963941", "title": "", "text": "expenditure of considerable time, money, and effort in litigation. In the meantime, chemicals from the Site would continue to leach out and further contaminate the surrounding area. And, of course, as in any lawsuit, plaintiffs have no guarantee of ultimate success. The resources of the governmental parties are limited. If forced to prosecute, they might well extend inordinate amounts of these resources on this single Landfill Site, to the detriment of other areas in other parts of the country. We must keep in mind that the Hyde Park Landfill is only one of many such sites. Hooker Chemicals & Plastics Corp., 540 F.Supp. at 1080. . As explained in greater detail below, the decree’s covenant not to sue contains express exceptions for, among other events: natural resource damage; claims based on a failure by the settling defendants to meet the requirements of the consent decree; liability for violations of federal law which occur during implementation of the remedial action; and reimbursement to the government for the cost of any additional response action undertaken by EPA under CERCLA if (a) conditions at the site, previously unknown to the government are discovered after entry of the decree, or (b) information on previously unknown conditions indicates the remedial action is not protective of the human health and the environment. Consent Decree Section VII. The breadth of these exceptions ensures that whatever remedy defendants implement, they will do so carefully. See also 42 U.S.C. § 9607(a). Moreover, EPA has developed a Technical Assistance Grants (\"TAG”) program which provides monies to citizen groups with matching funds who wish to satisfy themselves that the cleanup is being conducted as agreed upon. . At the end of the original ROD, one of EPA's Regional Administrators stated: In the event that, during the remedial design investigations on the Rose site waste, it is discovered that the cost of thermal destruction exceeds the cost estimate in the Feasibility Study by 50% or that thermal destruction will not be necessary to permanently treat the entire estimated volume of wastes, I will reconsider the Record of Decision to determine if the" }, { "docid": "23195692", "title": "", "text": "either in the designation of the work to be performed or in the selection of the parties who were to perform it. Thus, even if the sums Akzo spent in complying with the section 106 order were disproportionate to its measure of culpability for the contamination of the site, the statute does not necessarily permit Akzo to recover the excess from the government. Only a suit for contribution against other PRPs offers the concrete prospect of making Akzo whole in this regard. For that reason, we suspect that if we were to bar Akzo from pursuing contribution, parties who found themselves in a similar position in the future would simply exercise the intervention right granted them by section 113(i) and oppose the approval of any consent decree that might be construed to foreclose their right to contribution. See 42 U.S.C. § 9613(i); United States v. Acton Corp., 131 F.R.D. 431 (D.N.J.1990); but see Arizona v. Motorola, Inc., 139 F.R.D. 141, 144-46 (D.Ariz.1991). Thus, we might accomplish no more than to shift the battle to a different venue. We have no “disdain” for the contribution protection Congress has bestowed on settling parties in section 113(f)(2). See post at 774. We do, however, think it inconsistent with the legislature’s intent to give “matters addressed” the broad sweep that the dissent proposes. Even the EPA, which stands to gain from any precedent that makes settlements more attractive, does not embrace that approach. The language of the statute, after all, does not create a blanket prohibition against all suits for contribution; the bar extends only so far as the “matters addressed” by the settlement. When the parties to the settlement have not themselves defined those matters explicitly, we believe it in keeping with congressional intent to do so with an eye to the practicalities of the situation underlying the settlement and the reasonable expectations of the settling parties. III. CONCLUSION Based on the totality of the circumstances surrounding the work for which Akzo seeks contribution and the subsequent consent decree between the government and Aigner, we conclude that initial removal work that Akzo was" }, { "docid": "23226754", "title": "", "text": "953 (10th Cir.1987)). The district court found that Farmland’s costs were consistent with the national contingency plan based on trial testimony and Title 40 Code of Federal Regulations § 300.700(c)(3)(ii) (1992) which states: Any response action carried out in compliance with the terms of ... a consent decree entered into pursuant to section 122 of CERCLA, will be considered “consistent with the NCP.” After a careful examination of the record, we cannot say that the district court’s finding is clearly erroneous. III. The CERC parties argue that the district court erred in failing to rule on their Act-of-God and Act-of-Third party defenses. Normally, these defenses would be available to refute PRP status under § 107 which is a prerequisite for § 113 liability. However, in our case, the CERC parties admit their PRP status and § 107 liability. (Appellants’ Appendix, Vol. II at p. 357). Therefore, this issue is moot. Summary In summary, we hold that (1) claims between PRPs to apportion costs between themselves are contribution claims pursuant to § 113 regardless of how they are pled; and (2) under § 113, contribution claims against settling parties are barred as to “matters addressed” in the settlement which shall be construed broadly to encourage settlement and finalize CERCLA liability for settling parties; in this case, based upon the language in both the EPA-Farmland Consent Decree and the language in the EPACERC parties’ Consent Decree and the surrounding circumstances, the CERC parties are protected from any contribution claim Farmland may make in regard to its $700,000 payment to the government but not from Farmland’s $734,058.30 claim for contribution involving remediation costs allegedly caused by the CERC parties. Accordingly, we AFFIRM IN PART, REVERSE IN PART and REMAND to the district court to consider Farmland’s contribution claim under § 113(f) and to apply any equitable factors it determines appropriate. .The $1,439,330 represented what Farmland refers to as \"additional cleanup costs.” Farmland contends that the costs of remediation were increased because of \"the spread of contaminated soil as a result of a cut made [allegedly by CERC] in a drainage ditch on the" }, { "docid": "22963901", "title": "", "text": "entry of the consent decree, or (b) information is received after entry of the consent decree, and these previously unknown conditions or this new information indicate that the remedial action is not protective of human health and the environment. EPA also reserves the right under the decree to sue any person other than the settling defendants in connection with the Site, which it is in the process of doing. The challenge to the covenant not to sue in this case concerns the two-phase cleanup formula described in the decree. Though the settling defendants’ obligations essentially end upon attainment of Phase I TCLs, the remedial action will continue at the Site using money from the trust fund they are required to establish. The State of Michigan argues that the covenant not to sue, which may be enforceable once Phase I levels are reached, violates the provision in 42 U.S.C. § 9622(f)(3) which prevents such covenants from taking effect before the President certifies that the remedial action has been completed. However, we find that this consent decree is written to ensure that the covenant not to sue takes effect only when defendants have completed their work. This satisfies the congressional intent expressed in section 9622(f)(3), while still encouraging a settlement in the public interest as described in section 9622(f)(4). The consent decree expressly provides that only upon certification from the President that the settling defendants have completed their work under the decree and have satisfied the conditions of section 9622(f)(2)(B) of CERCLA may the covenant not to sue take effect. Even though EPA will continue to clean up the Site using funds provided by the settling defendants, the work of defendants will be finished once Phase I levels are achieved. Were the covenant not to sue to take effect at the end of Phase II instead of Phase I, the terms of the decree would provide no additional legal remedies to the government against defendants beyond those which are present under the decree as written. Once defendants complete their work as required under the decree, no reason remains for them to be" }, { "docid": "16486432", "title": "", "text": "defendants have raised questions about the fairness of the two Consent Decrees as they relate to one. another. Also before the court are the settling defendants’ Motions to Dismiss the Cross-Claims of Non-Settling Defendants for contribution and indemnification. Several settling defendants also oppose Motions to Amend Answers to Add Cross-Claims for contribution and indemnification brought by some non-settling defendants. For the reasons stated in this opinion, plaintiffs’ Motions for Entry of Two Partial Consent Decrees as Final Judgments will be allowed. The Motions to Dismiss Cross-Claims will also be allowed. The Motions of Non-Settling Defendants to Amend Answers to Add Cross-Claims for contribution and indemnity will be denied. I. Background A. Nature of Claims As indicated earlier, these actions were brought by the United States, the Commonwealth of Massachusetts, and the State of New Hampshire, under sections 107 and 113 of CERCLA, 42 U.S.C. §§ 9607, 9613, and relevant state laws. Plaintiffs seek to recover costs already incurred and to obtain a declaratory judgment requiring payment of costs to be incurred in relation to four Superfund National Priorities List hazardous waste sites — sites designated annually by EPA for remedial attention. See 42 U.S.C. § 9605. Two of the sites are in Bridgewater and Plymouth, Massachusetts. The other two sites are in London-derry and Nashua, New Hampshire. The States’ complaints contain the same allegations as those in the action brought by the United States, but are concerned only with the two sites within their respective jurisdictions. In CERCLA, Congress created a framework for the United States and the states to respond to releases and threatened releases of hazardous substances into the environment. Under section 104(b) of CERCLA, 42 U.S.C, § 9604(b), the United States is authorized to investigate such releases or threatened releases of hazardous substances, and to respond to those releases in order to protect public health and the environment. Section 105 of CERCLA, 42 U.S.C. § 9605, requires the United States to adopt a National Contingency Plan, codified at 40 C.F.R. § 300, which sets forth the procedures to be followed and the criteria to be considered in" }, { "docid": "22963896", "title": "", "text": "the action — unless for some reason the testing of soil flushing shows that it is not decreasing, but increasing the level of contaminants in the groundwater, in which case EPA will not approve its use at the Rose Site. Consequently, we feel the WRCA and Part 22 Rules would not prohibit soil flushing as long as it is used as a remedial action and is protective of human health and the environment. D. Whether the Decree’s Covenant Not to Sue Violates CERCLA Section 122(f)(3) The State of Michigan argues that Section XYII of the Consent Decree, the Covenant Not to Sue, violates 42 U.S.C. § 9622(f)(3), which provides that such a covenant “shall not take effect until the President certifies that remedial action has been completed in accordance with the requirements of this chapter____” However, our reading of the statute in light of this particular consent decree indicates that the covenant not to sue is valid as proposed. As noted previously, one of the principal reasons Congress expressly permitted the President to enter into consent decrees was the desire to encourage settlements between EPA and PRPs. Such settlements increase the likelihood that the settling defendants, rather than the federal government, will bear the cost of cleaning up hazardous waste sites. Covenants not to sue are one incentive which CERCLA allows the government to offer to the defendants to encourage such settlements. As long as those covenants comply with the statutory requirements of CERCLA, we will uphold them. CERCLA permits the United States to enter into covenants not to sue with settling defendants if such covenants are in the public interest. 42 U.S.C. § 9622(f)(1). The statute lists several factors to consider in the evaluation of a covenant not to sue: (A) The effectiveness and reliability of the remedy, in light of the other alternative remedies considered for the facility concerned; (B) The nature of the risks remaining at the facility; (C) The extent to which performance standards are included in the order or decree; (D) The extent to which the response action provides a complete remedy for the facility," }, { "docid": "2727507", "title": "", "text": "United States for any response costs other than those paid hereunder, including without limitation, any response costs incurred prior to the entry of this Consent Decree. Consent Decree ¶ 64. Most importantly, ¶ 65 specifically reserves the Government the right to proceed against the settling defendants during or after completion of the work at Metamora or to seek an order compelling them to perform additional response work if previously unknown conditions are discovered indicating that the “the remedial action is not protective of human health and the environment; ...” Thus, it is readily apparent that the Government has not relinquished its rights by entering into the decree in a haphazard or unreasonable fashion. Rather, the Government has reserved itself considerable rights to ensure that the goals of cleaning the site will be accomplished. For these reasons, the Court finds that the “decree is carefully structured so as to ensure the protection of human health and the environment, ...” Akzo, 949 F.2d at 1437, and consistent with the requirements of 42 U.S.C. §§ 9621 and 9622. The Court finds the Consent Decree is reasonable. C. Consistent With the Goals of CERCLA ¶77 states that the United States finds that the work performed under the Consent Decree is consistent with CERCLA and the NCP. The Court must decide whether this finding is warranted. All remedial action at the Site must meet all substantive federal and state environmental requirements. Plaintiffs Motion, Attachment A at 21-22 (Response to Comment #33). The Consent Decree provides for a cleanup of the Site by PRPs at the expense of the Defendants, thereby preserving the Superfund for use at other sites. The remedy was selected in accordance with CERCLA’s procedural requirements. The settlement also furthers the public policy favoring voluntary settlement without expensive litigation. Hundreds of pages of comments were submitted suggesting that CERCLA was violated by the adoption of the Consent Decree. Some of these comments have already been addressed. The Court believes that a discussion of two more of them is warranted in this section of the opinion. The De Minimis PRPs have not entered into" }, { "docid": "14493356", "title": "", "text": "omitted). If a party subject to a consent decree could simply repackage its § 113(f) claim for contribution as one for recovery under § 107(a), then the structure of CERCLA remedies would be completely undermined. For example, parties could circumvent the different statutes of limitations that attach to § 113(f) contribution claims and § 107(a) recovery claims. See 42 U.S.C. § 9613(g)(2)-(3). Further, parties, like Solutia & Pharmacia, could thwart the contribution protection afforded to parties that settle their liability with the EPA, like the Settling Defendants. See 42 U.S.C. § 9613(f)(2). This, in turn, would destroy CERCLA’s statutorily-created settlement incentive. Finally, to allow a § 107(a) claim here would allow parties, like Solutia & Pharmacia, to im pose joint and several liability on Defendants, and other similarly situated parties. Defendants would then be barred from asserting any § 113(f) counterclaims, because Solutia & Pharmacia have already entered into a judicially approved settlement with the EPA. See 42 U.S.C. § 9613(f)(2); Agere Sys., 602 F.3d at 228. For these reasons, we agree with our sister circuits that we must deny the availability of a § 107(a) remedy under these circumstances in order to “[t]o ensure the continued vitality of the precise and limited right to contribution.” Morrison Enter., 638 F.3d at 603; accord Niagara Mohawk Power, 596 F.3d at 128 (“[P]roceed[ing] under § 107(a) would ... abrogate the requirements Congress placed on contribution claims under § 113.”). IV. SCOPE OF PARTIAL CONSENT DECREE Solutia & Pharmacia argue that, even if this Court finds § 113(f) to be their exclusive remedy, they do not have a § 113(f) contribution action for the Anniston Lead Site, because they were not obligated to clean the Site under the Partial Consent Decree (PCD). Therefore, they claim entitlement to bring § 107(a) claims for cleanup costs related to the Anniston Lead Site. We review the scope and meaning of a consent decree de novo. Reynolds v. Roberts, 202 F.3d 1303, 1312 (11th Cir. 2000). The PCD incorporates a number of documents and schedules to clarify its purpose and scope. This includes “all work and other" }, { "docid": "20078155", "title": "", "text": "In the event that the government sues nonsett-lors for the remainder, CERCLA provides that the potential liability of nonsettling parties is reduced dollar-for-dollar by the amount of the settlement. 42 U.S.C. § 9613(f)(2). Also, when resolving the PRPs’ claims for contribution against the third-party defendants, this court will “allocate response costs among liable parties using such equitable factors as the court determines are appropriate.” Id. at § 9613(f)(1). Although the potential for disproportionate liability remains for the third-party defendants, this result would be neither unfair nor proscribed by CERCLA. One group of eommenters argues that the decree has the effect of bestowing contribution protection upon the PRPs for future costs whether or not the PRPs pay these costs to the government. These com-menters conclude that should the PRPs fail to pay future costs, and should the government pursue third-party defendants for those unpaid costs, the third-party defendants could not obtain contribution from the defaulting PRPs. This court disagrees with the eommenters’ construction of the scope of contribution protection. Section IX.B. of the decree provides that, “upon receipt by EPA of the payments required by Section V.A.(1) [past response costs] and, if required, Section V.A.(2) [potential PaDER reimbursement], Settling Defendants and Related Persons are entitled to such protection from contribution actions or claims as is provided by CERC-LA Section 113(f)(2), 42 U.S.C. § 9613(f)(2), for the matters set forth in Section VILA.” CERCLA § 113(f)(2) provides that a “person who has resolved its liability to the United States in an administrative or judicially approved settlement shall not be liable for claims for contribution regarding matters addressed in the settlement.” 42 U.S.C. § 9613(f)(2) (emphasis added). Section VILA, of the decree provides that: Except as provided by in Paragraph C below, this Consent decree finally resolves the liability to the United States of Settling Defendants and Related Persons for all costs of response incurred now or in the future in connection with all work at the Site conducted prior to the date of lodging of this Consent Decree, except for costs incurred by the United States after December 8, 1992, for oversight" }, { "docid": "23195691", "title": "", "text": "in ordering Akzo to conduct the emergency clean-up work, an option which, in the dissent’s view, obviates any need for contribution. Post at 773-74. That avenue of relief may be a dead end for Akzo, however. Section 106(b)(2) of CERCLA does permit a person ordered to perform removal work under section 106(a) to petition the government for reimbursement of its costs and to file suit if the request is refused, but in order to recover, the petitioner must show either that it is not liable for response costs under section 107(a) or that the order compelling the work was arbitrary and capricious or otherwise not in accordance with law. 42 U.S.C. §§ 9606(b)(2)(A)-(D), 9613(j)(3); see Kelley v. EPA 15 F.3d 1100, 1103 (D.C.Cir.1994). Akzo cannot make the first showing, because it sent wastes to the Fisher-Calo site and is therefore liable for response costs under section 107(a). 42 U.S.C. § 9607(a)(3). See Complaint ¶ 10. Moreover, nothing in the record before us suggests that the EPA’s 1988 order was arbitrary and capricious or otherwise unlawful, either in the designation of the work to be performed or in the selection of the parties who were to perform it. Thus, even if the sums Akzo spent in complying with the section 106 order were disproportionate to its measure of culpability for the contamination of the site, the statute does not necessarily permit Akzo to recover the excess from the government. Only a suit for contribution against other PRPs offers the concrete prospect of making Akzo whole in this regard. For that reason, we suspect that if we were to bar Akzo from pursuing contribution, parties who found themselves in a similar position in the future would simply exercise the intervention right granted them by section 113(i) and oppose the approval of any consent decree that might be construed to foreclose their right to contribution. See 42 U.S.C. § 9613(i); United States v. Acton Corp., 131 F.R.D. 431 (D.N.J.1990); but see Arizona v. Motorola, Inc., 139 F.R.D. 141, 144-46 (D.Ariz.1991). Thus, we might accomplish no more than to shift the battle to a" }, { "docid": "2727515", "title": "", "text": "for review in the same locations as the administrative record referred to above; Pursuant to Section 117(d) of CERCLA, 42 U.S.C. [§]9617(d), the notice has been published in a major local newspaper of general circulation, and the notice includes an explanation of any significant changes from the proposed remedial action plan contained in the FS and the reasons for such changes; Pursuant to Section 121(d)(1) of CERCLA, 42 U.S.C. § 6921(d)(1), U.S. EPA, and Settling Defendants, (“the Parties”) believe that the remedial action plans adopted by U.S. EPA will attain a degree of cleanup of hazardous substances, pollutants and contaminants released into the environment and of control of further release which at a minimum assures protection of human health and the environment at the Facility; The Parties believe the remedial action plans adopted by U.S. EPA and the attached Scope of Work (“SOW”) as set forth in Appendix 2 will provide a level or standard of control for such hazardous substances, pollu tants, or contaminants' which at least attains legally applicable or relevant and appropriate standards, requirements, criteria, or limitations under Federal environmental law or State environmental or facility citing law in accordance with Section 121(d)(2) of CERCLA, 42 U.S.C. § 9621(d)(2), and that the remedial action plans and SOW are in accordance with Section 121 of CERCLA, 42 U.S.C. § 9621, and with the National Contingency Plan (“NCP”), 40 CFR Part 300; Settling Defendants agree to implement the final remedial action plans adopted by U.S. EPA in the manner described in the SOW as set forth in Appendix 2 to this Consent Decree and incorporated by reference into this Decree, and U.S. EPA has determined that the work required under the. Consent Decree will be done properly by Settling Defendants and that Settling Defendants are qualified to implement the remedial action plans in the manner described in the SOW; and The Parties recognize, and intend to further hereby, the public interest in the expedition of the cleanup of the Facility and in avoiding prolonged and complicated litigation between the Parties; NOW, THEREFORE, it is hereby ■ Ordered, Adjudged and" }, { "docid": "22963801", "title": "", "text": "greater than 10 milligrams per kilogram; (7) Construct and maintain a six-foot chain link fence around the site; (8) Install and maintain a soil flushing system designed to remedy VOC and SVOC contaminated subsurface soil and, if the system proves ineffective, to submit within six months an alternate remedy; and (9) Prepare the soil flushing plan; see details supra. In consideration of the work to be performed and the payments to be made by the settling defendants, the United States agrees in the proposed consent decree not to sue them, with some exceptions, for claims available under sections 106 and 107 of CERCLA and other federal and state environmental laws which are based on facts about the Site and its contamination known to EPA at the time of the entry of the decree. The covenant does contain reopening provisions which would allow EPA to seek further injunctive relief or cost recovery if conditions unknown until after entry of the decree reveal that the remedial action is not protective of human health and the environment. See Consent Decree XVII. C. Proceedings in the District Court and the Amended ROD In September of 1988, EPA filed the proposed consent decree with the U.S. District Court for the Eastern District of Michigan pursuant to 42 U.S.C. § 9622(d)(1)(A). As required by 42 U.S.C. § 9622(d)(2) and 28 C.F.R. § 50.7, notice of the proposed consent decree was published in the Federal Register on September 26, 1988. At the same time, EPA published a three page document entitled Proposed Settlement Plan — Explanation of Significant Differences (“ESD”). The ESD was published to comply with section 9617(c), which requires EPA to explain why a settlement or consent decree to which the agency agrees differs in any significant respect from the final plan or ROD previously issued for a particular site. In this case the ESD explained the basis for the decision to allow defendants to try soil flushing at the Rose Site in conjunction with incineration, when the 1987 ROD had called for soil incineration only. As required by 42 U.S.C. § 9617(a), EPA provided" }, { "docid": "16486453", "title": "", "text": "contrast, the government may not provide parties who are ineligible for de minimis treatment with a covenant not to sue for future liability except under extraordinary circumstances. Id. § 9622(f)(6). Consistent with this, the Major PRP Consent Decree provides the major PRPs with contribution protection, but requires the settling defendants to remain liable for unknown and unanticipated conditions at the sites. In assessing the legality of the proposed settlement, the court must consider Congress’ intentions with respect to the treatment of non-settling parties. It is clear that Congress intended to favor settling parties over those who reject settlement offers, because it extended to settling parties complete protection from contribution actions. Id. §§ 9613(f)(1), 9622(g)(5). Congress also gave the United States the authority to settle with some PRPs and pursue non-settlers for the remainder of the costs of the cleanup. Id. § 9613(f)(2). It is precisely because the plaintiffs have pursued this strategy that the non-settling defendants view the Major PRP Consent Decree as unfair. Non-settling defendants remain subject to strict liability and joint and several liability. This is, however, consistent with CERCLA. 2. Reasonableness Courts have considered several criteria to determine whether a Superfund settlement is “reasonable.” These include: (1) the nature and extent of the hazards at the site; (2) the degree to which the remedy provided for a consent decree will adequately address the hazards present at the site; (3) the possible alternative approaches for remedying the hazards at the site; (4) the extent to which a consent decree furthers the goals of the statutes that form the basis of the litigation; and (5) the extent to which the court’s approval of a consent decree is in the public interest. United States v. Conservation Chemical Co., 628 F.Supp. at 401, relying on Seymour Recycling Corp., 554 F.Supp. at 1339. These criteria reflect the court’s “limited duty” to inquire into the technical aspects of the cleanup program proposed by a consent decree in order to ensure that the proposed settlement adequately addresses environmental and public health concerns. See United States v. Hooker Chemicals & Plastics Corp., 540 F.Supp. 1067," }, { "docid": "16486441", "title": "", "text": "respect to the Plymouth and Nashua sites. More specifically, under this proposed settlement, the settling defendants would perform environmental response work at three sites with an estimated value of $15,940,000, see First Partial Consent Decree § 7, and make payments totaling $18,855,000 to the United States, Massachusetts and New Hampshire. Id. § 6. The settling defendants have also agreed to assume plaintiffs’ costs of overseeing the defendants’ response activities. Id. § 7, ¶[ B. Moreover, an additional $120,000 would be placed in escrow for use if further response actions are needed at the Plymouth site. Id. § 6, ¶ 6. In return, the United States, Massachusetts, and New Hampshire have provided a covenant not to sue these parties, qualified by specific re-opener provisions. Id. § 26. With respect to response costs at the Bridgewater, Plymouth and Londonderry sites, the United States and the States agree not to sue the settling defendants, except if information or site conditions unknown to the United States at the time of settlement indicate that the remedies provided for by the settlement are not adequate to protect public health and the environment. Id. § 26, ¶ B. With respect to the Nashua site, the United States and New Hampshire agree not to sue the settling defendants for response costs, unless plaintiffs spend more than $19,000,000 at that site after January 1, 1988. Id. § 26, ¶& Thus, the total liability of the PRPs who have accepted the Major PRP Consent Decree is still uncertain. These PRPs have agreed to accept the risk that the actual costs of cleanup may be higher than currently estimated. They may also be subject to liability for conditions discovered at these sites in the future which are currently unknown. As indicated earlier, as provided by section 113(f)(2) of CERCLA, 42 U.S.C. § 9613(f)(2), none of the settling parties may be sued for contribution by other PRPs for the subject matters covered by the settlement. First Partial Consent Decree § 27. 3. The De Minimis PRP Consent Decree Beginning prior to filing this action, the plaintiffs offered another opportunity to settle to" }, { "docid": "22963900", "title": "", "text": "liability arising from: (1) hazardous substance removal which fails to comply with the statutory requirements of 42 U.S.C. § 9622(f)(2)(B); (2) natural resource damages; (3) criminal liability; (4) claims based on a failure by the settling defendants to meet the requirements of the consent decree; and (5) liability for violations of federal law which occur during implementation of the remedial action. Additionally, the United States reserves the right in the decree to (1) institute proceedings in a new action or to issue a new order, pursuant to Section 106 of CERCLA, 42 U.S.C. § 9606, seeking to compel the settling defendants to perform any additional remedial action at the Site necessitated by a release from the Site, and (2) institute proceedings in a new action pursuant to Section 107 of CERCLA, 42 U.S.C. § 9607, to seek reimbursement to the United States for its response costs for any additional response action undertaken by EPA under CERCLA at the Site, if: (a) conditions at the Site, previously unknown to the United States, are discovered after the entry of the consent decree, or (b) information is received after entry of the consent decree, and these previously unknown conditions or this new information indicate that the remedial action is not protective of human health and the environment. EPA also reserves the right under the decree to sue any person other than the settling defendants in connection with the Site, which it is in the process of doing. The challenge to the covenant not to sue in this case concerns the two-phase cleanup formula described in the decree. Though the settling defendants’ obligations essentially end upon attainment of Phase I TCLs, the remedial action will continue at the Site using money from the trust fund they are required to establish. The State of Michigan argues that the covenant not to sue, which may be enforceable once Phase I levels are reached, violates the provision in 42 U.S.C. § 9622(f)(3) which prevents such covenants from taking effect before the President certifies that the remedial action has been completed. However, we find that this consent decree" }, { "docid": "2727535", "title": "", "text": "ASSURE PROTECTION OF HUMAN HEALTH AND THE ENVIRONMENT 19. To the extent required by Section 121(c) of CERCLA, 42 U.S.C. § 9621(c), and any applicable regulations,' U.S. EPA shall review the remedial action at the Facility at least every five (5) years after the entry'of' this Consent Decree to assure that human health and the environment are being protected by the remedial action being implemented. If upon such review, U.S.- EPA determines that further response action is appropriate at the Facility in accordance with Section 104 or 106, then, consistent with Section XVIII of this Consent Decree, the U.S. EPA, after providing the State with a reasonable opportunity for review and comment, may take or require such action pursuant to Section 104 or 106. 20. Settling Defendants shall be provided with an opportunity to confer with U.S. EPA on any response action proposed as a result of U.S. EPA’s 5-year review and to submit written comments for the record. The provisions of Section 113(j) of CERCLA, 42 U.S.C. § 9613Q) will govern any judicial review of U.S. EPA’s determination that any such remedial action is necessary or the nature of any such action. IX. QUALITY ASSURANCE 21. Settling Defendants shall use quality assurance, quality control, and chain of custody procedures in accordance with U.S. EPA’s “Interim Guidelines and Specifications For Preparing Quality Assurance Project Plans” (QAM-005/80) and subsequent amendments to such guidelines upon notification to Settling Defendants of such amendments by U.S. EPA. Amended guidelines shall apply only to procedures conducted after such notification. Prior to the commencement of any monitoring project under this Consent Decree, Settling Defendants shall submit Quality Assurance Project Plan(s) (“QAPP”) to U.S. EPA consistent with the SOW and applicable guidelines, in accordance with paras. 13-14 hereof. Validated sampling data generated consistent with the QAPP(s) and reviewed and approved by EPA shall be admissible as evidence, without objection as to admissibility, in any proceeding to enforce this Decree. Each laboratory utilized by Settling Defendants in implementing this Consent Decree shall be subject to' approval by U.S. EPA. Settling Defendants shall assure that U.S. EPA personnel or" }, { "docid": "16486454", "title": "", "text": "liability. This is, however, consistent with CERCLA. 2. Reasonableness Courts have considered several criteria to determine whether a Superfund settlement is “reasonable.” These include: (1) the nature and extent of the hazards at the site; (2) the degree to which the remedy provided for a consent decree will adequately address the hazards present at the site; (3) the possible alternative approaches for remedying the hazards at the site; (4) the extent to which a consent decree furthers the goals of the statutes that form the basis of the litigation; and (5) the extent to which the court’s approval of a consent decree is in the public interest. United States v. Conservation Chemical Co., 628 F.Supp. at 401, relying on Seymour Recycling Corp., 554 F.Supp. at 1339. These criteria reflect the court’s “limited duty” to inquire into the technical aspects of the cleanup program proposed by a consent decree in order to ensure that the proposed settlement adequately addresses environmental and public health concerns. See United States v. Hooker Chemicals & Plastics Corp., 540 F.Supp. 1067, 1072 (W.D.N.Y.1982). Since selection of a remedy involves balancing numerous complex technical factors within EPA’s expertise, Congress provided that the remedy selected by EPA must be upheld unless the agency was arbitrary and capricious in its selection. 42 U.S.C. § 9613(j)(2) (“In considering objections raised in any judicial action under this Act, the court shall uphold the President’s decision in selecting the response action unless the objecting party can demonstrate, on the administrative record, that the decision was arbitrary and capricious or otherwise not in accordance with law.”). The non-settling defendants do not challenge the Major PRP Consent Decree on the grounds that the technical approach it adopts is arbitrary and capricious. To the extent they argue that this Consent Decree does not further CERCLA’s goals, they object to the fairness of its apportionment of costs rather than to any technical defect in the chosen remediation strategies. Nevertheless, the court has considered the reasonableness of these strategies. The technical approach of the Major PRP Consent Decree at each of the sites was selected in accordance" }, { "docid": "20093307", "title": "", "text": "party should bear the cost of harm for which it is legally responsible.” Id. at 87. “Settlement terms must be based upon, and roughly correlated with, some ac ceptable measure of comparative fault, apportioning liability among the settling parties according' to rational ... estimates of how much harm the PRP [Potentially Responsible Party] has done.” Id. The manner in which the government has apportioned liability should be upheld whenever there is a reasonable, good faith basis for it. Id. at 88. Evaluation of the decree’s reasonableness involves many considerations. In a cost recovery settlement, “reasonableness” “depend[s] upon whether the settlement satisfactorily compensates the public....” Id. at 90. Where the cost of remedial measures is uncertain at the time a decree is proposed, the decree should be approved whenever the EPA has used figures which “derive in a sensible way from a plausible interpretation of the record.” Id. Another factor to consider is the relative strength of the parties’ litigation positions. Id. Finally, the settlement must be consistent with the overall objectives of CERCLA. The EPA must exercise its broad settlement authority “with deference to the statute’s overarching principles: accountability, the desirability of an unsullied environment, and promptness of response activities.” Id. at 91. II. Hecla Decree. The Hecla decree constituted a cash settlement of the United States’ claims against Hecla under section 107(a) of CERCLA, 42 U.S.C. § 9607(a), for all matters at the California Gulch Site, except Hecla’s obligations and liability for: (1) investigation and cleanup of the Malta Gulch tailings and areas contaminated by those tailings, and (2) natural resource damages. Congress intended the judiciary to take a “broad view of proposed settlements, leaving highly technical issues and relatively petty inequities to the discourse between parties.” Cannons, 899 F.2d at 85-86. Applying that standard, I conclude that only one specific challenge to the Hecla partial consent decree merits in-depth discussion — whether the contribution protection provision of the partial consent decree, § VILA, bars ASARCO and Res-ASARCO’s cross-claims against Hecla. Apart from that challenge, I conclude, based on the content of the partial consent decree, the comments and" } ]

[ { "docid": "22771552", "title": "", "text": "in part upon this practice in Commissioner v. Smith, 324 U. S. 177, 324 U. S. 695. And in its 1950 Act affording limited tax benefits for “restricted stock option plans” Congress adopted the same kind of standard for measurement of gains. § 130A, Internal Revenue Code of 1939, as amended, 64 Stat. 942. And see § 421, Internal Revenue Code of 1954, 68A Stat. 142. Under these circumstances there is no reason for departing from the Treasury practice. The taxable gain to LoBue should be measured as of the time the options were exercised and not the time they were granted. It is possible that a bona fide delivery of a binding promissory note could mark the completion of the stock purchase and that gain should be measured as of that date. Since neither the Tax Court nor the Court of Appeals passed on this question the judgment is reversed and the case is remanded to the Court of Appeals with instructions to remand the case to the Tax Court for further proceedings. Reversed and remanded. There may be some question as to whether the first option was exercised in 1945 or 1946. See the discussion, infra, as to when the transactions were completed. The Commissioner assessed a deficiency on the basis of $8,680 although the record figures show a difference between option price and market value of $8,230. No explanation for the discrepancy appears in the record. See, e. g., Durkee v. Welch, 49 F. 2d 339; Erskine v. Commissioner, 26 B. T. A. 147; Geeseman v. Commissioner, 38 B. T. A. 258; Evans v. Commissioner, 38 B. T. A. 1406. See also Miller, The Treasury’s Proposal to Tax Employee’s Bargain Purchases, 56 Yale L. J. 706; Note, 64 Yale L. J. 269; 93 Cong. Rec. A4060-A4066; Surrey and Warren, Federal Income Taxation (1955 ed.), 653-674. Robertson v. United States, 343 U. S. 711, 713-714; Bogardus v. Commissioner, 302 U. S. 34. The Tax Court noted “that in practically all such cases as the one before us, both the element of additional compensation and the granting of a" } ]

[ { "docid": "17951341", "title": "", "text": "v. United States, 343 U.S. 711, 714. A gift in the statutory sense, on the other hand, proceeds from a “detached and disinterested generosity,” Commissioner v. LoBue, 351 U.S. 243, 246; “out of affection, respect, admiration, charity or like impulses.” Robertson v. United States, supra, at 714. And in this regard, the most critical consideration, as the Court was agreed in the leading case here, is the transferor’s “intention.” Bogardus v. Commissioner, 302 U.S. 34, 43. “What controls is the intention with which payment, however voluntary, has been made.” [Footnote omitted.] The strike benefits paid by ALPA to the petitioners herein did not proceed from a detached and disinterested generosity or out of charity or like impulses. The benefits paid to the individual pilots were not conditioned upon need, but were paid pursuant to an established schedule ,or formula based upon the recipient’s preceding year’s airline income. Such payments were made in furtherance of the objectives of ALPA, namely, to obtain anticipated economic benefits for all its pilot members. As pointed out hereinabove, there was consideration given by the striking pilots — a minimum requirement for receipt ,of the benefits was that the recipient refrain from flying Southern’s airplanes. It would also seem that ALPA had at least a moral obligation to pay the strike benefits to the petitioners as the result of the action of its board of directors in voting, prior to the strike, to pay such benefits if the strike was carried out. Under the circumstances, we are constrained to conclude that the benefits in question are not excludable from gross income as gifts. We note that in Godwin v. United States, (W.D. Tenn. Dec. 15, 1964) - F. Supp. -, the court directed a verdict that strike benefits received from ALPA by a Southern pilot in connection with this same strike were income rather than gifts. See also Woody v. United States (C.A. 9) 368 F. 2d 668, affirming (D. Oreg.) - F. Supp. -; John N. Hagar, supra; and Halsor v. Lethert, (D. Minn.) 240 F. Supp. 738, in which it was held that under" }, { "docid": "17248242", "title": "", "text": "disappointed, but has no legal claim. As I understand it, these bonuses are, nevertheless, taxed as income. I see no reason why the payments to the plaintiff are not in the same category, for tax purposes. The plaintiff relies heavily, and practically solely, upon the decision of the Supreme Court in Bogardus v. Commissioner, 302 U. S. 34, 58 S.Ct. 61, 82 L.Ed. 32. In that case, in which four justices dissented, the court said, at page 41 of 302 U.S., at page 65 of 58 S.Ct.: “Neither the Unopco company nor any one else was under any obligation, legal or otherwise, to pay any of the recipients, including petitioner, any salary, compensation, or consideration of any kind. Such is the express stipulation of the parties. And most significant is the further stipulated fact that the disbursements were not made or intended to be made for any services rendered or to be rendered or for any consideration given or to be given by any oí said employees * * (Italics in original.) In the instant case, the payments were provided by Congress because it thought that the country was under a heavy moral obligation to the civilian employees for their work on the Panama Canal. The sole and single purpose of the statute was to give them additional compensation for services rendered. The Borgardus case, then, does not sustain the plaintiff’s contention. The case of Old Colony Trust Company v. Commissioner, 279 U.S. 716, at page 730, 49 S. Ct. 499 at page 504, 73 L.Ed. 918, refutes the plaintiff’s contention. The court said: “Nor can it be argued that the payment of the tax in No. 130 was a gift. The payment for services, even though entirely voluntary, was nevertheless compensation within the statute.” (Italics added.) The court cited with approval the decision of the Circuit Court of Appeals for the Fourth Circuit in Noel v. Parrott, 15 F.2d 669, where Judge Parker, in a well reasoned opinion considered the question of the tax-ability of bonuses to employees. This court, in Schumacher v. United States, 55 F.2d 1007, 74" }, { "docid": "22665692", "title": "", "text": "employer making a payment to a retiring employee; a businessman giving something of value to another businessman who has been of advantage to him in his business. In this context, we review the law as established by the prior cases here. The course of decision here makes it plain that the statute does not use the term “gift” in the common-law sense, but in a more colloquial sense. This Court has indicated that a voluntary executed transfer of his property by one to another, without any consideration or compensation therefor, though a common-law gift, is not necessarily a “gift” within the meaning of the statute. For the Court has shown that the mere absence of a legal or moral obligation to make such a payment does not establish that it is a gift. Old Colony Trust Co. v. Commissioner, 279 U. S. 716, 730. And, importantly, if the payment proceeds primarily from “the constraining force of any moral or legal duty,” or from “the incentive of anticipated benefit” of an economic nature, Bogardus v. Commissioner, 302 U. S. 34, 41, it is not a gift. And, conversely, “[w]here the.payment is in return for services rendered, it is irrelevant that the donor derives no economic benefit from it.” Robertson v. United States, 343 U. S. 711, 714. A gift in the statutory sense, on the other hand, proceeds from a “detached and disinterested generosity,” Commissioner v. LoBue, 351 U. S. 243, 246; “out of affection, respect, admiration, charity or like impulses.” Robertson v. United States, supra, at 714. And in this regard, the most critical consideration, as the Court was agreed in the leading case here, is the transferor’s “inten tion.” Bogardus v. Commissioner, 302 U. S. 34, 43. “What controls is the intention with which payment, however voluntary, has been made.” Id., at 45 (dissenting opinion) , The Government says that this “intention” of the transferor cannot mean what the cases on the common-law concept of gift call “donative intent.” With that we are in agreement, for our decisions fully support this. Moreover, the Bogardus case itself makes it plain" }, { "docid": "23212324", "title": "", "text": "gift. ... A gift in the statutory sense, on the other hand, proceeds from a 'detached and disinterested generosity/ . . . ; 'out of affection, respect, admiration, charity or like impulses.’. . .” Commissioner v. Duberstein, ante, at p. 285. I find nothing in this record to indicate that the strike benefit payments by the union to respondent and other striking workers, while they were waging the strike, were made out of any “detached and disinterested generosity,” or “out of affection, respect, admiration, charity or like impulses.” To the contrary, it seems plain enough that those payments were made by the union to enable and encourage respondent and other striking workers to continue the strike which had been called or approved by the union, and were not motivated by benevolence. Those payments were therefore made in furtherance of one of the union's principal economic objectives — the winning of the strike — and hence proceeded primarily from “ 'the incentive of anticipated benefit' of an economic nature” to the union, and from “the constraining force” of the union's promise to assist striking workers in winning the strike. Duberstein, ante, p. 285. Because of the economic advantages to be obtained by the union from winning the strike, the union had a manifest self-interest in financially sustaining the strikers while they carried on its strike. This shows, as a matter of law, that the payments were not made with the donative intent required to constitute “gifts” within the meaning of § 102 (a) and of the Bogardus and Duberstein cases. Wholly apart from the immediate objective which the union sought to achieve by paying these strike benefits, they could qualify as “gifts,” as the Court recognizes, only if they were made, as said in Duberstein, with a “ 'detached and disinterested generosity,' ” and this record shows that it was principally private business purposes, not detached and disinterested generosity, that prompted the union to make the payments in question. To be sure, the International’s Secretary-Treasurer expressed his conclusion at the trial that, in the course of this strike, the International carried" }, { "docid": "14685048", "title": "", "text": "§ 604A et seq. (1973). This “gift” was included as a nontaxable cash source in the government’s schedule. . The jury could have believed that the witnesses gave money to Scott because of his services as a candidate for office or as a public officer. Such payments could arguably constitute income taxable upon receipt. The government did not rely on this latter theory at trial, and its failure to do so operated to Scott’s benefit. We do not rely on this theory, either. The I.R.S. guidelines, however, state that once it is shown that contributions to a political candidate were intended for the unrestricted personal use of the candidate, then the Duberstein principles apply in determining whether the funds are nontaxable “gifts.” William G. Stratton, 54 T.C. 255, 280-81 (1970). Duberstein excludes payments proceeding from a sense of moral or legal duty or from the incentive of anticipated benefit of an economic nature, as well as payments made in return for services rendered, even if the donor derives no economic benefit from the payment. Commissioner v. Duberstein, 363 U.S. at 285, 80 S.Ct. at 1196, supra, citing Old Colony Trust Co. v. Commissioner, 279 U.S. 716, 730, 49 S.Ct. 499, 504, 73 L.Ed. 918 (1929), Bogardus v. Commissioner, 302 U.S. 34, 41, 58 S.Ct. 61, 64, 82 L.Ed. 32 (1937), and Robertson v. United States, 343 U.S. 711, 714, 72 S.Ct. 994, 996, 96 L.Ed. 1237 (1952). It seems therefore arguable, although unnecessary to decide here, that money given a political candidate because he or she is a political candidate, may be income to the candidate upon receipt, if its use is not restricted to campaign purposes. . Defendant’s Exhibit 98 calculated Scott’s adjusted gross income for 1972 as follows: Computation Of Adjusted Gross Income 1/1/72 12/31/72 Net Worth 49.583.30 65.454.12 Increase 15.870.82 Add: Expenditures 28.760.78 Increase in Net Worth and Expenditures 44,631.60 Deduct: Non-Taxable Receipts and Adjustments 12.988.60 Computed Adjusted Gross Income 31,643.00 Reported Adjusted Gross Income 31,643.00 Additional Adjusted Gross Income -0- . The instruction, by its very terms, does not require a preponderance of the evidence, or" }, { "docid": "23212323", "title": "", "text": "assistance from the Union ” (Emphasis added.) It was further stipulated that respondent, who was not a member of the union during the early months of the strike, “received from the International Union” strike benefits totaling $565.54 during the taxable year 1954. It is now established that objective intention of the transferor determines whether transfers constitute “gifts,” within the meaning of § 102 (a). Bogardus v. Commissioner, 302 U. S. 34; Commissioner v. Duberstein, ante, p. 278. In Duberstein, the Court, in attempting to shed additional light on the factors determinative of whether requisite donative intent impelled the transfer, said: “This Court has indicated that a voluntary executed transfer of his property by one to another, without any consideration or compensation therefor, though a common-law gift, is not necessarily a 'gift’ within the meaning of the statute. . . . And, importantly, if the payment proceeds primarily from 'the constraining force of any moral or legal duty/ or from 'the incentive of anticipated benefit' of an economic nature . . . it is not a gift. ... A gift in the statutory sense, on the other hand, proceeds from a 'detached and disinterested generosity/ . . . ; 'out of affection, respect, admiration, charity or like impulses.’. . .” Commissioner v. Duberstein, ante, at p. 285. I find nothing in this record to indicate that the strike benefit payments by the union to respondent and other striking workers, while they were waging the strike, were made out of any “detached and disinterested generosity,” or “out of affection, respect, admiration, charity or like impulses.” To the contrary, it seems plain enough that those payments were made by the union to enable and encourage respondent and other striking workers to continue the strike which had been called or approved by the union, and were not motivated by benevolence. Those payments were therefore made in furtherance of one of the union's principal economic objectives — the winning of the strike — and hence proceeded primarily from “ 'the incentive of anticipated benefit' of an economic nature” to the union, and from “the constraining" }, { "docid": "16235509", "title": "", "text": "1266, 88 L.Ed. 1585. We then are faced with the contention of petitioner that Fleet did not intend to compensate petitioner wherein he relies upon Bogardus v. Commissioner, 302 U.S. 34, 58 S.Ct. 61, 65, 82 L.Ed. 32. In that case there had been a payment of money, designated a ‘gift or honorarium,” by a holding company (Unopco) to a former employee of an operating company (Universal), the parties to the action stipulated that the payment was not made for services, and the Court held that the payment was a gift, not compensation. While that decision unquestionably stands for the principle that intention is the controlling factor in ascertaining whether there has been compensation, petitioner can find little solace in the language of the Court as follows: “ * * * most significant is the further stipulated fact that the disbursements were not made or intended to be made for any services rendered or to be rendered or for any consideration given or to be given by any of said employees * * * to said Unopco Corporation or to any of its stockholders. If the disbursements had been made by the Universal company, or by stockholders of that company still interested in its success and in the maintenance of the good will and loyalty of its employees, there might be ground for the inference that they were payments of additional compensation. * * * There is entirely lacking * * * the incentive of anticipated benefit of any, kind beyond the satisfaction which flows from the performance of a generous act.” 302 U.S. 34, 41, 58 S.Ct. 61, 65, 82 L.Ed. 32. In the case at bar the Tax Court declared that the benefit conferred on petitioner was not a gift by Fleet, and petitioner apparently does not assert there was a gift. At the hearing below Fleet’s testimony was to the effect that the option was given as an inducement to petitioner to enter the employ of the corporation. It is obvious that Fleet, as president and a large stockholder of the corporation, was vitally interested in the" }, { "docid": "8428093", "title": "", "text": "of the cases leads to the conclusion thát, with the exception of Bogardus v. Commissioner, 1937, 302 U.S. 34, 58 S.Ct. 61, 82 L.Ed. 32, the various circuit courts — taking their lead from Old Colony Trust Co. v. Commissioner, 1929, 279 U.S. 716, 49 S.Ct. 499, 73 L.Ed. 918, and some of them even anticipating it— have taken the view that “the payment for services, even though entirely voluntary”, is none the less taxable income. And this is true although the payment be actually denominated a gift, bonus or honorarium. The elements which courts take into account in determining whether separation allowances are to be considered gifts or compensation for past service are usually these: (1) Did the employer have the power to make a gift of the money? (2) If he did not, as is the case with corporations, was the payment approved by the stockholders? (3) Was the amount charged on the books as payment on salary? (4) And was deduction made for the amount so claimed by the employer from his income tax during the taxable year? If the first two questions are answered in the negative and the last two in the affirmative, the payment is not considered a gift. Rather does it conform to the test laid down by Mr. Justice Brandeis in the dissenting opinion in Bogardus v. Commissioner, 302 U.S. 34, 45, 58 S.Ct. 61, 66, 82 L.Ed. 32: “Has it been made with the intention that services rendered in the past shall be requited more completely, though full acquittance has been given? If so, it bears a tax.” (Italics added). A review of the evidence leads to the conclusion that these conditions exist here. And that the case falls within the rule laid down in Noel v. Parrott, 4 Cir., 1926, 15 F.2d 669; Fisher v. Commissioner, 2 Cir., 1932, 59 F.2d 192; and Botchford v. Commissioner, 9 Cir., 1936, 81 F.2d 914, 110 A.L.R. 281, in which the doctrine laid down in the two cases just cited, and others, is specifically approved by the Circuit Court of Appeals for the" }, { "docid": "17951340", "title": "", "text": "the statute is basically one of fact, stating in part: The course of decision here makes it plain that the statute does not use -the term “gift” in the common-law sense, but in a more colloquial sense. This Court has indicated that a voluntary executed transfer of his property by one to another, without any consideration or compensation therefor, though a common-law gift, is not necessarily a “gift” within the meaning of the statute. For the Court has shown that the mere absence of a legal or moral obligation to make such a payment does not establish that it is a gift. Old Colony Trust Co. v. Commissioner, 279 U.S. 716. And, importantly, if the payment proceeds primarily from “the constraining force of any moral or legal duty,” or from “the incentive of anticipated benefit” of an economic nature, Bogardus v. Commissioner, 302 U.S. 34, 41, it is not a gift. And, conversely, “[w]here the payment is in return for services rendered, it is irrelevant that the donor derives no economic benefit from it.” Robertson v. United States, 343 U.S. 711, 714. A gift in the statutory sense, on the other hand, proceeds from a “detached and disinterested generosity,” Commissioner v. LoBue, 351 U.S. 243, 246; “out of affection, respect, admiration, charity or like impulses.” Robertson v. United States, supra, at 714. And in this regard, the most critical consideration, as the Court was agreed in the leading case here, is the transferor’s “intention.” Bogardus v. Commissioner, 302 U.S. 34, 43. “What controls is the intention with which payment, however voluntary, has been made.” [Footnote omitted.] The strike benefits paid by ALPA to the petitioners herein did not proceed from a detached and disinterested generosity or out of charity or like impulses. The benefits paid to the individual pilots were not conditioned upon need, but were paid pursuant to an established schedule ,or formula based upon the recipient’s preceding year’s airline income. Such payments were made in furtherance of the objectives of ALPA, namely, to obtain anticipated economic benefits for all its pilot members. As pointed out hereinabove, there was" }, { "docid": "21364735", "title": "", "text": "the problem of observing the demeanor of witnesses and apportioning degrees of credibility was nonexistent. The only evidence upon which the decision below could have been based was of a type which this court is in a position to evaluate as ably as the court below. Therefore, we are permitted to review freely the decision which has prompted this appeal. United Nations Korean Reconstruction Agency v. Glass Production Methods, Inc., 291 F.2d 168, 172 (2 Cir. 1961). Even when subjected to the more stringent test of full review, however, the Tax Court’s decision to refuse to label the transfers in question as gifts must be deemed correct. While we have already noted that no hard and fast rule has been established for deciding when a transfer is a gift within the meaning of Section 102(a) of the Code, some guiding principles were laid down by the Supreme Court in Commissioner v. Duber-stein, supra. According to the Duber-stein case, the voluntariness of a transfer is not determinative; what controls is the intent with which the transferor executed the transfer. If a payment of the kind involved in this case proceeds from a “detached and disinterested generosity,” out of “affection, respect, admiration, charity or like impulses,” it is a gift. If, on the other hand, a payment proceeds primarily from “the constraining force of any moral or legal duty,” or constitutes a reward for “services rendered,” or proceeds from “ ‘the incentive of anticipated benefit’ of an economic nature,” the transfer ought not to be deemed a gift. Commissioner v. Duberstein, supra, 363 U.S. at 285, 80 S.Ct. at 1196-1197, 4 L.Ed.2d 1218. We agree with the Tax Court, that the transfers here in question were not gifts, but were, like tips or bonuses, of a compensatory nature and therefore taxable income under the internal revenue laws. If the sums which petitioners, received from the Christmas fund had been received directly from club members, as tips, they would have been payments, in reward for services rendered, and’, hence taxable income. E. g., Roberts v. Commissioner, 176 F.2d 221 (9 Cir. 1949); Andrews" }, { "docid": "17951339", "title": "", "text": "gross income contained in Eisner v. Macomber, supra, “was not -meant to provide a touchstone to all future gross income questions.” In the Glenshaw Class case the Court, in holding that punitive damages received for fraud and antitrust violations constituted gross income, pointed out that there were “undeniable accessions to wealth, clearly realized, and over which the taxpayers have complete dominion.” See also Gen. Investors Co. v. Commissioner, 348 U.S. 434. The petitioners herein, by receiving the strike benefits, realized accessions to wealth which they were free to use as they saw fit, and we think there can be no question that such benefits constituted income within the meaning of the Constitution, and also within the meaning of section 61(a) of the Code unless, as contended by the petitioners, the benefits constituted gifts which are specifically excluded from gross income by the provisions of section 102(a) of the Code. In Commissioner v. Duberstein, 363 U.S. 278, the Supreme Court stated that the question of whether an amount received constitutes a gift within the meaning ,of the statute is basically one of fact, stating in part: The course of decision here makes it plain that the statute does not use -the term “gift” in the common-law sense, but in a more colloquial sense. This Court has indicated that a voluntary executed transfer of his property by one to another, without any consideration or compensation therefor, though a common-law gift, is not necessarily a “gift” within the meaning of the statute. For the Court has shown that the mere absence of a legal or moral obligation to make such a payment does not establish that it is a gift. Old Colony Trust Co. v. Commissioner, 279 U.S. 716. And, importantly, if the payment proceeds primarily from “the constraining force of any moral or legal duty,” or from “the incentive of anticipated benefit” of an economic nature, Bogardus v. Commissioner, 302 U.S. 34, 41, it is not a gift. And, conversely, “[w]here the payment is in return for services rendered, it is irrelevant that the donor derives no economic benefit from it.” Robertson" }, { "docid": "15156735", "title": "", "text": "is the transferor’s “intention.” Bogardus v. Commissioner, 302 U.S. 34, 43 [58 S.Ct. 61, 65, 82 L.Ed. 32], “What controls is the intention with which payment, however voluntary, has been made.” Id., 302 U.S. at page 45 [58 S.Ct. 61 at page 66, 82 L.Ed. at page 39] (dissenting opinion). ' Id. at 285-86, 80 S.Ct. at 1196, 4 L.Ed. at 1224-25 (footnotes omitted). II. Finding Number 18 Is A Conclusion of Law. The position of the taxpayer is simple. The above findings conform to the meaning of gifts as used in section 102 of the Code. Duberstein further teaches, the taxpayer asserts, that whether a receipt qualified as a non-taxable gift is “basically one of fact,” id. at 290, 80 S.Ct. at 1199, 4 L.Ed.2d at 1228 and appellate review of such findings is restricted to determining whether they are clearly erroneous. Because none of the recited findings are clearly erroneous, concludes the taxpayer, the judgment of the trial court must be affirmed. We could not escape this logic were we prepared to accept as a “finding of fact” the trial court’s finding number 18. We reject the trial court’s characterization. The conclusion that tokes “are the result of detached and disinterested generosity” on the part of those patrons who engage in the practice of toking is a conclusion of law, not a finding of fact. Finding number 17, on the other hand, which establishes that tokes are given as the result of impulsive generosity or superstition on the part of the players is a finding of fact to which we are bound unless it is “clearly erroneous” which it is not. The distinction is between a finding of the dominant reason that explains the player’s action in making the transfer and the determination that such dominant reason requires treatment of the receipt as a gift. Finding number 17 is addressed to the former while number 18 the latter. A finding regarding the basic facts, i. e., the circumstances and setting within which tokes are paid, and the dominant reason for such payments are findings of fact, our review" }, { "docid": "15156733", "title": "", "text": "the part of players, and not as a form of compensation for services. 18. Tokes are the result of detached and disinterested generosity on the part of a small number of patrons. These two findings, together with the others set out above, bear the unmistakable imprint of Commissioner v. Duberstein, 363 U.S. 278, 80 S.Ct. 1190, 4 L.Ed.2d 1218 (1959), particularly that portion of the opinion which reads as follows: The course of decision here makes it plain that the statute does not use the term “gift” in the common-law sense, but in a more colloquial sense. This Court has indicated that a voluntary executed transfer of his property by one to another, without any consideration or compensation therefor, though a common-law gift, is not necessarily a “gift” within the meaning of the statute. For the Court has shown that the mere absence of a legal or moral obligation to make such a payment does not establish that it is a gift. Old Colony Trust Co. v. Commissioner, 279 U.S. 716, 730 [49 S.Ct. 499, 504, 73 L.Ed. 918, 928]. And, importantly, if the payment proceeds primarily from “the constraining force of any moral or legal duty,” or from “the incentive of anticipated benefit” of an economic nature, Bogardus v. Commissioner, 302 U.S. 34, 41 [58 S.Ct. 61, 65, 82 L.Ed. 32, 37], it is not a gift. And, conversely, “[w]here the payment is in return for services rendered, it is irrelevant that the donor derives no economic benefit from it.” Robertson v. United States, 343 U.S. 711, 714 [72 S.Ct. 994, 996, 96 L.Ed. 1237, 1240]. A gift in the statutory sense, on the other hand, proceeds from a “detached and disinterested generosity,” Commissioner of Internal Revenue v. LoBue, 351 U.S. 243, 246 [76 S.Ct. 800, 803, 100 L.Ed. 1142, 1147]; “out of affection, respect, admiration, charity or like impulses.” Robertson v. United States, supra, 343 U.S. at page 714 [72 S.Ct. 904 at page 996, 96 L.Ed. at page 1240]. And in this regard, the most critical consideration, as the Court was agreed in the leading case here," }, { "docid": "22665693", "title": "", "text": "302 U. S. 34, 41, it is not a gift. And, conversely, “[w]here the.payment is in return for services rendered, it is irrelevant that the donor derives no economic benefit from it.” Robertson v. United States, 343 U. S. 711, 714. A gift in the statutory sense, on the other hand, proceeds from a “detached and disinterested generosity,” Commissioner v. LoBue, 351 U. S. 243, 246; “out of affection, respect, admiration, charity or like impulses.” Robertson v. United States, supra, at 714. And in this regard, the most critical consideration, as the Court was agreed in the leading case here, is the transferor’s “inten tion.” Bogardus v. Commissioner, 302 U. S. 34, 43. “What controls is the intention with which payment, however voluntary, has been made.” Id., at 45 (dissenting opinion) , The Government says that this “intention” of the transferor cannot mean what the cases on the common-law concept of gift call “donative intent.” With that we are in agreement, for our decisions fully support this. Moreover, the Bogardus case itself makes it plain that the donor’s characterization of his action is not determinative — that there must be an objective inquiry as to whether what is called a gift amounts to it in reality. 302 U. S., at 40. It scarcely needs adding that the parties’ expectations or hopes as to the tax treatment of their conduct in themselves have nothing to do with the matter. It is suggested that the Bogardus criterion would be more apt if rephrased in terms of “motive” rather than “intention.” We must confess to some skepticism as to whether such a verbal mutation would be of any practical consequence. We take it that the proper criterion, established by decision here, is one that inquires what the basic reason for his conduct was in fact — the dominant reason that explains his action in making the transfer. Further than that we do not think it profitable to go. Second. The Government’s proposed “test,” while apparently simple and precise in its formulation, depends frankly on a set of “principles” or “presumptions” derived from the" }, { "docid": "14685049", "title": "", "text": "v. Duberstein, 363 U.S. at 285, 80 S.Ct. at 1196, supra, citing Old Colony Trust Co. v. Commissioner, 279 U.S. 716, 730, 49 S.Ct. 499, 504, 73 L.Ed. 918 (1929), Bogardus v. Commissioner, 302 U.S. 34, 41, 58 S.Ct. 61, 64, 82 L.Ed. 32 (1937), and Robertson v. United States, 343 U.S. 711, 714, 72 S.Ct. 994, 996, 96 L.Ed. 1237 (1952). It seems therefore arguable, although unnecessary to decide here, that money given a political candidate because he or she is a political candidate, may be income to the candidate upon receipt, if its use is not restricted to campaign purposes. . Defendant’s Exhibit 98 calculated Scott’s adjusted gross income for 1972 as follows: Computation Of Adjusted Gross Income 1/1/72 12/31/72 Net Worth 49.583.30 65.454.12 Increase 15.870.82 Add: Expenditures 28.760.78 Increase in Net Worth and Expenditures 44,631.60 Deduct: Non-Taxable Receipts and Adjustments 12.988.60 Computed Adjusted Gross Income 31,643.00 Reported Adjusted Gross Income 31,643.00 Additional Adjusted Gross Income -0- . The instruction, by its very terms, does not require a preponderance of the evidence, or any other measure of evidence before it is rebutted and drops out of consideration. We therefore conclude that no reasonable juror could have understood this instruction as requiring Scott to prove by “some quantum of proof which may well have been considerably greater than ‘some’ evidence” that the contributions were not for political purposes. . IRS Rev.Proc. 68-19 is incorporated by reference into Rev.Rul. 71-449, 1971-2 C.B. 77, which in turn is clarified in Rev.Rul. 74-22, 1974-1 C.B. 16. . In Stratton the court stated: The line between an outright gift and a campaign contribution is a very thin line. Nevertheless, the IRS in Rev.Proc. 68-19, supra, recognizes that a political candidate may receive outright gifts excludable from gross income under section 102(a), I.R.C.1954. Section 5 of Rev.Proc. 68-19 provides: The Service will presume in the absence of evidence to the contrary that contributions to a political candidate are political funds which are not intended for the unrestricted personal use of such recipient. If it can be shown that the funds were intended for the" }, { "docid": "20193622", "title": "", "text": "fair market value of the furniture was $11,856, and that petitioner’s taxable income for 1976 should be increased by that amount. Petitioners correctly assert that the most critical consideration in determining whether a transfer is a gift for Federal income tax purposes is the transferor’s intention. Commissioner v. Duberstein, 363 U.S. 278, 285 (1960), citing Bogardus v. Commissioner, 302 U.S. 34, 43 (1937). Bogardus \"makes it plain that the donor’s characterization of his action is not determinative — that there must be an objective inquiry as to whether what is called a gift amounts to it in reality.” Commissioner v. Duberstein, supra at 286, citing Bogardus v. Commissioner, supra at 40. Determination as to whether a transfer amounts to a gift must be reached on consideration of all the factors, and the proper criterion is the basic reason for the transferors conduct — \"the dominant reason that explains his action in making the transfer.” Commissioner v. Duberstein, supra at 286. A gift for Federal income tax purposes proceeds from a \"detached and disinterested generosity.” Commissioner v. LoBue, 351 U.S. 243, 246 (1956). Petitioners argue that because Ralph Neely never received a Form W-2 or Form 1099 regarding the furniture, it is therefore undisputed that Esmark treated the furniture as a gift. We disagree. The nonreceipt of such a form is far from determinative. The Polacek memo is similarly inconclusive. The only evidence it offers is the clause, \"He is given his furniture.” But, as noted above, a donor’s characterization of his action is not determinative. Furthermore, it is not clear that the language quoted from the memo was intended to characterize the transfer as a gift at all. The sentence following it discusses \"consulting fees” which were to be paid to Neely for a period after termination and which were undisputedly taxable income. It could be inferred from the language of the memo that Polacek considered the payment of the \"consulting fees” and the \"gift” of the furniture to be similar elements in Neely’s termination arrangement. Neely’s testimony regarding the circumstances surrounding the \"gift” is also unpersuasive. Accordingly, we find" }, { "docid": "7727078", "title": "", "text": "not a model of clarity, but she was quite specific regarding petitioner’s failure to account for his expenditure of National Engineering’s money and his failure to deliver the silver for which she and her husband had given him $1,000. In regard to the boat, the Supreme Court has clearly articulated the standard by which to judge whether an item is a gift or income. In Commissioner of Internal Revenue v. LoBue, 351 U.S. 243, 248, 76 S.Ct. 800, 803, 100 L.Ed. 1142, 1148 (1956), the Court determined that the taxpayer must show that a transfer of property is out of “detached and disinterested generosity” in order to be classified as a gift. The Commissioner determined that Potito received the $2500 item in return for services he rendered as minister of the church, here the critical test was the parishioners’ intention. Bogardus v. Commissioner of Internal Revenue, 302 U.S. 34, 43, 58 S.Ct. 61, 82 L.Ed. 32 (1937). Other than his own contentions, petitioner introduced absolutely no evidence of that intention. Therefore, we do not appraise the Tax Court’s legal determination that this property constituted income in the same manner as the church’s cash receipts as being wrong. Among his complaints petitioner alleges that the Tax Court erroneously found that all expenses listed on his return were attributable to Continental Engineering and that he mailed his newspaper at bulk rate rather than first class. As to the first, it is irrelevant to which enterprise the expenses were attributable as long as the taxpayer was allowed those expenses which he was able to substantiate. As to the latter, whether petitioner paid a higher or lower postal rate and is entitled to a greater or smaller deduction is dependent upon what his records verify. In the words of the trial judge, the records “contain duplicate checks or vouchers in the same or different categories of expenses, documents reflecting personal or capital expenditures and were generally incomprehensible”. Potito claims that at least a partial reason for the poor quality of his documentation is that some of his records were lost in a break-in in" }, { "docid": "15156734", "title": "", "text": "504, 73 L.Ed. 918, 928]. And, importantly, if the payment proceeds primarily from “the constraining force of any moral or legal duty,” or from “the incentive of anticipated benefit” of an economic nature, Bogardus v. Commissioner, 302 U.S. 34, 41 [58 S.Ct. 61, 65, 82 L.Ed. 32, 37], it is not a gift. And, conversely, “[w]here the payment is in return for services rendered, it is irrelevant that the donor derives no economic benefit from it.” Robertson v. United States, 343 U.S. 711, 714 [72 S.Ct. 994, 996, 96 L.Ed. 1237, 1240]. A gift in the statutory sense, on the other hand, proceeds from a “detached and disinterested generosity,” Commissioner of Internal Revenue v. LoBue, 351 U.S. 243, 246 [76 S.Ct. 800, 803, 100 L.Ed. 1142, 1147]; “out of affection, respect, admiration, charity or like impulses.” Robertson v. United States, supra, 343 U.S. at page 714 [72 S.Ct. 904 at page 996, 96 L.Ed. at page 1240]. And in this regard, the most critical consideration, as the Court was agreed in the leading case here, is the transferor’s “intention.” Bogardus v. Commissioner, 302 U.S. 34, 43 [58 S.Ct. 61, 65, 82 L.Ed. 32], “What controls is the intention with which payment, however voluntary, has been made.” Id., 302 U.S. at page 45 [58 S.Ct. 61 at page 66, 82 L.Ed. at page 39] (dissenting opinion). ' Id. at 285-86, 80 S.Ct. at 1196, 4 L.Ed. at 1224-25 (footnotes omitted). II. Finding Number 18 Is A Conclusion of Law. The position of the taxpayer is simple. The above findings conform to the meaning of gifts as used in section 102 of the Code. Duberstein further teaches, the taxpayer asserts, that whether a receipt qualified as a non-taxable gift is “basically one of fact,” id. at 290, 80 S.Ct. at 1199, 4 L.Ed.2d at 1228 and appellate review of such findings is restricted to determining whether they are clearly erroneous. Because none of the recited findings are clearly erroneous, concludes the taxpayer, the judgment of the trial court must be affirmed. We could not escape this logic were we prepared to accept" }, { "docid": "11438768", "title": "", "text": "proper force to each, confirm us in our conclusion that primary weight in this area must be given to the conclusions of the trier of fact. Duberstein, 363 U.S. at 289, 80 S.Ct. 1190. Thus, a payee’s having performed contemporaneous services for the payor might be significant to the gift-compensation determination, but it is just one of “the totality of the facts” that must be considered. Duberstein, 363 U.S. at 289, 80 S.Ct. 1190. When the payment “proceeds from a detached and disinterested generosity, ... out of affection, respect, admiration, charity or like impulses” toward the payee, it is a gift for federal tax purposes. Id. at 285, 80 S.Ct. 1190 (internal quotations omitted). The Court stressed that “the most critical consideration ... is the trans-feror’s ‘intention.’ ” Id. at 285-86, 80 S.Ct. 1190 (quoting Bogardus v. Comm’r, 302 U.S. 34, 43, 58 S.Ct. 61, 82 L.Ed. 32 (1937)). Thus, in making the gift-compensation determination, “the proper criterion ... is one that inquires what the basic reason for [the payor’s] conduct was in fact—the dominant reason that explains his action in making the transfer.” Id. at 286, 80 S.Ct. 1190. The district court properly applied Duberstein in concluding that the Contested Payments were gifts, not compensation. It was far from clearly erroneous for the court to find that Mr. Powell’s “dominant reason” for making the payments was the “affection, respect, admiration, charity or like impulses” he felt toward Young. Duberstein, 363 U.S. at 285-86, 80 S.Ct. 1190. Indeed, a plethora of facts support the court’s determination. First, Mr. Powell was a generous person in general, and he felt fatherly affection for Young in particular. Indeed, he expressed and acted on the basis of sincere concerns about her future welfare. In addition, he had a longstanding practice of periodically making substantial gifts to Young in addition to other members of his family. Moreover, he made clear, contemporaneous expressions of intention—both oral and written—that the Contested Payments were gifts. And perhaps most significant of all, he subsequently filed gift tax returns, reporting the payments as gifts. All of these facts support the" }, { "docid": "11438767", "title": "", "text": "gifts or income, as those terms are used in the Internal Revenue Code. Poyner, 301 F.2d at 289-90. B. Section 102(a) of the Internal Revenue Code excludes from a taxpayer’s gross income “the value of property acquired by gift.” In Duberstein, the Supreme Court observed that the term “gift” in § 102 is used in a “colloquial sense,” not “in the common-law sense,” and it declined to establish a bright-line test for distinguishing gifts from compensation payments under the Code. 363 U.S. at 284-85, 80 S.Ct. 1190. Instead, the Court stated that the gift-compensation determination “must be based ultimately on the application of the fact-finding tribunal’s experience with the mainsprings of human conduct to the totality of the facts of each case.” Id. at 289, 80 S.Ct. 1190. See also Poyner, 301 F.2d at 289. The Court emphasized that [t]he nontechnical nature of the statutory standard, the close relationship of it to the data of practical human experience, and the multiplicity of relevant factual elements, with their various combinations, creating the necessity of ascribing the proper force to each, confirm us in our conclusion that primary weight in this area must be given to the conclusions of the trier of fact. Duberstein, 363 U.S. at 289, 80 S.Ct. 1190. Thus, a payee’s having performed contemporaneous services for the payor might be significant to the gift-compensation determination, but it is just one of “the totality of the facts” that must be considered. Duberstein, 363 U.S. at 289, 80 S.Ct. 1190. When the payment “proceeds from a detached and disinterested generosity, ... out of affection, respect, admiration, charity or like impulses” toward the payee, it is a gift for federal tax purposes. Id. at 285, 80 S.Ct. 1190 (internal quotations omitted). The Court stressed that “the most critical consideration ... is the trans-feror’s ‘intention.’ ” Id. at 285-86, 80 S.Ct. 1190 (quoting Bogardus v. Comm’r, 302 U.S. 34, 43, 58 S.Ct. 61, 82 L.Ed. 32 (1937)). Thus, in making the gift-compensation determination, “the proper criterion ... is one that inquires what the basic reason for [the payor’s] conduct was in fact—the dominant" } ]

[ { "docid": "14948003", "title": "", "text": "the corporate note, should be treated differently— that is, the note should be fully enforced —because otherwise shareholders will insist on cash in exchange for their resale of shares to the corporation, and this will hinder such transactions. Petitioners’ argument has some merit but comes at a time when opposing precedent is too strong. Both Mathews Construction and Goodman were recently cited with approval in Strobel v. Estate of W. H. Butler, 402 F.2d 362 (9th Cir., October 21, 1968). And in 47 A.L.R.2d § 9, “Corporation — Acquisition of Own Stock — Transactions Incomplete When Insolvency Occurs,” pp. 774-775, it is stated : The transaction must be completed while the corporation remains solvent. The rule is general that even if the corporation was solvent when the transaction was entered into, if the transaction is still executory when the company becomes insolvent it cannot be enforced as against the rights of creditors then existing. This rule applies in two situations, (1) where the stockholder seeks to enforce a contract by the corporation to purchase his stock, and (2) where the corporation has purchased and received the stock and the stockholder later seeks to enforce an obligation given him by the company for the price. In conclusion, § 1707(c) requires a finding that the corporation’s obligation on the notes is now unenforceable. II THE TRUSTEE’S COUNTERCLAIM FOR AMOUNTS ALREADY PAID TO PETITIONERS UNDER THE STOCK PURCHASE TRANSACTION — CAL.CORP.CODE, § 1715. A. JURISDICTION. The trustee’s counterclaim falls within the scope of Rule 13 of the Fed eral Rules of Civil Procedure as a compulsory counterclaim since it “arises out of the transaction or occurrence that is the subject matter of the opposing party’s claim”, and these rules are expressly made applicable to bankruptcy proceedings by General Bankruptcy Order 37. B. THE TRUSTEE’S STANDING. Bankruptcy Act § 70a(5) provides: a. The trustee of the estate of a bankrupt * * * shall * * * be vested by operation of law with the title of the bankrupt as of the date of the filing of the petition initiating a proceeding under this" } ]

[ { "docid": "2361185", "title": "", "text": "imposing liability upon stockholders and directors for redemptions made when the corporation is insolvent or which render the corporation insolvent. The statute imposing liability upon stockholders impliedly grants a defense against payment of redemption debt if the statute’s insolvency test is not met. It reads in pertinent part: Stockholders to whom a corporation makes any distribution, whether by way of dividend, repurchase or redemption of stock, or otherwise, except a distribution of stock of the corporation, if the corporation is, or is thereby rendered insolvent shall be hable to the corporation for the amount of such distribution made, or for the amount of such distribution which exceeds that which could have been made without rendering the corporation insolvent, but in either event, only to the extent of the amount paid or distributed to them respectively. ... Mass.Gen.L. ch. 156B, § 45. The statute imposing liability upon directors is similar. It provides: If the corporation is insolvent or is rendered insolvent by any such distribution [whether by way of a dividend, repurchase or redemption of stock, or otherwise, except a distribution of stock of the corporation] ... the directors who voted to authorize such distribution shall be jointly and severally liable to the corporation for the amount of such distribution made when the corporation is insolvent, or for the amount of such distribution which exceeds that which could have been made without rendering the corporation insolvent, but in either event only to the extent such distribution, or such excess, is not repaid to the corporation. In no event shall the directors who authorized any such distribution be liable under this section if such distribution could have been made without ... rendering the corporation insolvent at the time when such distribution was authorized, although subsequent payment of such distribution or any part thereof causes such ... insolvency. Mass.Gen.L. ch. 156B, § 61. The stockholder statute is opaque on whether in a redemption for a promissory note the “distribution” is the note or the payments under it. The statute imposing liability on directors, on the other hand, distinguishes between (i) a “distribution” which" }, { "docid": "4034706", "title": "", "text": "such quarterly dividends after they became cumulative, the deficiency should be made good before any dividend or other distribution should be declared on any other shares. Furthermore, it was set forth that as long as any such preferred shares were outstanding, no dividends should be declared on any other stock unless all past quarterly dividends on the preferred shares should have been paid, and the agreed quarterly dividend thereon should have been declared and funds set aside for the payment thereof; and that no dividends should be declared on other stock if, after the payment thereof, the net current assets of the corporation would be less than the aggregate par value of the outstanding preferred shares. Net current assets were defined as the excess of current assets over current liabilities, the latter including the amount of accrued dividends on preferred shares. The corporation had the option to redeem on any dividend date, the whole or any part of the so-called preferred shares, by paying therefor in cash, the sum of $105 a share and all accrued and unpaid dividends thereon to the date fixed for redemption. No holders of so-called preferred shares were entitled, as a matter of right, to subscribe for or purchase shares of any other class, and no holder of such shares had any voting power or right to receive notice of any meeting of shareholders, unless dividends for four quarterly periods should have been unpaid, in which case, the holders of the preferred shares should be entitled to exercise the total and exclusive voting power of all of the corporation’s shares. Perhaps the most important of the provisions of the so-called preferred stock were as follows: “If any preferred shares shall be outstanding on July 1, 1949, the corporation shall and does hereby agree to redeem the same at their par value plus accrued 'dividends on the next succeeding dividend payment date and on such date the holders thereof, upon presentation and surrender of the certificates, shall be entitled to be paid the par value of such shares plus accrued dividends thereon.” In appealing from the" }, { "docid": "19927532", "title": "", "text": "negligent violation of § 160 or 173 of this title, the directors under whose administration the same may happen shall be jointly and severally liable, at any time within 6 years after paying such unlawful dividend or after such unlawful stock purchase or redemption, to the corporation, and to its creditors in the event of its dissolution or insolvency, to the full amount of the dividend unlawfully paid, or to the full amount unlawfully paid for the purchase or redemption of the corporation’s stock, with interest from the time such liability accrued.(c) Any director against whom a claim is successfully asserted under this section shall be entitled, to the extent of the amount paid by such director as a result of such claim, to be subrogated to the rights of the corporation against stockholders who received the dividend on, or assets for the sale or redemption of, their stock with knowledge of facts indicating that such dividend, stock purchase or redemption was unlawful under this chapter, in proportion to the amounts received by such stockholders respectively. The Trustee has alleged facts that set forth the necessary elements for a claim under § 170 against Rennert — who, so far as the Complaint reflects, was Renco Metals’ sole director during the relevant time period. However, the Trustee further asserts that all of the Defendants — including non-directors and non-shareholders — are liable under § 170, either directly or for aiding and abetting. The Court disagrees. The first step when resolving a dispute as to statutory interpretation is to consider the relevant language itself. Here, the relevant sections of the Delaware General Corporation Law are unambiguous. Section 170 states that the “directors of every corporation ... may declare and pay dividends....” Section 174(a) provides that “[i]n case of any wilful or negligent violation of § 160 or 173 of this title, the directors shall be jointly and severally liable ... to the corporation ....” The Delaware legislature clearly provided that the right to declare dividends and liability for unlawfully issued dividends attached to one group — a corporations directors. However, this does" }, { "docid": "1090455", "title": "", "text": "capitalization. Id. at 982. The court underscored its position by citing cases holding that shares of stock sold back to an insolvent corporation are valueless. See Schafer v. Hammond, 456 F.2d 15, 17-18 (10th Cir.1972); Lytle v. Andrews, 34 F.2d 252, 253-54 (8th Cir. 1929); M.V. Moore & Co. v. Gilmore, 216 F. 99, 100-01 (4th Cir.1914). In light of the above discussion, the Court finds that the Trustee may avoid as a fraudulent conveyance the Debtor’s transfer of $100,000 to Cavatorta and Aponas and is entitled to recover $100,000 from them. Since the Court has found that the Trustee is entitled to recover $100,000 from Ca-vatorta and Aponas on Counts 7 and 9 of his complaint, it is unnecessary for the Court to consider Counts 8 and 10 through which the Trustee seeks the same relief based upon Massachusetts’ version of the Uniform Fraudulent Conveyance Act, Mass.Gen.Laws Ann. ch. 109A, §§ 4, 5 and 6 (West 1958 and Supp.1987). Likewise, an indepth analysis of Count 16, which is predicated upon Mass.Gen.Laws Ann. ch. 156B, § 61 (West 1970 & Supp.1987), is unwarranted since the Trustee through that count also is seeking to hold Cavatorta and Aponas jointly and severally liable for the $100,000 distributed to them by the Debtor in exchange for their stock. Section 61 of the Massachusetts Business Corporation Law (“MBCL”) provides: Directors of a corporation who vote to authorize any distribution by the corporation to one or more of its stockholders, whether by way of a dividend, repurchase or redemption of stock, or otherwise, except a distribution of stock of the corporation, which is in violation of the corporation’s articles of organization shall be jointly and severally liable to the corporation for the amount by which such distribution exceeds that which could have been made without violation of the corporation’s articles of organization, but only to the extent such excess distribution is not repaid to the corporation. If the corporation is insolvent or is rendered insolvent by the making of any such distribution, whether or not in violation of the articles of organization, the directors who" }, { "docid": "23671937", "title": "", "text": "certain cases, (a) In addition to any other liabilities imposed by law upon directors of a corporation, they are liable as follows: (1) The directors of a corporation who vote for or assent to any distribution prohibited by Section 9.10 of this Act shall be jointly and severally liable to the corporation for the amount of such distribution. III.Rev.Stat. ch. 32, § 8.65(a)(1) (1983). . Section 6 provided that a corporation \"shall not purchase, either directly or indirectly, its own shares when its net assets are less than [its stated capital and paid-in surplus].” Ill.Rev. Stat. ch. 32, § 157.6 (1933). Section 41 prohibited a board of directors from declaring a dividend when the corporation is insolvent or would be rendered insolvent by payment of the dividend. Ill.Rev.Stat. ch. 32, § 157.41 (1933). Section 41(a) permitted a corporation, under certain circumstances, to distribute a portion of its assets to its shareholders as a partial liquidating dividend, but prohibited such dividends when the corporation was insolvent. Ill.Rev. Stat. ch. 32, § 157.41(a) (1933). . Fed.R.Civ.P. 19(a) states, in part: (a) Persons to be joined if feasible. 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 the person’s absence complete relief cannot be accorded among those already parties, or (2) the person claims an interest relating to the subject of the action and is so situated that the disposition of the action in the person’s absence may (i) as a practical matter impair or impede the person’s ability to protect that interest or (ii) leave any of the persons already subject to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations by reason of the claimed interest. If the person has not been so joined, the court shall order that the person be made a party." }, { "docid": "4350440", "title": "", "text": "Chapter; provided, however, that if the capital of the corporation shall have been diminished by depreciation in the value of its property, or by losses, or otherwise, to an amount less than the aggregate amount to which the holders of the issued and outstanding stock of all classes having a preference upon the distribution of assets would be entitled upon such distribution, the Directors of such corporation shall not declare and pay out of annual net profits any dividends upon any shares of any classes of its capital stock until such deficiency in its capital assets shall have been repaired. Subject to any restrictions contained in its Certificate of Incorporation, the directors of any corporation engaged in the exploitation of wasting assets may determine the annual net profits derived from the exploitation of such wasting assets without taking into consideration the depletion of such assets resulting from lapse of time or from necessary consumption of such assets incidental to their exploitation. * * * “See. 35. Dividends; How Declared and Paid; Violations of Section; Penalty; Exoneration from Liability: — No corporation created under the provisions of this Chapter, nor the Directors thereof, shall pay dividends upon any shares of the corporation except in accordance with the provisions of this Chapter. Dividends may be paid in cash, in property, or in shares of the capital stock, in the ease of shares with par value at par, and in the case of shares without par value at such price as may be fixed by the Board of Directors. In ease of any willful or negligent violation of the provisions of this Section, the Directors under whose administration the same may happen shall be jointly and severally liable, in an action on the ease, at any time within six years after paying such unlawful dividend, to the corporation and to its creditors, or any of them, in the event of its dissolution or insolvency, to the full amount of the dividend so unlawfully paid, with interest on the same from the time such liability accrued; provided that any Director who may have been" }, { "docid": "6542828", "title": "", "text": "this action, he must be able to demonstrate that the actions of Bernal and Barentine, as they relate to the negotiation and disposition of the checks in question, were substantially inconsistent with the interests of the corporations. However, if the Trustee is successful in his effort to consolidate the individual affairs of the officers with those of the Debtor, there will arise the question of whether or not the activities which were carried out in their own name were, in fact, inconsistent with those of the Debtor. Since the resolution of that question is necessarily dependent upon the disposition of the Trustee’s underlying premise, any adjudication of this action should be postponed until the prior issue is concluded. Accordingly, summary judgment must be denied as to this cause of action. C The Trustee has also asserted a cause of action against Bernal and Baren-tine under the provisions of Ohio Revised Code § 1701.95. That statute states in pertinent part: (A) In addition to any other liabilities imposed by law upon directors of a corporation, directors who vote for or assent to: (1) The payment of a dividends, or the making of a distribution of assets to shareholders, or the purchase or redemption of its own shares, contrary in any such case to law or the articles; (3) ... shall be jointly and severally liable to the corporation as follows: in cases under division (A)(1) of this section up to the amount of such dividend, distribution, or other payment ... Under this section, the directors of a corporation are liable to the corporation for any distribution of corporate assets which is not made in accordance with applicable law or the articles of incorporation. In the present case, it appears that the Trustee is asserting an action under this section based upon Bernal’s and Barentine’s diversion of checks into Barentine’s personal account. A review of this cause finds that the Trustee, in order to impose liability, will be required to show that Bernal’s and Baren-tine’s use of the checks amounts to a diversion of corporate assets. As has been discussed, it appears" }, { "docid": "19774180", "title": "", "text": "before the court, that motion was deemed moot as the court did not consider the affidavit in its ruling on the summary judgment motions. (J.A. at Tab 10, p. 5 n. 4.) Additionally, the bankruptcy court needs to make a factual finding whether the payments at issue were made on account of the guaranty to determine whether they were on account of an antecedent debt. As a result, the February 1, 2007 order denying the trustee’s summary judgment motion is affirmed. B. Whether the sale of Omega’s stock constituted an illegal stock redemption. The trustee asserts that the stock purchase constituted a purchase or redemption by Omega of its own stock while insolvent in violation of Ohio Revised Code § 1701.35(B), which provides: A corporation shall not purchase its own shares except as provided in this section, nor shall a corporation purchase or redeem its own shares if immediately thereafter its assets would be less than its liabilities plus its stated capital, if any, or if the corporation is insolvent, or if there is reasonable ground to believe that by such purchase or redemption it would be rendered insolvent. If a corporation redeems its stock in violation of § 1701.35(B), Ohio Revised Code § 1701.95(D) imposes liability upon a shareholder who knowingly receives any dividend, distribution or payment under certain circumstances. A shareholder who knowingly receives any dividend, distribution, or payment made contrary to law or the articles shall be liable to the corporation for the amount received by that shareholder that is in excess of the amount that could have been paid or distributed without violation of law or the articles. Ohio Rev.Code § 1701.95(D). The bankruptcy court concluded that there was no illegal stock redemption under Ohio law, because the Thompsons acquired ownership and control of Omega as a result of the stock sale in 1999, and that the payments made on the note by Omega, as guarantor, were made for the benefit of the Thompsons. The bankruptcy court further found that even assuming that there was a stock redemption, the trustee did not carry her burden of" }, { "docid": "14782239", "title": "", "text": "Kentucky, under which the corporation was organized, sanctioning or authorizing its members to appropriate any portion of its capital stock, without paying or being liable to pay therefor. On the contrary, the charter implicitly prohibits such a distribution in providing that the directors may determine the times and conditions upon which the stock is to he paid in, and in allowing the company to receive real and household estates, mining rights, etc., in payment for stock; while section 14 of chapter 56 expressly declares that nothing in the act conferring corporate franchises, or permitting the organization of corpora tions themselves, “shall exempt the stockholders of any corporation from individual liability to the amount of the unpaid installments on stock owned by them.” But aside from this provision of the statute, which is nothing more than the legislative recognition of the general principle enforced by courts of equity, it is well settled by the authorities that the old stockholders (Handley and Neely) in the present case, who accepted and held portions of the increased stock, cannot claim exemption from liability thereon, as against creditors, especially those who have dealt with the company in ignorance of the arrangement that such stock was treated and received as fully paid up, when such was not the fact. A corporation cannot legally give away its capital stock, nor distribute the same, among shareholders without consideration. “The rule that sh-ires cannot lawfully be declared paid up, unless their par value has been contributed .to the company’s capital, rests upon the equities existing between the shareholders forming the Company, and upon the equitable rights of outside parties, who deal with the company in the faith of the capital indicated by its charter.” 1 Mor. Priv. Corp. § 427. “It is manifestly incompetent for the corporate management to agree with a shareholder that shares, issued to him for a nominal consideration, shall be treated as fully paid up.” Tayl. Corp. § 545, and cases cited. The wholesome and well-established doctrine that the capital stock of a corporation is a trust fund for the payment of corporate debts is" }, { "docid": "8392227", "title": "", "text": "Ridge Inn, supra, and this case, stockholders sold their shares of stock to an individual for an agreed amount. Part cash was paid and the balance was paid in each case by a chattel mortgage from the corporation. Section 58 of the New York Stock Corporation Law, Consol.Laws, c. 59, states as follows: “No stock corporation shall declare or pay any dividend which shall impair its capital, nor while its capital is impaired, nor shall any such corporation declare or pay any dividend or make any distribution of assets to any of its stockholders, whether upon a reduction of the number or par value of its shares or of its capital, unless the value of its assets remaining after the payment of such dividend, or after such distribution of assets, as the case may be, shall be at least equal to the aggregate amount of its debts and liabilities, including capital. In case any such dividend shall be paid, or any such distribution of assets made, the directors in whose administration the same shall have been declared or made, except those (1) who may have caused their dissent therefrom to be entered upon the minutes of the meetings of directors at the time or (2) who having been absent when such action was taken may have communicated in writing their dissent to the secretary or caused their dissent to be entered on the minutes within a reasonable time after learning of such action, or (3) who affirmatively show that they had reasonable grounds to believe, and did believe, that such dividend or distribution would not impair the capital of such corporation, shall be liable jointly and severally to such corporation and to the creditors thereof to the full amount of any loss sustained by such corporation or by its creditors respectively by reason of such dividend or distribution.” The Circuit Court of Appeals in Re Bay Ridge Inn, Inc., supra, stated that “The question on which the case turns is whether Section 58 applies”. After citing the case of Brooklyn Trust Company v. Jesper, 248 App.Div. 896, 290 N.Y.S. 642," }, { "docid": "22986341", "title": "", "text": "creditors. The United States and the Trustee have asserted two additional theories of liability against the Gillens and Clevelands. The first theory is that the payment of the stock purchase price can be likened to an improperly declared dividend or distribution by Raymond Colliery to its shareholders. The second theory is that the transfer of the stock purchase funds was a fraudulent conveyance under the Pennsylvania Fraudulent Conveyances Act. As to the argument that the payment of the stock purchase price should be likened to an improperly declared dividend or distribution, the directors of the corporation who declared payment of the same can be held liable to creditors of the corporation injured thereby. West v. Hotel Pennsylvania, 148 Pa.Super. 373, 25 A.2d 593, 595 (Pa.Super.1942). The director who allegedly declared the improper dividend or distribution was James Durkin, Sr. and he was put in the position to make the distribution by the Gillens and Clevelands as part of the whole transaction. Because the Raymond Group’s capital was impaired on November 26, 1973, the declaration of the distribution or dividend was clearly illegal under Pennsylvania law. See Levin v. Pittsburgh United Corp., 330 Pa. 457,199 A. 332 (1938). Therefore, the Gillens and Clevelands can be held accountable for the amount of the dividend or distribution. The fraudulent conveyance theory of liability asserted by the creditors has substantial merit. As developed earlier, a conveyance is fraudulent under § 354 of the Pennsylvania Uniform Fraudulent Conveyances Act if it is made without fair consideration by one who is or was thereby rendered insolvent. A transfer of funds is clearly a conveyance under the Act. 39 Pa.Cons.Stat. § 351; Toff v. Vlahakis, 380 Pa. 512, 112 A.2d 340 (1955). The Raymond Group was insolvent on November 26, 1973. In addition, no plausible argument has been made or indeed could be made that the Raymond Group received fair consideration for the transfer of its assets to the Gillens and Clevelands. We are of the view that those IIT loan proceeds which were funnelled out of the Raymond Group and applied to the purchase price of" }, { "docid": "17871199", "title": "", "text": "this simply resolved issue but also other issues that are irrelevant if the 1954 Act controls this case. We order that each side bear its own costs on appeal. . Under Fed.R.Evid. 201(e), “[a] party is entitled upon timely request to an opportunity to be heard as to the propriety of taking judicial notice and the tenor of the matter noticed.” Any objection to the propriety of our taking notice of the publicly recorded date of reincorporation will be considered in the course of a petition for rehearing based thereon. Any challenge to the accuracy of the noticed information should be addressed to the bankruptcy court, to which we are remanding this case. . We need not decide whether the bankruptcy court and the district court were correct in believing that Washington Plate Glass, if it had not been reincorporated in 1976, would have been governed by the 1901 Code rather than the 1954 Business Corporation Act. See Philip-son, A Review of the New Corporation Law of the District of Columbia, 10 Bus.Law. 24, 28 (Jan.1955) (“the new law is ... not intended and does not purport to repeal the old corporation law”). We also do not decide whether the company, if not governed by § 29-305, could have paid for repurchased shares while insolvent. The 1901 Code neither permits nor forbids a corporation to repurchase its own shares. Thus, to determine whether a corporation may pay for repurchased shares even though insolvent at the time of payment, the lower courts should have looked to common law. See Act of Mar. 3, 1901, § 1, 31 Stat. 1189, 1189 (“The common law ... shall remain in force except in so far as ... inconsistent with ... this code.”). While there are no cases on point in this jurisdiction, the predominant common law rule was that an insolvent corporation had no power to pay for shares purchased when solvent. See e.g., McConnell v. Estate of Butler, 402 F.2d 362, 366 (9th Cir.1968); Robinson v. Wangemann, 75 F.2d 756, 757-58 (5th Cir.1935); Boggs v. Fleming, 66 F.2d 859, 860 (4th Cir.1933); Keith" }, { "docid": "19927531", "title": "", "text": "Renco Group. Section 170(a) provides, in relevant part: The directors of every corporation, subject to any restrictions contained in its certificate of incorporation, may declare and pay dividends upon the shares of its capital stock either (1) out of its surplus, as defined in and computed in accordance with §§ 154 and 244 of this title, or (2) in case there shall be no such surplus, out of its net profits for the fiscal year in which the dividend is declared and/or the preceding fiscal year. By its plain terms, § 170 only addresses the funds from which directors may declare dividends, providing that dividends must be paid from either the corporation’s surplus or its net profits. Liability is not derived from this section itself, but rather from its interplay with accompanying provisions in the Delaware General Corporation Law. Thus, § 173 states that “[n]o corporation shall pay dividends except in accordance with this chapter.” And most critically for the purposes here, § 174 provides, in pertinent part: (a) In case of any wilful or negligent violation of § 160 or 173 of this title, the directors under whose administration the same may happen shall be jointly and severally liable, at any time within 6 years after paying such unlawful dividend or after such unlawful stock purchase or redemption, to the corporation, and to its creditors in the event of its dissolution or insolvency, to the full amount of the dividend unlawfully paid, or to the full amount unlawfully paid for the purchase or redemption of the corporation’s stock, with interest from the time such liability accrued.(c) Any director against whom a claim is successfully asserted under this section shall be entitled, to the extent of the amount paid by such director as a result of such claim, to be subrogated to the rights of the corporation against stockholders who received the dividend on, or assets for the sale or redemption of, their stock with knowledge of facts indicating that such dividend, stock purchase or redemption was unlawful under this chapter, in proportion to the amounts received by such stockholders" }, { "docid": "6542829", "title": "", "text": "who vote for or assent to: (1) The payment of a dividends, or the making of a distribution of assets to shareholders, or the purchase or redemption of its own shares, contrary in any such case to law or the articles; (3) ... shall be jointly and severally liable to the corporation as follows: in cases under division (A)(1) of this section up to the amount of such dividend, distribution, or other payment ... Under this section, the directors of a corporation are liable to the corporation for any distribution of corporate assets which is not made in accordance with applicable law or the articles of incorporation. In the present case, it appears that the Trustee is asserting an action under this section based upon Bernal’s and Barentine’s diversion of checks into Barentine’s personal account. A review of this cause finds that the Trustee, in order to impose liability, will be required to show that Bernal’s and Baren-tine’s use of the checks amounts to a diversion of corporate assets. As has been discussed, it appears that the Trustee may be entitled to judgment relative to the instruments which were specifically made payable to the Debtor, but may not prevail as to those which were made payable to the individuals. However, as has also been previously explained, the availability of judgment under this section is necessarily dependent upon resolution of the Trustee’s underlying premise as to the distinguisha-bility of the parties’ affairs. If it is held that the affairs of the parties should be considered identical, then it cannot necessarily be said that the directors of the Debtor wrongfully diverted corporate assets. Furthermore, there has been nothing presented to the Court which demonstrates that the funds allegedly converted by Ber-nal and Barentine were, in fact, not employed for corporate purposes. Therefore, in light of these questions and the uncertainty as to the Trustee’s underlying theme in this case it must be concluded that summary judgment cannot be granted on this action. D The final cause of action asserted by the Trustee in Count Four is one to avoid a fraudulent conveyance" }, { "docid": "7084729", "title": "", "text": "claim with a derivative claim even though the two claims are some what antagonistic to each other, unless the conflict goes to the very heart of the subject matter of the litigation. 19 Am.Jur.2d, Corporations, § 2424. The Court will next address the various provisions of § 523 under which the Plaintiffs allege that the debt in issue is nondis-chargeable both as to the primary claim of the co-plaintiff Miller personally, and as to the co-plaintiff Miller derivatively on behalf of CLM. Section § 523(a)(4): Fraud or Defalcation while acting in a fiduciary capacity (rhetorical paragraphs 46 through 53 of amended complaint). The assertion of nondischargeability by CLM through the co-Plaintiff Miller in his derivative capacity pursuant to § 523(a)(4) is founded upon the alleged violation by the Defendant of certain Indiana corporation statutes. Indiana Code 23-l-10-2(c) and (d) upon which the Plaintiffs rely provides as follows: Sec. 2. In addition to any other liabilities a director shall be liable in the following circumstances unless he complies with the standard provided in this article for the performance of the duties of directors: sjs sfc sjc ajs (c) A director who votes for or assents to any distribution of assets of a corporation to its shareholders during the liquidation of the corporation without the payment and discharge of, or making adequate provision for, all known debts, obligations, and liabilities of the corporation shall be liable to the corporation, jointly and severally with all other directors so voting or assenting, for the value of such assets which are distributed, to the extent that such debts, obligations and labilities of the corporation are not thereafter paid and discharged. (d) A director who votes for or assents to the declaration of any dividend or other distribution of the assets of a corporation to its shareholders contrary to the provisions of this article or contrary to any restrictions contained in the articles of incorporation shall be liable to the corporation, jointly and severally with all other directors so voting or assenting, for the amount of such dividend which is paid or the value of such" }, { "docid": "7084730", "title": "", "text": "the performance of the duties of directors: sjs sfc sjc ajs (c) A director who votes for or assents to any distribution of assets of a corporation to its shareholders during the liquidation of the corporation without the payment and discharge of, or making adequate provision for, all known debts, obligations, and liabilities of the corporation shall be liable to the corporation, jointly and severally with all other directors so voting or assenting, for the value of such assets which are distributed, to the extent that such debts, obligations and labilities of the corporation are not thereafter paid and discharged. (d) A director who votes for or assents to the declaration of any dividend or other distribution of the assets of a corporation to its shareholders contrary to the provisions of this article or contrary to any restrictions contained in the articles of incorporation shall be liable to the corporation, jointly and severally with all other directors so voting or assenting, for the amount of such dividend which is paid or the value of such assets which are distributed in excess of the amount of such dividend or distribution which could have been paid or distributed without a violation of the provisions of this article or the restrictions in the articles of incorporation. (Emphasis added). It should be carefully noted that the foregoing statutory provisions create a liability in the Director to the corporation upon violation thereof by the Director, and not in the individual stockholders of the corporation or the pledgees of the corporate stock. In addition, the Plaintiffs rely on I.C. 23-l-2-15(f)(l) which provides as follows: (f) The board of directors of a corporation may, from time to time, distribute to its shareholders out of capital surplus of the corporation a portion of its assets, in cash or property, subject to the following provisions: (1) No such distribution shall be made at a time when the corporation is insolvent or when such distribution would render the corporation insolvent. The theory of liability under § 523(a)(4) is thus not that the Agreement itself between the co-Plaintiff Miller personally, and" }, { "docid": "18603521", "title": "", "text": "assets and impairment of capital. 6A W. Fletcher, Cyclopedia of the Law of Corporations §§ 2847-2848 (rev. perm. ed. 1989). See Myers v. C. W. Toles & Co., 287 Mich. 340, 283 N.W. 603 (1939). Indeed, the Revised Model Business Corporation Act and the Michigan Business Corporation Act as revised in 1989 each contain a single provision relating to distributions to shareholders and repurchases of shares by a corporation. Model Business Corp. Act Ann., § 6.40, at 474-75 (Prentice Hall 3d ed. Supp.1990); Michigan Act § 450.1345 (1989). In addition, the definition of “distribution” under the Michigan Act includes distributions by redemption or other acquisition of shares by a corporation. Michigan Act § 450.1106(3) (1989). Hence, the characterization of the exchange of each Old Reveo share for $38.50 as both a repurchase of shares and distribution of cash appears reasonable. Accordingly, it appears that the Merger could be viewed as a “purchase” or “redemption” by Old Reveo of its own stock in violation of section 365. C. Remedies Having concluded it is possible to state claims under the Michigan Act, it is necessary to consider what benefits can be derived from pursuing them. 1. Against Directors Under section 551(l)(a) of the Michigan Act, directors who vote for or concur in a declaration of a dividend or other distribution of assets to shareholders contrary to the Michigan Act without paying or adequately providing for the corporation’s known debts, obligations and liabilities, are jointly and severally liable to the corporation for the benefit of its creditors and shareholders to the extent of any legally recoverable injury, up to the amount of the unlawful payment or distribution. The statute specifically provides, however, that a director is not liable under this section if he complied with section 541 of the Michigan Act. Section 541(1) of the Michigan Act states: A director or an officer shall discharge the duties of that position in good faith and with that degree of diligence, care and skill which an ordinarily prudent person would exercise under similar circumstances in a like position. In discharging his or her duties, a" }, { "docid": "6887885", "title": "", "text": "F.2d 362 (9th Cir.1968). We held in McConnell that claims against a bankruptcy estate that are based on notes issued by a corporation for the purchase of its stock should be classified separately from, and subordinate to, the claims of general unsecured creditors. Id. at 367; accord Robinson v. Wangemann, 75 F.2d 756 (5th Cir.1935); In re Peoples Loan & Investment Co., 316 F.Supp. 13 (W.D.Ark.1970). The APG-NATEC notes were issued in exchange both for APG’s own stock and 6V4% notes. Thus, McConnell controls with respect to at least that portion of the APG-NATEC notes that was issued to repurchase APG’s own stock. The fact that NATEC and not appellants sold the stock to APG is of no consequence. Appellants’ claim against THC’s estate derives from NA-TEC’s holding of APG-NATEC notes. They can have no greater claim than had NATEC. The fact that THC subsequently assumed APG’s liability on the APG-NATEC notes changes nothing. The McConnell rule is based on the recognition that the capital stock of a corporation is actually a trust fund for its creditors. A corporation that acquires by purchase its own stock in fact distributes a portion of its assets to the selling stockholder. Robinson v. Wangemann, 75 F.2d at 757. Because of this fact, when debt securities are issued in exchange for a company’s own stock, “ ‘[i]t is necessary to a recovery that the corporation should be solvent and have sufficient surplus to prevent injury to creditors when the payment is actually made.’” McConnell, 402 F.2d at 366 (quoting Robinson v. Wangemann, 75 F.2d at 757-58) (emphasis in original). Until the APG-NATEC notes were paid, appellants’ claim on the assets of the issuing corporation was deemed to be that of a shareholder, subordinate to general unsecured creditors. The APG/THC reorganization simply substituted the stock of THC for the stock of APG. It did not elevate appellants’ claim to equality with the general unsecured creditors of the surviving corporate entity. That portion of the APG-NATEC notes that APG issued to repurchase its own 67t% notes presents a different question. According to the trustee’s calculations, the" }, { "docid": "23671936", "title": "", "text": "Illinois courts have often looked to Delaware law for guidance in deciding previously undecided corporate law issues. See, e.g., Treco, 749 F.2d at 379; Panter v. Marshall Field & Co., 646 F.2d 271, 293 (7th Cir.), cert. denied 454 U.S. 1092, 102 S.Ct. 658, 70 L.Ed.2d 631 (1981). . Section 9.10 states, in pertinent part: § 9.10. Distributions to shareholders, (a) The board of directors of a corporation may authorize, and the corporation may make, distributions to its shareholders, subject to any restriction in the articles of incorporation and subject also to the limitations of subsection (c) of this Section. (c) No distribution may be made if, after giving it effect: (1) the corporation would be insolvent; or (2) the net assets of the corporation would be less than zero or less than the maximum amount payable at the time of distribution to shareholders having preferential rights in liquidation if the corporation were then to be liquidated. Ill.Rev.Stat. ch. 32, ¶9.10 (1983). . Section 8.65 provides, in pertinent part: § 8.65. Liability of directors in certain cases, (a) In addition to any other liabilities imposed by law upon directors of a corporation, they are liable as follows: (1) The directors of a corporation who vote for or assent to any distribution prohibited by Section 9.10 of this Act shall be jointly and severally liable to the corporation for the amount of such distribution. III.Rev.Stat. ch. 32, § 8.65(a)(1) (1983). . Section 6 provided that a corporation \"shall not purchase, either directly or indirectly, its own shares when its net assets are less than [its stated capital and paid-in surplus].” Ill.Rev. Stat. ch. 32, § 157.6 (1933). Section 41 prohibited a board of directors from declaring a dividend when the corporation is insolvent or would be rendered insolvent by payment of the dividend. Ill.Rev.Stat. ch. 32, § 157.41 (1933). Section 41(a) permitted a corporation, under certain circumstances, to distribute a portion of its assets to its shareholders as a partial liquidating dividend, but prohibited such dividends when the corporation was insolvent. Ill.Rev. Stat. ch. 32, § 157.41(a) (1933). . Fed.R.Civ.P. 19(a)" }, { "docid": "1090456", "title": "", "text": "§ 61 (West 1970 & Supp.1987), is unwarranted since the Trustee through that count also is seeking to hold Cavatorta and Aponas jointly and severally liable for the $100,000 distributed to them by the Debtor in exchange for their stock. Section 61 of the Massachusetts Business Corporation Law (“MBCL”) provides: Directors of a corporation who vote to authorize any distribution by the corporation to one or more of its stockholders, whether by way of a dividend, repurchase or redemption of stock, or otherwise, except a distribution of stock of the corporation, which is in violation of the corporation’s articles of organization shall be jointly and severally liable to the corporation for the amount by which such distribution exceeds that which could have been made without violation of the corporation’s articles of organization, but only to the extent such excess distribution is not repaid to the corporation. If the corporation is insolvent or is rendered insolvent by the making of any such distribution, whether or not in violation of the articles of organization, the directors who voted to authorize such distribution shall be jointly and severally liable to the corporation for the amount of such distribution made when- the corporation is insolvent, or for the amount of such distribution which exceeds that which could have been made without rendering the corporation insolvent, but in either event only to the extent such distribution, or such excess, is not repaid to the corporation. In no event shall the directors who authorized any such distribution be liable under this section if such distribution could have been made without violating the articles of organization or rendering the corporation insolvent at the time when such distribution was authorized, although subsequent payment of such distribution or any part thereof causes such violation or insolvency. Mass.Gen.Laws Ann. ch. 156B, § 61 (West 1970 & Supp.1987). Its basic purpose is “to prevent distributions to stockholders ... which would be prejudicial to creditors of a corporation.” Brigham v. M. & J. Corp., 352 Mass. 674, 681, 227 N.E.2d 915 (1967). Since the Court has found that the Debtor was insolvent" } ]

[ { "docid": "7253322", "title": "", "text": "from considering such compromises, nor does it prevent the debtors from seeking compromise of a nondischarged tax debt from the IRS once the bankruptcy is completed. The IRS further states that debtors’ argument that § 525 is applicable to its actions in this case “stretches Bankruptcy Code Section 525 well beyond its plan language and well beyond any reasonable policy considerations underlying that section.” See Id. at 8-9. It states that an offer in compromise is not comparable to the “license, permit, charter, franchise, or other similar grant” contemplated by § 525, and therefore the policy is not a violation of the literal provisions of § 525. The IRS further states that the policy does not conflict with the “fresh start” objectives of the Bankruptcy Code because its priority claims are nondischargeable under the Bankruptcy Code and are thus excepted from the “fresh start” objectives of the Bankruptcy Code. The IRS asks this Court to refuse to force the IRS to consider debtors’ offer in compromise, and to enter judgment on behalf of the United States. LEGAL AUTHORITY The debtors assert that using 11 U.S.C. §§ 105 and 525, that this Court can require the IRS to consider offers in compromise from bankruptcy debtors to avoid discrimination between bankruptcy debtors and non-debtor taxpayers. A Bankruptcy Court is entitled to exercise its equitable powers pursuant to § 105 of the Bankruptcy Code, which provides, in pertinent part: The court may issue any order, process, or judgment that is necessary or appropriate to carry out the provisions of this title. No provision of this title providing for the raising of an issue by a party in interest shall be construed to preclude the court from, sua sponte, taking any action or making any determination necessary or appropriate to enforce or implement court orders or rules, or to prevent an abuse of process. 11 U.S.C. § 105(a). The relevant provision in this adversary proceeding relates to prohibition of discrimination by governmental or quasi-governmental units. Section 525(a) provides, in pertinent part, as follows: “[A] governmental unit may not deny, revoke, suspend, or refuse to" } ]

[ { "docid": "13043695", "title": "", "text": "of the Bankruptcy Code provides in pertinent part that “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, [or] discriminate with respect to such a grant against,” a bankruptcy debtor “solely because” of the bankruptcy filing. 11 U.S.C. § 525(a) (emphasis added). PHFA does not dispute that it is a “governmental unit.” It does, however, strenuously challenge the holdings of the bankruptcy and district courts that in enacting section 525, Congress intended to prohibit the sort of temporary suspension of mortgage financing involved in this case. PHFA correctly notes that the express terms of the statute support its position; a HEMAP loan simply is not a “license, permit, charter, franchise or other similar grant.” Indeed, it seems perfectly clear that the items enumerated are in the nature of indicia of authority from a governmental unit to the authorized person to pursue some endeavor. Thus, a “similar grant” should be given the same meaning. Furthermore, as the Court of Appeals for the Second Circuit also has recognized, [a] credit guarantee is not a license, permit, charter or franchise; nor is it in any way similar to those grants_ Although the exact scope of the items enumerated may be undefined, the fact that the list is composed solely of benefits conferred by the state that are unrelated to credit is unambiguous. In re Goldrich, 771 F.2d 28, 30 (2d Cir.1985) (section 525 does not prevent government denial of student loan based upon default in repayment of prior discharged loan). It follows that if a credit guarantee is not a “similar grant,” neither is a loan. The district court, however, did not adopt the above reasoning, as it concluded that a narrow interpretation of section 525 would defeat its purpose, as revealed by its legislative history, to avoid discriminatory practices by governmental entities so that debtors could get the fresh start provided by the Bankruptcy Code. 93 B.R. at 355 (citations omitted). The obvious difficulty with the district court’s conclusion is that when an unambiguous" }, { "docid": "13290188", "title": "", "text": "provisions of the bankruptcy law. Indeed, to treat a discharged debtor and a “non-paying” obligor similarly would render bankruptcy relief superfluous. To hold otherwise would be tantamount to ignoring the legal discharge granted the Debtors. This Court therefore concludes that there existed the requisite intent and willfulness such that the Defendant’s actions should be sanctioned. Last, while not essential to this Court’s conclusion, the Defendant would be well advised to be apprised of 11 U.S.C. § 525, which provides: [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, deny employment to, terminate the employment of, or discriminate with respect to employment against, a person that is or has been a debtor under this title .... Undoubtedly the literal language in § 525 refers to a “governmental unit.” Given the private nature of the Defendant’s existence, § 525 appears inapplicable. However, relying on Congress’ invitation that “[t]he courts will continue to mark the contours of-the antidiscrimination provision in pursuit of sound bankruptcy policy,” H.R. Rep. No. 595, 95th Cong., 1st Sess. 367 (1977), U.S.Code Cong. & Admin.News 1978, 6323, accord 1 W. Norton, Bankruptcy Law & Procedure § 27.06, at 27-11 (1981), recent decisions have strongly suggested that § 525 should be construed to apply to private entities. E.g., In re Green, 29 B.R. 682, 686 (Bkrtcy.S.D.Ohio 1983) (private entity acting as “vicarious agent” of state; § 525 violated); In re Parkman, 27 B.R. 460, 462 (Bkrtcy.N.D.Ill.1983) (where “actions of a private institution ... are really tools to collect a discharged debt ..., debtors are denied the fresh start contemplated by Congress”). Applying this policy-oriented approach to § 525, see In re Rath Packing Co., 35 B.R. 615, 620 n. 11 (Bkrtcy.N.D.Iowa 1983), the Defendant’s letter and refusal to provide services constituted the type of discriminatory treatment sought to be eradicated by Congress in enacting § 525. Such actions should therefore not be condoned. IT IS THEREFORE ORDERED that: 1. The action of the Defendant" }, { "docid": "5177849", "title": "", "text": "Secs. 181-229), and section 1 of the Act entitled “An Act making appropriations for the Department of Agriculture for the fiscal year ending June 30, 1944, and for other purposes,” approved July 12, 1943 (57 Stat. 422; 7 U.S.C. Sec. 204), 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, deny employment to, terminate the employment of, or discriminate with respect to employment against, a person that is or has been a debtor under this title or a bankrupt or a debtor under the Bankruptcy Act, or another person with whom such bankrupt or debtor has been associated, solely because such bankrupt or debtor is or has been a debtor under this title or a bankrupt or debtor under the Bankruptcy Act, has been insolvent before the commencement of the case under this title, or during the case but before the debtor is granted or denied a discharge, or has not paid a debt that is dischargeable in the case under this title or that was discharged under the Bankruptcy Act. See generally In re Metro Transportation Co., 64 B.R. 968, 975-76 (Bankr.E.D.Pa. 1986). This provision prevents a public housing authority from denying a future public housing tenancy to a debtor-tenant on the basis of a prior rent obligation which has been discharged in bankruptcy. See In re Amhurst, Bankr. No. 84-02064T (Bankr. E.D.Pa., Order of March 8, 1985) (Order of Chief Judge Twardowski of this Court expressly adopting “the reasoning and holding” of Gibbs, infra)-, and In re Gibbs, 9 B.R. 758, 763-64 (Bankr.D.Conn.1981), reaffd, 12 B.R. 737 (Bankr.D.Conn. 1981). We believe that the strong public policy of 11 U.S.C. § 525 overrides the potential requirement of 11 U.S.C. § 365(b)(1) that a debtor assuming a lease must cure any pre-petition defaults or otherwise provide adequate protection to the landlord. See also In re Adams, 65 B.R. 646, 648 (Bankr.E.D.Pa.1986); and In re Knight, 8 B.R. 925, 928-29 (Bankr.D.Md. 1981) (A trustee’s rejection" }, { "docid": "10561542", "title": "", "text": "45 B.R. at 523. Chief Judge Weinstein accepted the conclusions of the bankruptcy court and ordered NYSHESC to process plaintiff’s student loan application without regard to the eligibility provisions of section 661(6)(b). The court also awarded plaintiff costs and attorney’s fees. This appeal followed. At oral argument we questioned whether the State of New York had been offered the opportunity to intervene before the district court pursuant to 28 U.S.C. § 2403(b) (1982). In the absence of evidence of such an offer in the record, we advised the office of the Attorney General that the constitutionality of a state statute was in question. The Attorney General responded by letter indicating that he accepted the views expressed in NYSHESC’s brief. DisCussion NYSHESC contends that the lower courts erred in interpreting the statutory language to include extensions of credit within the scope of the statute’s enumeration. Plaintiff argues that the “fresh start” policy embodied in section 525 is served by preventing creditors from considering past defaults in making decisions concerning future extensions of credit. We disagree with plaintiff and the lower courts as to the prohibition against consideration of prior bankruptcies in credit decisions because we believe that the language of section 525 may not properly be stretched so far beyond its plain terms. Therefore, we reverse the decision of the district court. Section 525 states in pertinent part: [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 ... solely because such bankrupt or debtor is or has been a debtor under this title ..., has been insolvent before the commencement of the case under this title, or during the case but before the debtor is granted or denied a discharge, or has not paid a debt that is dischargeable in the case under this title. The legislative history indicates that section 525 “codifies the result of Perez v. Campbell, 402 U.S. 637" }, { "docid": "16971478", "title": "", "text": "not constitute payment of rental fees or the extinguishment or cancellation of a debt. In re Hepburn, 27 B.R. 135, 136 (Bankr.E.D.N.Y.1983). Despite the discharge in bankruptcy, a landlord may still avail itself of its statutory remedies to recover possession of the premises for nonpayment of rent. See, e.g., In re Touloumis, 170 B.R. 825, 830 (Bankr.S.D.N.Y. 1994). D. Effect of Bankruptcy Code § 525 on Provisions of § 365 1. Construction and Interplay of Statutory Sections Even though § 365 permits a landlord to resort to eviction where a debt- or tenant fails to repay rent discharged in a bankruptcy proceeding, public housing tenants may be protected from eviction under § 525 of the Bankruptcy Code. Section 525 provides in relevant part: [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 a bankrupt or debtor under the Bankruptcy Act, ... solely because such a bankrupt or debtor is or has been a debtor under this title or a bankrupt or debtor under the Bankruptcy Act, ... or has not paid a debt that is discharge-able in the case under this title or that was discharged under the Bankruptcy Act. 11 U.S.C. § 525(a). The list of grants is not exhaustive or exclusive because Congress intended that the provision should address any form of discrimination that conflicted with the express policies underlying the Bankruptcy Act. See Gibbs v. Hous. Auth. of New Haven (In re Gibbs), 9 B.R. 758, 764 (Bankr.D.Conn.1981). “Section 525(a) prohibits actions by governmental or quasi-governmental organizations from discriminating against debtors in ways which affect the debtor’s fresh start.” In re Hobbs, 221 B.R. 892, 894 (Bankr.M.D.Fla. 1997). A public housing authority is a “governmental unit” and, thus, subject to the strictures of § 525. See 11 U.S.C. § 101(27); see also Gibbs, 9 B.R. at 764. In this case, the bankruptcy court concluded that the “more" }, { "docid": "11512110", "title": "", "text": "the Act entitled “An Act making appropriations for the Department of Agriculture for the fiscal years ending June 30, 1944, and for other purposes,” approved July 12, 1943 (57 Stat. 422; 7 U.S.C. § 204), 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, deny employment to, terminate the employment of, or discriminate with respect to employment against, a person that is or has been a debtor under this title or a bankrupt or a debtor under the Bankruptcy Act, or another person with whom such bankrupt or debtor has been associated, solely because such bankrupt or debtor is or has been a debtor under this title or a bankrupt or debtor under the Bankruptcy Act, has been insolvent before the commencement of the case under this title, or during the case but before the debtor is granted or denied a discharge, or has not paid a debt that is dischargeable in the case under this title or that was discharged under the Bankruptcy Act. We do note that, if discrimination as proscribed by 11 U.S.C. § 525(a) were found, that, in itself, would justify invocation of 11 U.S.C. § 105(a), without even a showing that the Debtor’s assets were threatened, as such discrimination cannot be countenanced in any circumstances. See Smith v. Pennsylvania Department of Transportation, 66 B.R. 244 (E.D.Pa.,1986), rev’g, 58 B.R. 78 (Bankr.E.D.1986); Henry v. Heyison, 4 B.R. 437 (E.D.Pa.1980); In re Jacobsmeyer, 13 B.R. 298 (Bankr.W.D.Mo.1981); and In re Maley, 9 B.R. 832 (Bankr.W.D.N.Y.1981). We should note that, if it were necessary to decide this issue, we would be inclined to give a broad reading to 11 U.S.C. § 525(a). While we acknowledge the presence of language in § 525(a) reciting that only governmental action taken “solely because” of a bankruptcy filing is prohibited, we do not think that a debtor need prove that the government explicitly denied a benefit only because of a bankruptcy filing to prove a case" }, { "docid": "13294895", "title": "", "text": "the Bankruptcy Court’s findings that the Commission’s actions improperly discriminated against Tell within the meaning of 11 U.S.C. § 525. Thus, the Commission argues that the Bankruptcy Court had no authority to usurp its regulatory authority and permit Tell to operate in violation of state law. Under 11 U.S.C. § 362, the filing of a bankruptcy petition ordinarily stays all judicial and other proceedings concerning the debtor. However, this general provision contains several listed exceptions, including 11 U.S.C. § 362(b)(4) (“§ 362(b)(4)”) which provides: (b) The filing of a petition under section 301, 302, or 303 of this title does not operate as a stay— (4) under subsection (a)(1) of this section, of the commencement or continuation of an action or proceeding by a governmental unit to enforce such governmental unit’s police or regulatory power[.] This exception, though, has its own judicially interpreted exceptions. The courts have determined that “the term ‘police or regulatory power’ refers to the enforcement of state laws affecting health, welfare, morals, and safety, but not regulatory laws that directly conflict with the control of the res or property by the bankruptcy court”. State of Missouri v. United States Bankruptcy Court, 647 F.2d 768, 776 (8th Cir.1981), cert. denied, 454 U.S. 1162, 102 S.Ct. 1035, 71 L.Ed.2d 318 (1982); see also Donovan v. Timbers of Woodstock Restaurant, Inc., 19 B.R. 629 (D.C.N.D.Ill.1981); In re Gencarelli, 14 B.R. 751 (Bkrtcy.D.R.I.1981); see generally Annot., 58 A.L.R.Fed. 282 (1982). Thus, although a state proceeding is being conducted under regulatory or police powers, it may be subject to an automatic stay if the proceeding does not concern public health, welfare, morals or safety- In addition, even if a state proceeding is not automatically stayed, a bankruptcy court has authority to enjoin certain conduct under 11 U.S.C. § 525 (“§ 525”). That section provides in pertinent part: 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, deny employment to, terminate the employment of, or discriminate" }, { "docid": "13043694", "title": "", "text": "of suspending mortgage assistance upon the filing of a bankruptcy petition violated 11 U.S.C. §§ 525 and 362, and 42 U.S.C. § 1983. In re Watts, 76 B.R. 390 (Bkrtcy.E.D.Pa.1987). The court further granted the plaintiffs’ motion to maintain this action as a class action under Fed.R.Civ.P. 23(b)(2), the class being all individuals who have applied for or been awarded benefits under HEMAP “or will do so in the future.” While the bankruptcy court found that the defendants had violated 42 U.S.C. § 1983, it did not award the plaintiffs damages for the violation as they had not, at least yet, suffered any damages by reason of the violation. Thus, as the bankruptcy court noted, the relief was essentially injunctive and declaratory both as to the plaintiffs individually and the class. The defendants then appealed to the district court, which affirmed by opinion and order of November 30, 1988. 93 B.R. 350 (E.D. Pa.1988). The defendants then appealed to this court and we have jurisdiction under 28 U.S.C. § 158(d). A. Antidiscrimination Provision Section 525 of the Bankruptcy Code provides in pertinent part that “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, [or] discriminate with respect to such a grant against,” a bankruptcy debtor “solely because” of the bankruptcy filing. 11 U.S.C. § 525(a) (emphasis added). PHFA does not dispute that it is a “governmental unit.” It does, however, strenuously challenge the holdings of the bankruptcy and district courts that in enacting section 525, Congress intended to prohibit the sort of temporary suspension of mortgage financing involved in this case. PHFA correctly notes that the express terms of the statute support its position; a HEMAP loan simply is not a “license, permit, charter, franchise or other similar grant.” Indeed, it seems perfectly clear that the items enumerated are in the nature of indicia of authority from a governmental unit to the authorized person to pursue some endeavor. Thus, a “similar grant” should be given the same meaning. Furthermore, as the Court" }, { "docid": "4733076", "title": "", "text": "the courts of bankruptcy have labored under the shadow of jurisdictional uncertainties. E.g., Ranii, Bankruptcy’s Twilight Zone, Nat’l L.J., Nov. 7, 1983, at 1, col. 1. Indeed, judicial decisions criticizing the validity of the interim rule are no longer an uncommon occurrence. See, e.g., In re Wildman, 30 B.R. 133 (Bkrtcy.N.D.Ill.1983); In re Richardson, 27 B.R. 407 (Bkrtcy.D.Utah 1983), vacated sub nom., In re Color Craft Press, Ltd., 27 B.R. 962 (D.C.D.Utah 1983). Nonetheless, the Eighth Circuit Court of Appeals has found the “Local Rule ... constitutional and valid.” In re Hansen, 702 F.2d 728, 729 (8th Cir.1983); accord, e.g., In re Braniff Airways, Inc., 700 F.2d 214 (5th Cir.1983). Given Hansen, this Court is constrained to disagree with the Commissioner’s assertion that the interim rule governing operation of bankruptcy matters in this district does “not meet[ ] the Marathon problem.” In sum, the Commissioner’s subject matter jurisdiction arguments should be rejected. III. Governmental Discrimination 11 U.S.C. § 525 provides : [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 ... a person that is or has been a debtor under this title or a bankrupt or a debtor under the Bankruptcy Act, or another person with whom such bankrupt or debtor has been associated, solely because such bankrupt or debtor is or has been a debtor under this title or a bankrupt or debtor under the Bankruptcy Act, has been insolvent before the commencement of the case under this title, or during the case but before the debtor is granted or denied a discharge, or has not paid a debt that is dischargeable in the case under this title or that was discharged under the Bankruptcy Act. The Commissioner argues that he did not revoke a “license, permit, charter, franchise, or other similar grant” within the meaning of § 525. Further, the Commissioner argues that he did not act “solely because” of the Debtor’s status as a debtor under Title 11 or other tainted reasons under § 525. 1. “[L]icense, or" }, { "docid": "15705711", "title": "", "text": "law. The Supreme Court used the Supremacy Clause to invalidate the state statute, finding that it discriminated against debtors in a manner that frustrated and was contrary to the fresh start principles of the Bankruptcy Act. Id. at 649-52, 91 S.Ct. at 1711— 13. Congress thereafter signaled its approval of the Perez holding by enacting section 525(a), which prohibits bankruptcy-based discrimination by governmental units against debtors. Section 525(a) states, in relevant part, that: [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, deny employment to, terminate the employment of, or discriminate with respect to employment against, a person that is or has been a debtor under this title or a bankrupt or a debtor under the Bankruptcy Act, or another person with whom such bankrupt or debtor has been associated, solely because such bankrupt or debtor is or has been a debtor under this title or a bankrupt or debtor under the Bankruptcy Act, has been insolvent before the commencement of the case under this title, or during the case but before the debtor is granted or denied a discharge, or has not paid a debt that is discharge-able in the case under this title or that was discharged under the Bankruptcy Act. 11 U.S.C. § 525(a) (2001) (emphasis added). Notably, the text of Section 525(a) does not limit its scope to the facts presented in Perez. Section 525(a) applies to any governmental unit, not just a State agency or department; it covers not only licenses, but also permits, charters, franchises, and other similar grants; and it applies regardless of whether the governmental unit involved is the creditor whom the debtor failed to pay, or is simply a grantor conditioning a grant on the debt- or’s satisfaction of a discharged debt owed to a third party. 2. Case Law Development of Section 525(a) In the nearly twenty-four years that have passed since its enactment, section 525(a) has been interpreted by the courts to protect" }, { "docid": "3453627", "title": "", "text": "the bankruptcy, the contract options would not be exercised. In the bankruptcy proceedings, Exquisito alleged discrimination in violation of 11 U.S.C. § 525(a) (Supp. II. 1984). The court found that the Air Force had not renewed the contract solely because Exquisito had filed under chapter 11, and ordered renewal. The Air Force exercised the option, but appealed the order to the District Court. While the appeal was pending, the Air Force solicited bids for the contract. Ex-quisito participated, but there were lower bids. The district court affirmed the bankruptcy court’s order to renew the contract and the government appeals. ANALYSIS The order to renew was based on the court’s determination that the statute prohibiting discrimination against those filing for bankruptcy applied. The section provides: ... a governmental unit may not ... refuse to renew a license, permit, charter, franchise, or other similar grant to, ... discriminate with respect to such a grant against, ... or discriminate with respect to employment against, a person that is or has been a debtor under this title or a bankrupt or a debtor under the Bankruptcy Act, ... solely because such bankrupt or debtor is or has been a debt- or under this title or a bankrupt or debt- or under the Bankruptcy Act,.... 11 U.S.C. § 525(a) (West Supp.1987). For the purposes of Title 11, person is defined to include “individual, partnership, and corporation_” 11 U.S.C. § 101(35) (West Supp.1987). The court’s interpretation of the statute is reviewed de novo. See Matter of Consolidated Bancshares, Inc., 785 F.2d 1249, 1252 (5th Cir.1986). In construing § 525, most courts have broadly applied the anti-discrimination provision. See In re Rees, 61 B.R. 114, 120-22 (Bankr.D.Utah 1986) (collecting cases); In re The A.C. Williams Co., 51 B.R. 496, 500 (Bankr.N.D.Ohio 1985) (collecting cases); In re Goldrich, 45 B.R. 514, 521-22 (Bankr.E.D.N.Y.1984) (collecting cases). As a result, the section has been invoked successfully with regard to areas as diverse as liquor or drivers’ licenses, government contracts, school transcripts, public housing, mortgage financing, utility service, insurance, and agricultural subsidies. Id. Courts have followed two approaches in delimiting the" }, { "docid": "10173192", "title": "", "text": "the anti-discrimination provision of the Bankruptcy Code has occurred. We make the limited holding that Bradley has offered sufficient evidence so that the bankruptcy court must take subject matter jurisdiction to determine whether the Commissioner’s March 23, 1990 order violates 11 U.S.C. § 525. REVERSED and REMANDED. . § 525(a) states that, \"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 ... solely because such bankrupt ... has not paid a debt that is dischargeable in the case under this title or that was discharged under the Bankruptcy Act.” . U.S.Code Cong. & Admin.News 1978, at 5787, 6401. . § 525 also applies to debtor’s currently in bankruptcy, but in that instance this issue of jurisdiction after the closing of the estate would not arise. . Applegate v. March, 64 B.R. 448, 450 (Bkrtcy. E.D.Va.1986). . See e.g., Matter of Holder, 40 B.R. 847 (Bkrtcy. E.D.Wis.1984). . Holder states this impermissible quid pro quo. Id. at 850. . In re Barley, 130 B.R. 66, 69 (Bkrtcy.N.D.Ind. 1991). See Bankruptcy Rule 4007(c)." }, { "docid": "13294896", "title": "", "text": "with the control of the res or property by the bankruptcy court”. State of Missouri v. United States Bankruptcy Court, 647 F.2d 768, 776 (8th Cir.1981), cert. denied, 454 U.S. 1162, 102 S.Ct. 1035, 71 L.Ed.2d 318 (1982); see also Donovan v. Timbers of Woodstock Restaurant, Inc., 19 B.R. 629 (D.C.N.D.Ill.1981); In re Gencarelli, 14 B.R. 751 (Bkrtcy.D.R.I.1981); see generally Annot., 58 A.L.R.Fed. 282 (1982). Thus, although a state proceeding is being conducted under regulatory or police powers, it may be subject to an automatic stay if the proceeding does not concern public health, welfare, morals or safety- In addition, even if a state proceeding is not automatically stayed, a bankruptcy court has authority to enjoin certain conduct under 11 U.S.C. § 525 (“§ 525”). That section provides in pertinent part: 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, deny employment to, terminate the employment of, or discriminate with respect to employment against, a person that is or has been a debtor under this title or a bankrupt or a debtor under the Bankruptcy Act, or another person with whom such bankrupt or debtor has been associated, solely because such bankrupt or debtor is or has been a debtor under this title or a bankrupt or debtor under the Bankruptcy Act, has been insolvent before the commencement of the case under this title, or during the case but before the debtor is granted or denied a discharge, or has not paid a debt that is dischargeable in the case under this title or that was discharged under the Bankruptcy Act. Critical to an application of § 525 is a determination whether the state’s conduct is discriminatory. A bankruptcy court’s findings of fact in that regard cannot be set aside by a reviewing court unless they are clearly erroneous. In re Martin, 698 F.2d 883, 885 (7th Cir.1983). Applying these standards to this case, the court will first consider the applicability of § 362(b)(4)" }, { "docid": "10274735", "title": "", "text": "applicable sections of § 525(a) state: (a) Except as provided in the Perishable Agricultural Commodities Act, 1930, the Packers and Stockyards Act, 1921, and section 1 of the Act entitled “An Act making appropriations for the Department of Agriculture for the fiscal year ending June 30, 1944, and for other purposes,” approved July 12, 1943, 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, deny employment to, terminate the employment of, or discriminate with respect to employment against, a person that is or has been a debtor under this title or a bankrupt or a debtor under the Bankruptcy Act, or another person with whom such bankrupt or debtor has been associated, solely because such bankrupt or debtor is or has been a debtor under this title or a bankrupt or debtor under the Bankruptcy Act, has been insolvent before the commencement of the case under this title, or during the case but before the debtor is granted or denied a discharge, or has not paid a debt that is dischargeable in the case under this title or that was discharged under the Bankruptcy Act. A governmental unit may not revoke a license solely because a debtor is a debtor under the Code or has been insolvent before the commencement of the case. 11 U.S.C. § 525(a). However, this prohibition is not violated where the denial of a license is based on other factors such as the debtor’s lack of financial responsibility. In re Will Rogers Jockey & Polo Club, Inc., 111 B.R. 948, 954 (Bankr.N.D.Okla.1990) (holding that debtor’s pari-mutuel racing license application was validly denied). Section 525(a) does not prohibit a state agency’s examination of financial responsibility pursuant to state regulations in determining whether to suspend a debtor’s license. In re Christmas, 102 B.R. 447, 448 (Bankr.D.Md.1989) (concluding that horse trainer’s license was validly suspended). Iowa Code chapter 99D requires that racing license applicants must demonstrate financial responsibility. Related regulations require that an" }, { "docid": "15705710", "title": "", "text": "the public housing lease. If, on the other hand, section 525(a) is construed to only protect the debtor-tenant’s future right to participate in the public housing program, then there is no conflict between sections 525(a) and 365, and BHA may proceed with the eviction. A. Standard of Review The rulings of a district court acting as an appellate court in a bankruptcy case are subject to plenary review. In re Mazzeo, 167 F.3d 139, 142 (2d Cir.1999). Accordingly, this Court reviews the bankruptcy court’s conclusions of law de novo and its findings of fact for clear error. McCord v. Agard (In re Bean), 252 F.3d 113, 116 (2d Cir.2001). B. Development of the Antidiscrimination Provision 1. Codification of Perez v. Campbell Section 525(a) evolved from Perez v. Campbell, 402 U.S. 637, 91 S.Ct. 1704, 29 L.Ed.2d 233 (1971), a seminal bankruptcy case in which the Supreme Court struck down a state statute that withheld driving privileges from debtors who failed to satisfy motor-vehicle-related tort judgments against them, even if the judgments were discharged under bankruptcy law. The Supreme Court used the Supremacy Clause to invalidate the state statute, finding that it discriminated against debtors in a manner that frustrated and was contrary to the fresh start principles of the Bankruptcy Act. Id. at 649-52, 91 S.Ct. at 1711— 13. Congress thereafter signaled its approval of the Perez holding by enacting section 525(a), which prohibits bankruptcy-based discrimination by governmental units against debtors. Section 525(a) states, in relevant part, that: [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, deny employment to, terminate the employment of, or discriminate with respect to employment against, a person that is or has been a debtor under this title or a bankrupt or a debtor under the Bankruptcy Act, or another person with whom such bankrupt or debtor has been associated, solely because such bankrupt or debtor is or has been a debtor under this title or a bankrupt or" }, { "docid": "17686385", "title": "", "text": "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 has been associated, solely because such bankrupt or debtor is or has been a debtor under this title ... or has not paid a debt that is dischargeable in the case under this title.... See, e.g., In re Bill, 90 B.R. 651, 658 (Bankr.D.N.J.1988) (suspending driver’s license for failure to pay surcharge violated § 525); In re The Bible Speaks, 69 B.R. 368, 373 (Bankr.D.Mass.1987). It is well recognized that “[t]he prohibition against discrimination based upon the filing of a bankruptcy case necessarily extends to discrimination based upon automatic or likely consequences of such filing.” 4 Collier on Bankruptcy ¶ 525.02[1] at pp. 525-7. It appears that the FCC has violated Section 525 in its attempt to retroactively cancel the Licenses. The apparent discrimination is alleged in two forms. One form is the alleged differences in treatment of NextWave, on the one hand, and other C block and other spectrum license holders, on the other, summarized in the submission of debtors’ counsel. To establish this form of discrimination would require discovery proceedings and an evi-dentiary" }, { "docid": "7253316", "title": "", "text": "to IRS to accept the debtors’ offer in compromise, but merely want the Court to require the IRS to consider and process their offer in compromise as they would those submitted by non-debtor taxpayers. Debtors state that the IRS’ policy change in February, 1997 is governmental discrimination against bankruptcy debtors in violation of 11 U.S.C. § 525(a), and that this Court has the power under 11 U.S.C. § 105 to ensure that debtors in bankruptcy are treated the same as non-debtors by the IRS in conjunction with offers to compromise tax debts. Debtors rely upon the portion of § 525 which prohibits discrimination against debtors by governmental acts to “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, to deny employment to, or terminate the employment of an individual” solely on the basis that such individual has filed bankruptcy. See Debtors’ Memorandum at 7. Debtors refer to this Court’s Order of November 30, 1998 which denied the United States’ motion to dismiss wherein the Court noted that the IRS violated its own statutory grant of authority and acted in a manner inconsistent with other provisions of the statute. Debtors cite Perez v. Campbell, 402 U.S. 637, 91 S.Ct. 1704, 29 L.Ed.2d 233 (1971) in support of an expansive interpretation of the anti-discrimination provisions of § 525. Debtors state that the right to offer an alternative tax treatment is a “license” as contemplated under § 525, in that it would be illegal for taxpayers to submit such an offer in the absence of 26 U.S.C. § 7122. Debtors state that the statute authorizing taxpayers to submit offers of alternative treatment of their tax obligations to the government should be applicable to all taxpayers, regardless of their bankruptcy filing, and that the failure of the IRS to consider offers from bankruptcy debtors is a violation of Congressional intent and therefore discriminatory under § 525. Debtors further cite cases in support of the view that § 525 is a non-exhaustive list of the" }, { "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": "16957369", "title": "", "text": "the case authority and correctly applied the facts under section 525, our review is de novo. III. Application of Section 525(a) The Bankruptcy Code provides in pertinent part: [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, deny employment to, terminate the employment of, or discriminate with respect to employment against, a person that is or has been a debtor under this title or a bankrupt or a debtor under the Bankruptcy Act, or another person with whom such bankrupt or debtor has been associated, solely because such bankrupt or debtor is or has been a debtor under this title or a bankrupt or debtor under the Bankruptcy Act, has been insolvent before the commencement of the case under this title, or during the case but before the debtor is granted or denied a discharge, or has not paid a debt that is discharge-able in the case under this title or that was discharged under the Bankruptcy Act. 11 U.S.C. § 525(a). This provision protects debtors from acts of discrimination by governmental units when the discrimination is due solely to the fact that the debtor filed a bankruptcy petition, was insolvent, or failed to pay a discharged obligation. It is not reasonably subject to dispute that this statute applies to the Housing Authority in this case. See In re Bacon, 212 B.R. 66, 75 (Bankr. E.D.Pa.l997)(“[I]ndeed none of the cases denying section 525(a) protection to a public housing tenant has held or suggested that it cannot be invoked upon a Housing Authority’s refusal to grant public housing benefits to a debtor with unpaid, but discharged, debt to the landlord.”). The ultimate issue in this case is whether the Housing Authority may terminate the debtor’s benefits, i.e., the subsidy to provide her rent, because she failed to pay thirty percent of her income toward her rent as required by the regulations governing the program. We conclude that section 525(a) does not prohibit this action. We" }, { "docid": "7253315", "title": "", "text": "compromise submitted by bankruptcy debtors. One such section states as follows: 1. We will not consider an offer in compromise submitted by a taxpayer in bankruptcy. When a taxpayer files bankruptcy the Bankruptcy Code and our administrative procedures protect the interest of the government in the same way that the procedures for the investigation of an offer are geared to protecting the government’s interest. In addition, investigating an offer could be considered a violation of the stay of collection action provided by the Bankruptcy Code. 2. An offer will not be considered until the termination of the bankruptcy proceeding. 3. If an offer in compromise is submitted while the taxpayer is in bankruptcy, the offer is not processable. Follow Chapter 3, Criteria to Determine Pro-cessability. The Chapter 3, Processability Determination, states with regard to taxpayers who have filed bankruptcy that the IRS “[cjannot consider an offer until the bankruptcy proceeding is terminated.” An offer by a taxpayer in bankruptcy is “not processable.” DEBTORS’ ARGUMENTS: Debtors state that they are not requesting this Court to require to IRS to accept the debtors’ offer in compromise, but merely want the Court to require the IRS to consider and process their offer in compromise as they would those submitted by non-debtor taxpayers. Debtors state that the IRS’ policy change in February, 1997 is governmental discrimination against bankruptcy debtors in violation of 11 U.S.C. § 525(a), and that this Court has the power under 11 U.S.C. § 105 to ensure that debtors in bankruptcy are treated the same as non-debtors by the IRS in conjunction with offers to compromise tax debts. Debtors rely upon the portion of § 525 which prohibits discrimination against debtors by governmental acts to “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, to deny employment to, or terminate the employment of an individual” solely on the basis that such individual has filed bankruptcy. See Debtors’ Memorandum at 7. Debtors refer to this Court’s Order of November 30, 1998 which" } ]

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

[ { "docid": "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": "22976813", "title": "", "text": "and entered a final judgment, denying Dowthitt habeas relief on all claims, dismissing his case with prejudice, and denying Dowthitt’s request for a COA. After .the district court denied his Rule 59(e) motion, Dowthitt timely appealed to this court, requesting a COA and reversal of the district court’s judgment denying habeas relief. II. DISCUSSION Because Dowthitt’s petition for federal habeas relief was filed after April 24, 1997, this appeal is governed by the Anti-Terrorism and Effective Death Penalty Act of 1996 (AEDPA), Pub.L. No. 104-132, 100 Stat. 1214. See Molo v. Johnson, 207 F.3d 773, 775 (5th Cir.2000) (“Petitioners whose convictions became final before the effective date of the AEDPA were given a grace period of one year to file their federal habeas petitions, rendering them timely if filed by April 24, 1997.”). Under AED-PA, a petitioner must first obtain a COA in order for an appellate court to review a district court’s denial of habeas relief. See 28 U.S.C. § 2253(c)(1)(A). 28 U.S.C. § 2253(c)(2) mandates that a COA will not issue unless the petitioner makes “a substantial showing of the denial of a constitutional right.” This standard “includes showing that reasonable jurists could debate whether (or, for that matter, agree that) the petition should have been resolved in a different manner or that the issues presented were adequate to deserve encouragement to proceed further.” Slack v. McDaniel, 529 U.S. 473, 120 S.Ct. 1595, 1603-04, 146 L.Ed.2d 542 (2000) (internal quotations and citations omitted); see also Hill v. Johnson, 210 F.3d 481, 484 (5th Cir.2000). The formulation of the COA test is dependent upon whether the district court dismisses the petitioner’s claim on constitutional or procedural grounds. If the district court rejects the constitutional claims on the merits, the petitioner “must demonstrate that reasonable jurists' would find the district court’s assessment of the constitutional claims debatable or wrong.” Slack, 120 S.Ct. at 1604. On the other hand, [w]hen the district court denies a habeas petition on procedural grounds without reaching the prisoner’s underlying constitutional claim, a COA should issue when the prisoner shows, at least, that jurists of reason" }, { "docid": "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": "18061434", "title": "", "text": "§ 2254 habeas corpus petition, however, the Antiterrorism and Effective Death Penalty Act of 1996 (\"AEDPA”), Pub.L. No. 104-132, 110 Stat. 1214, \"governs the conditions of [Jones’s] appeal, and so he was required to seek a COA to obtain appellate review of the dismissal of his habeas petition.” Slack v. McDaniel, 529 U.S. 473, 482, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000). We treat Jones's notice of appeal, filed on September 24, 2013, as an application for a COA. See Fed. R.App. P. 22(b); Slack, 529 U.S. at 483, 120 S.Ct. 1595. When the district court denies a habeas corpus petition on procedural grounds and fails to reach the prisoner’s underlying constitutional claim, a COA should issue when the prisoner shows \"that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling.” Slack, 529 U.S. at 484, 120 S.Ct. 1595. Reviewing Jones's motion, we conclude that he has satisfied AEDPA's requirements for a COA by making “a substantial showing of the denial of a constitutional right,” 28 U.S.C. § 2253(c)(2), and by showing that jurists of reason could debate whether the district court properly dismissed Jones’s Rule 60(b) motion as a disguised (and unauthorized) second or successive 28 U.S.C. § 2254 habeas corpus petition. We grant Jones a COA, though this of course is not the same as authorizing him to file a second or successive 28 U.S.C. § 2254 habeas corpus petition based on the standard in 28 U.S.C. § 2244(b). . An Arizona execution warrant expires 24 hours from the date it sets for the execution. Ariz. R.Crim. P. 31.17(c)(3). Jones’s warrant sets his execution for October 23, 2013, and therefore expires the next day. Because it would take far longer than that to reopen and adjudicate the claims Jones now wishes to pursue, the State would be forced to obtain a new warrant if Jones is allowed to proceed but then loses. Thus, the likely need to" }, { "docid": "7599260", "title": "", "text": "we held that these claims were not procedurally defaulted. While we are generally not in the business of reversing certificates of appealability, see Porterfield v. Bell, 258 F.3d 484, 485 (6th Cir.2001), it bears repeating what is required before one can be issued. To obtain a COA on an issue, a petitioner must show that “reasonable jurists would find the district court’s assessment of the constitutional claim[ ] debatable or wrong.” Miller-El v. Cockrell, 537 U.S. 322, 338, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003). This inquiry is straightforward when a district court denies a constitutional claim on the merits. But where the district court denies an issue on procedural grounds without evaluating the merits of the underlying constitutional claim, courts should grant a COA only if two requirements are satisfied. See Slack v. McDaniel, 529 U.S. 473, 484-85, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000). First, the court must determine that reasonable jurists would find the district court’s procedural assessment debatable or wrong. Id. at 484, 120 S.Ct. 1595. Second, the court must determine that reasonable jurists would find it debatable or obvious that the petitioner states a valid underlying constitutional claim on the merits. Id. If the petitioner cannot make both of these showings, assessed in whatever order, then a court should not grant a COA on the procedural issue. Id. This framework faithfully applies the text of 28 U.S.C. § 2253 — requiring “a substantial showing of the denial of a constitutional right” before courts may grant a COA — while not making procedural rulings unreviewable. See Slack, 529 U.S. at 484, 120 S.Ct. 1595. By contrast, it does violence to the text of § 2253-a jurisdictional statute, see Hill v. Mitchell, 400 F.3d 308, 329 (6th Cir.2005) — when courts grant COAs without assessing the debatability of the underlying merits. IV. For these reasons, we affirm." }, { "docid": "20905966", "title": "", "text": "standard that should be applied to the COA requirement under the current section 2253 and its requirement that a COA only issue upon “a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). Courts of appeals that have articulated standards for issuance of a COA in this context have generally drawn from the Supreme Court’s decision in Slack v. McDaniel, 529 U.S. 473, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000). United States v. Arrington, 763 F.3d 17, 23 (D.C.Cir.2014); Spitznas, 464 F.3d at 1225; Reid, 369 F.3d at 371; Gonzalez, 366 F.3d at 1267. In Slack, the Court determined the standard governing issuance of a COA when the district court denies a habeas petition on procedural grounds. The Court articulated a two part standard: When the district court denies a habeas petition on procedural grounds without reaching the prisoner’s underlying constitutional claim, a COA should issue when the prisoner shows, at least, [1] that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and [2] that jurists of reason would find it debatable whether the district court was correct in its procedural ruling. Slack, 529 U.S. at 484, 120 S.Ct. 1595. The Court held that this test “gives meaning to Congress’s requirement that a prisoner demonstrate substantial underlying constitutional claims and is in conformity with the meaning of the ‘substantial showing’ standard provided in Barefoot ... and adopted by Congress in AEDPA.” Id. The substantial showing standard is met when “reasonable jurists could debate whether ... the petition should have been resolved in a different manner or that the issues presented were adequate to deserve encouragement to proceed further.” Id. at 484, 120 S.Ct. 1595 (citation and internal quotation marks omitted). Similarly, we hold that a COA should only issue for the appeal arising from the denial of a Rule 60(b) motion in a section 2255 proceeding if the movant shows that (1) jurists of reason would find it debatable whether the district court abused its discretion in denying the Rule 60(b) motion and" }, { "docid": "15107164", "title": "", "text": "Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Johnny William Cooper, Jr., seeks to appeal the district court’s order denying his Fed. R. Civ. P. 60(d)(3) motion seeking relief from the district court’s order denying Cooper’s 28 U.S.C. § 2255 (2012) motion. The order is not appealable unless a circuit justice or judge issues a certificate of appealability. 28 U.S.C. § 2253(c)(1)(B) (2012). A certificate of appealability will not issue absent “a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2) (2012). When the district court denies relief on the merits, a prisoner satisfies this standard by demonstrating that reasonable jurists would find that the district court’s assessment of the constitutional claims is debatable or wrong. Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000); see Miller-El v. Cockrell, 537 U.S. 322, 336-38, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003). When the district court denies relief on procedural grounds, the prisoner must demonstrate both that the dispositive procedural ruling is debatable, and that the motion states a debatable claim of the denial of a constitutional right. Slack, 529 U.S. at 484-85, 120 S.Ct. 1595. We have independently reviewed the record and conclude that Cooper has not made the requisite showing. Accordingly, we deny a certificate of appealability and dismiss the appeal. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before this court and argument would not aid the decisional process. DISMISSED" }, { "docid": "14010033", "title": "", "text": "denied. II To receive a COA, Cardenas must make a substantial showing of the denial of a constitutional right. 28 U.S.C. § 2253(c)(2). When a district court rejects a claim on the merits, “[t]he petitioner must demonstrate that reasonable jurists would find the district court’s assessment of the constitutional claims debatable or wrong.” Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000). In capital cases, doubts about whether the petitioner has met the standard must be resolved in favor of the petitioner. Clark v. Johnson, 202 F.3d 760, 764 (5th Cir.2000). When a petition is dismissed on procedural grounds, the petitioner must show that “jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling.” Slack, 529 U.S. at 484, 120 S.Ct. 1595 (emphasis added). At the COA stage, a court should “limit its examination to a threshold inquiry into the underlying merit of his claims.” Miller-El v. Cockrell, 537 U.S. 322, 327, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003) (citing Slack, 529 U.S. at 481, 120 S.Ct. 1595). We do not fully consider “the factual or legal bases adduced in support of the claims,” and a petitioner need not show that an appeal will succeed in order to be entitled to a COA. Id. at 336-37, 123 S.Ct. 1029. “The question is the debatability of the underlying constitutional claim, not the resolution of that debate.” Id. at 342, 120 S.Ct. 1595. The district court should evaluate the habeas petition to see if the state court’s determination “resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court.” 28 U.S.C. § 2254(d)(1). A decision adjudicated on the merits in a state court and based on a factual determination will not be overturned on factual grounds unless it “resulted in a decision that was based on an unreasonable determination of the facts in light" }, { "docid": "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": "22880481", "title": "", "text": "EDITH H. JONES, Circuit Judge: Bruce Wayne Houser, Texas prisoner # 460890, moves for a certificate of appeal-ability (COA) to appeal the dismissal of his 28 U.S.C. § 2254 petition for failure to exhaust administrative remedies and as procedurally barred. In that petition, Houser alleged due process violations in connection with prison disciplinary proceeding # 20020003898. Houser has demonstrated that reasonable jurists could debate whether the district court was correct in its procedural ruling. See Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 1603-04, 146 L.Ed.2d 542 (2000). However, he fails to establish that reasonable jurists could debate whether he has claimed a valid deprivation of his constitutional rights. See id. COA IS DENIED. The district court found that Houser failed to exhaust his state remedies because he had not filed his Step 1 grievance in a timely manner and, further, that he had failed to file a Step 2 grievance. Both of these findings are rendered questionable by the record, which indicates that Houser’s Step 1 grievance was received on the first working day beyond the fifteen-day period allotted for filing grievances and, per the Offender Grievance Operations Manual, was therefore timely. Also, contrary to the district court’s finding, the record contains a copy of Houser’s Step 2 grievance and the response issued by prison authorities. The district court’s determination of failure to exhaust is at best suspect. However, for a COA to issue, Houser must prove not only that reasonable jurists could debate whether the district court was correct in its procedural ruling, but also that reasonable jurists could find it debatable that the petition states a valid claim of the denial of a constitutional right. 28 U.S.C. § 2253(c); Slack, 529 at 484, 120 S.Ct. at 1603-04. This coequal portion of the appealability test “gives meaning to Congress’ requirement that a prisoner demonstrate substantial underlying claims.” Slack, id. Accordingly, we must consider whether “reasonable jurists would find the district court’s assessment of the constitutional claims debatable or wrong.” Miller-El v. Cockrell, 537 U.S. 322, 338, 123 S.Ct. 1029, 1040, 154 L.Ed.2d 931 (2003). Performing the" }, { "docid": "5215502", "title": "", "text": "2011 WL 4826968 (Tex.Crim. App. Oct. 12, 2011). Garza filed his amended federal habeas petition in 2012, which the district court denied. Garza v. Thaler, 909 F.Supp.2d 578, 691 (W.D.Tex.2012). The district court also denied Garza a COA. Id. Garza now requests a COA from this court. II. The AEDPA governs our consideration of Garza’s request for a COA. Under the AEDPA, a state habeas petitioner must obtain a COA before he can appeal the federal district court’s denial of habeas relief. 28 U.S.C. § 2253(c)(1)(A); see Miller-El v. Cockrell, 537 U.S. 322, 336, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003) (describing a COA as a jurisdictional prerequisite without which federal courts of appeals lack jurisdiction to rule on the merits of the appeals from habeas petitioners). A COA is warranted upon a substantial showing of the denial of a constitutional right. § 2253(c)(2). A petitioner satisfies this standard if reasonable jurists would find the district court’s assessment of the constitutional claims debatable or wrong. Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000). To obtain a COA when the district court has denied relief on procedural grounds, such as procedural default, a petitioner must show both a debatable claim on the merits and that the district court’s procedural ruling is debatable. See id. at 484-85, 120 S.Ct. 1595. The issue is the debatability of the underlying constitutional claim, not the resolution of the debate. Miller-El, 537 U.S. at 342, 123 S.Ct. 1029; see id. at 338, 123 S.Ct. 1029 ([A] claim can be debatable even though every jurist of reason might agree, after the COA has been granted and the case has received full consideration, that petitioner will not prevail). This threshold inquiry does not require full consideration of the factual or legal bases adduced in support of the claims. In fact, the statute forbids it. Id. at 336, 123 S.Ct. 1029. In cases involving the death penalty, any doubts as to whether a COA shoúld issue must be resolved in [the petitioner’s] favor. Hernandez v. Johnson, 213 F.3d 243, 248 (5th Cir.2000). We" }, { "docid": "23442042", "title": "", "text": "court’s decision to deny his “Motion for Leave to File a Second Amended Petition for Writ of Habeas Corpus.” As explained below, we treat Murray’s uncertified claim as a motion to expand the certificate of appealability (“COA”) that we previously granted. Under Federal Rule of Appellate Procedure 22(b)(2), a notice of appeal constitutes an application for a COA. See Slack v. McDaniel, 529 U.S. 473, 483, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000). Thus, where “a motions panel grants a COA in part and denies a COA in part,” “[uncerti-fied issues raised and designated in [the manner prescribed by Ninth Circuit Rule 22-1] will be construed as a motion to expand the COA and will be addressed by [us] to such extent as [we] deem[ ] appropriate.” 9th Cir. R. 22-1(d)-(e). A COA may issue in federal habe-as review of state proceedings “only if the applicant has made a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2); see also Wilson v. Belleque, 554 F.3d 816, 825-26 (9th Cir.2009). This is not an exacting standard. Id. at 826. We will “not decline the application for a COA merely because [we] believe[ ] the applicant will not [ultimately] demonstrate an entitlement to relief.” Miller-El, 537 U.S. at 337, 123 S.Ct. 1029. Rather, we will issue a COA “if jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right.” Wilson, 554 F.3d at 826. If, however, the district court denies a habeas petition on procedural grounds without reaching the prisoner’s underlying constitutional claim, a COA should issue when ... jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling. Slack, 529 U.S. at 484, 120 S.Ct. 1595 (emphasis added). “Where a plain procedural bar is present and the district court is correct to invoke it to dispose of the case, a reasonable jurist could not[, however,] conclude" }, { "docid": "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": "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": "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": "18128604", "title": "", "text": "and the files and records of the case conclusively show that the prisoner is entitled to no relief.’ ” United States v. Morrison, 98 F.3d 619, 625 (D.C.Cir.1996) (quoting 28 U.S.C. § 2255). The Court finds the record in this case conclusively shows that the defendant is not entitled to relief, and thus, will dismiss the motion without a hearing. III. CERTIFICATE OF APPEALA-BILITY A petitioner must obtain a certifícate of appealability (“COA”) before pursuing any appeal from a final order in a § 2255 proceeding. See 28 U.S.C. § 2253(c)(1)(B). When the denial of a § 2255 motion is based on the merits of the claims in the motion, a district court should issue a certificate of appealability only when the appeal presents a “substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). In Slack v. McDaniel, the Supreme Court stated that when a district court rejects the constitutional claims on the merits, “[t]he petitioner must demonstrate that reasonable jurists would find the district court’s assessment of the constitutional claims debatable or wrong.” 529 U.S. 473, 483, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000). Because the defendant has not made a substantial showing of the denial of a constitutional right, and because the Court finds that reasonable jurists would not find the Court’s assessments of his constitutional claims debatable or wrong, the Court declines to issue a certificate of appealability. IV. CONCLUSION Because the defendant was lawfully arrested on May 12, 2008, the Court concludes that Ms. Shaner’s failure to file a motion to quash the indictment or a motion to suppress evidence resulted in no prejudice to defendant’s case. Thus, defendant’s Motion must be denied. A separate Order consistent with this Memorandum Opinion shall issue this date. . The government inconsistently identified the FBI Agent who spoke with the tipster on May 12, 2008. Compare Opp'n 16 (\"citizen contacted Agent DeJesus\"), with id. at 25 (\"citizen contacted that FBI agent”), and DeJesus Aff. ¶ 13, ECF No. 1-1 (\"citizen contacted the FBI agent”). Special Agent DeJesus testified that his affidavit was true and accurate" }, { "docid": "19629239", "title": "", "text": "C. Walker as amicus curiae in support of the judgment of the Court of Appeals. She has ably discharged her responsibilities. III A This case comes to the Court in a somewhat unusual procedural posture. Under the Antiterrorism and Effective Death Penalty Act of 1996, there can be no appeal from a final order in a § 2255 proceeding unless a circuit justice or judge issues a certificate of appealability. 28 U.S.C. § 2253(c)(1). A certificate of appealability may issue \"only if the applicant has made a substantial showing of the denial of a constitutional right.\" § 2253(c)(2). That standard is met when \"reasonable jurists could debate whether (or, for that matter, agree that) the petition should have been resolved in a different manner.\" Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000). Obtaining a certificate of appealability \"does not require a showing that the appeal will succeed,\" and \"a court of appeals should not decline the application ... merely because it believes the applicant will not demonstrate an entitlement to relief.\" Miller-El v. Cockrell, 537 U.S. 322, 337, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003). The decision under review here is the single-judge order in which the Court of Appeals denied Welch a certificate of appealability. Under the standard described above, that order determined not only that Welch had failed to show any entitlement to relief but also that reasonable jurists would consider that conclusion to be beyond all debate. See Slack, supra, at 484, 120 S.Ct. 1595. The narrow question here is whether the Court of Appeals erred in making that determination. That narrow question, however, implicates a broader legal issue: whether Johnson is a substantive decision with retroactive effect in cases (like Welch's) on collateral review. If so, then on the present record reasonable jurists could at least debate whether Welch should obtain relief in his collateral challenge to his sentence. On these premises, the Court now proceeds to decide whether Johnson is retroactive. B The normal framework for determining whether a new rule applies to cases on collateral review stems from" }, { "docid": "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": "23625770", "title": "", "text": "F.Supp.2d 1087 (C.D.Cal.1998). STANDARDS OF REVIEW A. General Standards We review de novo a district court’s denial of a § 2255 motion. United States v. McMullen, 98 F.3d 1155, 1156 (9th Cir.1996). We review for clear error a district court’s factual findings that underlie the disposition of a § 2255 motion. Sanchez v. United States, 50 F.3d 1448, 1452 (9th Cir.1995). B. Standard for Issuing a COA A COA may issue only upon the “substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). Where a district court has rejected the constitutional claims on the merits, the showing required to satisfy § 2253(c) is straightforward: The petitioner must demonstrate that reasonable jurists would find the district court’s assessment of the constitutional claims debatable or wrong.... When the district court denies a habeas petition on procedural grounds without reaching the prisoner’s underlying constitutional claim, a COA should issue when the prisoner shows, at least, that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling. Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000). The Supreme Court recently elaborated on what is required to make such a showing: The COA determination under § 2253(c) requires an overview of the claims in the habeas petition and a general assessment of their merits. We look to the District Court’s application of AEDPA to petitioner’s constitutional claims and ask whether that resolution was debatable amongst jurists of reason. This threshold inquiry does not require full consideration of the factual or legal bases adduced in support of the claims. In fact, the statute forbids it. When a court of appeals side steps this process by first deciding the merits of an appeal, and then justifying its denial of a COA based on its adjudication of the actual merits, it is in essence deciding an appeal without jurisdiction. Miller-El v. Cockrell, 537 U.S. 322, 123 S.Ct. 1029, 1039," }, { "docid": "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": "4826693", "title": "", "text": "loan’s servicer, BAC, to properly respond to the Khans’ request for information about the mortgage loan owner. Defendant relies upon the recent opinion issued in Holcomb v. Federal Home Loan Mortgage Corporation, 2011 WL 5080324 (S.D.Fla. Oct. 26, 2011). In Holcomb, the plaintiff served its request for information under § 1641(f)(2) on Wells Fargo Bank, N.A. (“Wells Fargo”) — the loan servicer— who failed to respond. Id. at *1. The plaintiff then sued Federal Home Loan Mortgage Corporation (“Freddie Mac”) as the creditor of the loan, arguing that Freddie Mac was liable for Wells Fargo’s failure as its agent. Id. at *5. The Holcomb court recognized that interpreting Congress’ assignment of liability under § 1641(f)(2) presents a difficult problem: “TILA presents an apparent conundrum by imposing an obligation on servicers to provide information on request but also absolving servicers of any liability under TILA where the servicers are not also the owners of the obligations.” Id. at *6. The court also noted that other courts have attempted to rectify this issue by imposing vicarious liability on the creditor for its servicer’s failure to comply with § 1642(f). See Consumer Solutions REO, LLC v. Hillery, 2010 WL 144988, at *3 (N.D.Cal. Jan. 8, 2010) (“[G]iven that the servicer cannot be held liable for damages for a § 1641(f)(2) violation, and the very nature of such a violation implies the debt- or will not know the identity of and contact information for the owner of the note, the debtor would be left essentially without a remedy absent some form of vicarious liability.”). Nonetheless, the Holcomb court decided that vicarious liability did not apply, “although the resulting difficulties in enforcing (f)(2) are alarming,” because it reasoned that Congress attempted to address the concerns by the May 2009 enactment of 15 U.S.C. § 1641(g), which requires a new creditor, within thirty (30) days following a transfer, sale, or assignment of a loan, to provide the borrower with relevant information regarding the new creditor. The court also explained that its chosen “approach ensures access to information without increasing the risk that some lenders would use" } ]

[ { "docid": "13510744", "title": "", "text": "action against a servicer for a violation of Section 1641(f)(2). Section 1641(f)(2) does not provide for a servicer’s liability for dam ages if it fails to comply with the section’s obligations, 15 U.S.C. § 1641(f)(2), and the only provisions within Section 1641 concerning servicer liability limits a servicer’s liability to situations in which the servicer was once an assignee or owner of the loan. 15 U.S.C. § 1641(f)(1).... Because TILA does not impose liability upon a servicer who is not an owner or assignee of a note, the private right of action that Section 1640(a) creates would be meaningless, unless agency principles permit a creditor to be held liable for Section 1641(f)(2) violations committed by its servicer. To avoid rendering Section 1640(a) superfluous, this Court concludes that agency principles apply, and creditors may be held vicariously liable for the Section 1641(f)(2) violations of their servicers.... This conclusion gives force to the disclosure provision in Section 1641(f)(2) and comports with the intent of TILA to be remedial in nature ... and ... [to] be construed liberally in order to best serve Congress’s intent Davis, 2011 WL 7070221, at *4 (internal citations and quotation marks omitted). Other courts have also applied vicarious liability to TILA. See, e.g., Galeano v. Federal Home Loan Mortgage Corp., No. 12-61174-CIV, 2012 WL 3613890, at *5 (S.D.Fla. Aug. 21, 2012); Khan v. Bank of New York Mellon, 849 F.Supp.2d 1377, 1382 (S.D.Fla.2012); Rinegardr-Guirma v. Bank of America, N.A., No. 3:10-cv-01065-PK, 2012 WL 1110071, at *9 (D.Or. Apr. 12, 2012); Johnson v. Multi-Solutions, Inc., No. 08-5134(AET), 2011 WL 3667554 at *3 (D.N.J. Aug. 22, 2011). This Court chooses to follow the reasoning of the courts finding vicarious liability. There is no question that Congress created a cause of action as set forth in 15 U.S.C. § 1640(a). At the same time, Congress mandated that servicers would not be liable for a TILA violation. 15 U.S.C. § 1641(f). As such, the Court concludes that Congress intended the servicer’s agent to be liable; otherwise, Congress created a cause of action with no one to sue for relief. Lastly, the Court" }, { "docid": "19869007", "title": "", "text": "until the later of; (1) three days following the consummation of the transaction; or (2) the time of delivery of forms for the consumer to exercise the right to rescind, for a period of up to three years. TILA requires creditors to ‘clearly and conspicuously disclose’ the consumer’s right of rescission.” Gorbaty v. Wells Fargo Bank, N.A., Nos. 10-cv-3291, 10-ev-3354, 2012 WL 1372260, at *7 (E.D.N.Y. April 18, 2012) (quoting 15 U.S.C. §§ 1635(a), (f), 1640(a)). “However, TILA exempts from its application ‘a residential mortgage transaction as defined in section 1602(w) of this title.’” Id. (quoting § 1635(e)(1)); Grimes v. Fremont General Corp., 785 F.Supp.2d 269, 284 (S.D.N.Y. Mar. 31, 2011) (“However, certain types of transactions are specifically exempted from this right of rescission [under TILA], including ‘a residential mortgage transaction.’ ”) (quoting § 1635(e)(1)); Ng v. HSBC Mortg. Corp., No. 07-cv-5434, 2010 WL 889256, at *2 (E.D.N.Y. Mar. 10, 2010) (noting that § 1635(a) “is wholly inapplicable in the context of residential mortgages”); Eubanks v. Liberty Mortg. Banking Ltd., 976 F.Supp. 171, 174 (E.D.N.Y.1997) (“Rescission is not an available remedy for residential mortgages.”). “TILA defines ‘residential mortgage transaction’ as a ‘transaction in which a mortgage, deed of trust, purchase money security interest arising under an installment sales contract, or equivalent consensual security interest is created or retained against the consumer’s dwelling to finance the acquisition or initial construction of such dwelling.’ ” Gorbaty, 2012 WL 1372260, at *13 (quoting § 1602(w)) (emphases in the original). Here, Plaintiffs Mortgage Deed and Note falls squarely within TILA’s exemption for a residential mortgage transaction and therefore Plaintiffs Mortgage would not be subject to TILA’s right of rescission. Indeed, Plaintiff has essentially admitted the Mortgage at issue was a “residential mortgage transaction” as she has averred that the Mortgage was incurred was “for personal, family or household purposes.” See [Dkt. # 174, PI. Local Rule 56a(l) Statement at ¶ 3]. In fact, if Plaintiffs Mortgage was not a residential mortgage transaction, Plaintiff would not have any cause of action under the FDCPA in the first place as the FDCPA’s protections only extend to" }, { "docid": "8205566", "title": "", "text": "of foreclosure proceedings (and in this case, over a year after their completion), directly to Defendant, apparently without notifying Defendant’s attorneys, and then initiated the instant suit before Defendant had an opportunity to respond. Nevertheless, this case is meaningfully distinct from Guill-aume. Importantly, Plaintiff sent the original RFI in September of 2015 and received an allegedly inadequate response -from Defendant. Only then did Plaintiff send the follow-up NOE—albeit, months later and after having filed the First Lawsuit—and Plaintiff alleges that it suffered a “meaningful deprivation of information” due to Defendant’s inadequate response to the RFI. See Guillaume, 928 F.Supp.2d at 1341. Moreover, the Court is not faced with the' situation encountered in Guill-aume, where the plaintiff’s federal cause of action appeared intended to elicit favorable results in a related state-court action. See id. at 1342. Courts have found the anti-absurdity doctrine inappropriate in cases such as this because “the clear meaning of the statute should control before one attempts to divine congressional intent.” Manrique v. Wells Fargo Bank N.A., 116 F.Supp.3d 1320, 1323 (S.D.Fla.2015) (declining to apply Guillaume on motion to dismiss) (quoting Gallowitz v. Fed. Home Loan Mortg. Corp., 944 F.Supp.2d 1265, 1267 (S.D.Fla. 2013)). “If these cases are so clearly contrary to congressional intent, one would think that Congress would attempt to rectify erroneous judicial interpretations.” Gallowitz, 944 F.Supp.2d at 1267. Thus, under the facts of this particular case, the Court finds'the anti-absurdity canon inapplicable. See Lucien v. Fed. Nat’l Mortg. Ass’n, 21 F.Supp.3d 1379, 1385 n. 1 (S.D.Fla.2014) (“Nevertheless, TILA and Regulation Z do provide for civil damages for Green Tree’s failure to provide the payoff statement Lucien requested. And, unless and until Congress elects to amend the statute, defendants can avoid cases like this by simply providing the required information when requested.”); see also Galeano v. Fed. Home Loan Morg. Corp., 2012 WL 3613890, at *3 n. 1 (S.D.Fla. Aug. 21, 2012) (declining to consider similar argument because “the sole issue in a Rule 12(b)(6) motion is whether the Complaint states a claim upon which relief can be granted”); Justice v. Ocwen Loan Servicing, 2015 WL" }, { "docid": "2024126", "title": "", "text": "has not yet resolved whether the inverse is also required. In other words, is a mortgagee who holds only legal title without any interest in the underlying debt authorized to foreclose? This Court interprets Massachusetts law to hold that a mortgagee who does not hold the note or service the loan on behalf of the note holder cannot foreclose the mortgage. Numerous courts have held that “Massachusetts law does not require a unity of ownership of a mortgage and its underlying note prior to foreclosure.” Rosa v. Mortgage Elec. Sys., Inc., No. 10-12141-PBS, 821 F.Supp.2d 423, 432, 2011 WL 5223349, at *1 (D.Mass. Sept. 29, 2011) (Saris, J.) (adopting Report and Recommendations of Collins, M.J.); see, e.g., Doust v. Wells Fargo Bank, N.A., No. 10-1882, slip op. (1st Cir. Oct. 31, 2011), available at ECF No. 42-1; Archambault v. Aurora Loan Servs., LLC, No. 11-cv-10373, 2011 WL 4062379, at *1 (D.Mass. Sept. 13, 2011) (Stearns, J.); In re Marron, 455 B.R. at 7; Aliberti, 779 F.Supp.2d at 249; McKenna v. Wells Fargo Bank, N.A., No. 10-10417-JLT, 2011 WL 1100160, at *2 (D.Mass. Mar. 21, 2011) (Tauro, J.); Valerio v. U.S. Bank, N.A., 716 F.Supp.2d 124, 128 (D.Mass.2010) (Gorton, J.); Carlson v. Wells Fargo Bank, N.A., No. 10-41291-MSH, 2011 WL 3420436, at *6 (Bankr.D.Mass. Aug. 2, 2011); Saxon Mortg. Servs., Inc. v. Arazi, No. 10 MISC 442037, 2011 WL 4790651, at *2 (Mass.Land Ct. July 12, 2011) (Piper, J.); Lyons v. Mortgage Elec. Registration Sys., Inc., No. 09 MISC. 416377(JCC), 2011 WL 61186, at *3 (Mass.Land Ct. Jan. 4, 2011) (Cutler, J.); cf. In re Huggins, 357 B.R. 180, 184 (Bankr.D.Mass.2006) (holding that where a mortgagee is acting on behalf of the note holder, “there is no disconnection between note and mortgage,” and the mortgagee may foreclose). But see In re Samuels, 415 B.R. 8, 20 (Bankr.D.Mass.2009) (assuming the trustee must hold both the mortgage and the promissory note to foreclose). A recent Massachusetts Superior Court decision, Eaton v. Federal Nat’l Mortg. Ass’n, No. 11-1382, slip op., 2011 WL 6379284 (Mass.Super.Ct. June 17, 2011) (McIntyre, J.) (appeal pending), available at ECF" }, { "docid": "8205567", "title": "", "text": "to apply Guillaume on motion to dismiss) (quoting Gallowitz v. Fed. Home Loan Mortg. Corp., 944 F.Supp.2d 1265, 1267 (S.D.Fla. 2013)). “If these cases are so clearly contrary to congressional intent, one would think that Congress would attempt to rectify erroneous judicial interpretations.” Gallowitz, 944 F.Supp.2d at 1267. Thus, under the facts of this particular case, the Court finds'the anti-absurdity canon inapplicable. See Lucien v. Fed. Nat’l Mortg. Ass’n, 21 F.Supp.3d 1379, 1385 n. 1 (S.D.Fla.2014) (“Nevertheless, TILA and Regulation Z do provide for civil damages for Green Tree’s failure to provide the payoff statement Lucien requested. And, unless and until Congress elects to amend the statute, defendants can avoid cases like this by simply providing the required information when requested.”); see also Galeano v. Fed. Home Loan Morg. Corp., 2012 WL 3613890, at *3 n. 1 (S.D.Fla. Aug. 21, 2012) (declining to consider similar argument because “the sole issue in a Rule 12(b)(6) motion is whether the Complaint states a claim upon which relief can be granted”); Justice v. Ocwen Loan Servicing, 2015 WL 235738,, at *15 (S.D.Ohio Jan. 16, 2015) (considering similar argument “relevant to any damages that the Justices may have suffered, not whether there was a violation'of'TILA’s mandates”) (citing Gallowitz, Guillaume, and Ga-leano). IV, CONCLUSION For the forgoing reasons, it is ORDERED AND ADJUDGED that Defendant’s Motion to Dismiss, ECF No. [7], is GRANTED. Plaintiff has until July 8, 2016 to file an amended complaint. DONE AND ORDERED in Miami, Florida, this 28th day of June, 2016. . In any event, the Court notes that a servicer \"is only required to comply with the requirements” of § 1024.41 \"on receipt of a loss mitigation application,” and Plaintiff does not claim in liis pleadings or in the RFI that he filed a loss mitigation application. Bennett v. Bank of Am., N.A., 2016 WL 2610238, at *4; 12 C.F.R. § 1024.41 (b)-(j)." }, { "docid": "19356547", "title": "", "text": "of Foreclosure) ¶ 3(d). In light of the Affidavit of Foreclosure, Plaintiff argues only that “no sale at all can be conducted while a HAMP loan modification is pending.” Mem. in Opp’n to Fannie Mae Motion at 16. Plaintiff, however, does not have standing to enforce the HAMP guidelines. “[T]here is no express or implied private right of action to sue lenders or loan servicers for violation of HAMP.” Dodd v. Fed. Home Loan Mortg. Corp., 2011 WL 6370032, at *12 (E.D.Cal. Dec. 19, 2011) (collecting cases). HAMP is a loan modification program designed to reduce delinquent and at-risk borrowers’ monthly mortgage payments. HAMP was authorized by Congress as part of' the Emergency Economic Stabilization Act of 2008, which has the stated purpose of giving the Secretary of the Treasury the “authority and facilities” necessary “to restore liquidity and stability to the financial system of the United States.” 12 U.S.C. § 5201(1). Under the terms of the HAMP agreement and Treasury regulations, [a lender] is required to evaluate borrowers for loan modifications within thirty days, grant loan modifications to qualified borrowers, forebear from foreclosure during the time that an application for a loan modification is pending, and advise loan modification applicants of the prohibition on foreclosure sales (see Dkt. No. 11 (Treasury Department’s Supplemental Directive 10-02)). Newell v. Wells Fargo Bank, N.A., 2012 WL 27783, at *5 (N.D.Cal. Jan. 5, 2012). Any alleged violation of the HAMP guidelines, however, does not create a claim for violation of HRS § 667-5. For example, in Soriano v. Wells Fargo Bank, N.A., 2013 WL 310377, at *9 (D.Haw. Jan. 25, 2013), the court allowed evidence of violations of the HAMP guidelines to proceed on a common law negligence theory, but not as a stand-alone claim. Soriano explained: Among other things, the HAMP guidelines provide that, “[t]o ensure that a borrower currently at risk of foreclosure has the opportunity to apply for HAMP, servicers should not proceed with a foreclosure sale until the borrower has been evaluated for the program and, if eligible, an offer to participate in HAMP has been made.” U.S. Dep’t" }, { "docid": "20301406", "title": "", "text": "that a deed is exempt from Transfer Taxes if it is \"A written instrument in which the grantor is the United States.... ” Defendants have not maintained that this provision provides them the exemption here. As recognized by the district court, this case turns on the interpretation of Congress’ use of \"all taxation” in Fannie's and Freddie’s enabling legislation. Oakland Cnty., 871 F.Supp.2d at 670. .The district court’s March 2012 decision was the first of several federal district court decisions deciding this issue, and the only one of 11 district court decisions to conclude that \"all taxation” does not include state or local real estate transfer taxes. See Hager v. Fed. Nat. Mortg. Assn, 882 F.Supp.2d 107 (D.D.C.2012); Hertel v. Bank of America N.A., 897 F.Supp.2d 579 (W.D.Mich.2012); Nicolai v. Fed. Hous. Fin. Agency, - F.3d -, 2013 WL 899967 (M.D.Fla. Feb. 12, 2013); Fannie Mae v. Hamer, 2013 WL 591979 (N.D.Ill. Feb. 13, 2013); DeKalb Cnty. v. Fed. Hous. Fin. Agency, 3:12-cv-50230 (N.D.I11. Feb. 14, 2013); Delaware Cnty., Pa. v. FHFA, No. 2:12-cv-4554, 2013 WL 1234221 (E.D.Pa. Mar. 26, 2013); Hennepin Cnty. v. Fannie Mae, No. 12-cv-2075, - F.Supp.2d -, 2013 WL 1235589 (D.Minn. Mar. 27, 2013); Vadnais v. Fannie Mae, No. 12-1598, 2013 WL 1249224 (D.Minn. Mar. 27, 2013); Montgomery Cnty., Md. v. Fed. Nat. Mortg. Ass’n, No. DKC 13-0066, 2013 WL 1832370 (D.Md. Apr. 30, 2013); Cape May Cnty., N.J. v. Fed. Nat’l Mortg. Ass’n, No. 12-cv-4712 (D.N.J. Apr. 30, 2013). Defendants also allege there are more than 50 other pending actions in federal courts across the country involving the same issue. Appellant’s Br. at 9. There are also at least three cases, including this one, in federal circuit courts. See Dist. of Columbia ex rel. Hager v. Fed. Nat’l Mortg. Ass’n, No. 12-7095 (D.C.Cir.); State of Nev. ex rel. Hager v. Countrywide Home Loans Serv., L.P., No. 11-17491 (9th Cir.). . The Counties’ opening brief adds the additional argument that even if the panel concludes defendants are exempt, they would still have to pay the tax under the exception in the statute that allows for taxation" }, { "docid": "13510737", "title": "", "text": "other relevant information regarding the new creditor. 15 U.S.C. § 1641(g). A “master servicer” is defined as “the owner of the right to perform servicing, which may actually perform the servicing itself or may do so through a subservicer.” 24 C.F.R. § 3500.21. A subservicer does not own the right to perform the servicing, but does so on behalf of the master servicer. Id. TILA does not impose liability on servicers, but rather on creditors who fail to comply with various requirements under TILA. 15 U.S.C. § 1640(a). With this in mind, the Court begins by disposing of Defendant’s argument that the allegations of the Complaint demonstrate full statutory compliance with TILA. Although the letter sent to Plaintiffs provided AHMSI’s name, address and telephone number, the letter failed to state that AHMSI is the master servicer or identify the name, address and telephone number of the owner. Nonetheless, Defendant claims the letter provided Plaintiffs with adequate information to allow them to conclude that AHMSI is the master servicer on their loan. This argument, however, is a defense that may be raised by Defendant but, at this early stage of the proceedings, the Court cannot resolve this issue as a matter of law Next, the Court will address Defendant’s other basis for dismissal; namely, that the statutory language of TILA does not support vicarious liability for creditors. According to Defendant, as the creditor of Plaintiffs’ mortgage, it cannot be held vicariously liable for damages under section 1602(f)(2) for the alleged failure of AHMSI to respond properly to Plaintiffs’ request for information about the owner of their mortgage. In support, Defendant relies on Holcomb v. Federal Home Loan Mortgage Corp., No. 10-81186-CIV, 2011 WL 5080324 (S.D.Fla. Oct. 26, 2011). In Holcomb, the borrowers on a mortgage sued the owner of their note and mortgage for violations under TILA. The basis of the claim was the failure of the loan servicer to respond properly to the borrowers for the identity of the owner of the note and mortgage. Id. at *1. The borrowers argued that the owner of the note and mortgage was" }, { "docid": "4826695", "title": "", "text": "information requests under (f)(2) as a means to ‘gain leverage rather than an attempt to gain information’ ” Id. at *6, quoting In re Carlton, 2011 WL 3799885 (Bkrtcy.N.D.Ala. Aug. 6, 2011). Thus, the Holcomb court found that creditor Freddie Mac could not be held vicariously liable for servicer Well Fargo’s failure. Id. at *7. Moreover, the court stated that, “even if vicarious liability did apply as between Wells Fargo and Lender, it remains unclear what liability would transfer given that Wells Fargo itself bears no liability under the facts alleged.” Id. Defendant BoNY urges the Court to adopt the reasoning of Judge Hurley in Holcomb and likewise conclude that BoNY, the loan owner, cannot be liable under 15 U.S.C. § 1640(a) for the servicer BAC’s alleged failure to respond to the borrower’s request for loan owner ship information made pursuant to 15 U.S.C. § 1641(f)(2). In response, Plaintiffs argue that this Court should not adopt Holcomb. Plaintiffs contend that Holcomb is the only decision to date to deny agency liability as it applies to 15 U.S.C. § 1641(f)(2). Plaintiffs acknowledge that this point of law is a novel one and this Court will have little guidance from its sister courts. Nonetheless, Plaintiffs urge the Court to adopt the reasoning of a handful of courts who have imposed liability on the creditor for a servicer’s violation of § 1641(f)(2). See Davis v. Greenpoint Mortg. Funding, Inc., 2011 WL 7070221 at *4 (N.D.Ga. Mar. 1, 2011) (“[T]his Court concludes that agency principles apply, and creditors may be held vicariously liable for the Section 1641(f)(2) violations of their servicers.”); Consumer Solutions REO, LLC v. Hillery, 2010 WL 1222739 (N.D.Cal. March 24, 2010) (“[T]he Court rejects [creditor’s position that vicarious liability based on TILA is not possible under § 1641(f)(2).”); Consumer Solutions REO, LLC v. Hillery, 2010 WL 144988, at *3 (N.D.Cal. Jan. 8, 2010) (“There is a fair chance Congress intended vicarious liability....”). Plaintiffs remind the Court that “TILA is a consumer protection statute, and as such must be construed liberally in order to best serve Congress’ intent.” Ellis v. General Motors" }, { "docid": "13510738", "title": "", "text": "a defense that may be raised by Defendant but, at this early stage of the proceedings, the Court cannot resolve this issue as a matter of law Next, the Court will address Defendant’s other basis for dismissal; namely, that the statutory language of TILA does not support vicarious liability for creditors. According to Defendant, as the creditor of Plaintiffs’ mortgage, it cannot be held vicariously liable for damages under section 1602(f)(2) for the alleged failure of AHMSI to respond properly to Plaintiffs’ request for information about the owner of their mortgage. In support, Defendant relies on Holcomb v. Federal Home Loan Mortgage Corp., No. 10-81186-CIV, 2011 WL 5080324 (S.D.Fla. Oct. 26, 2011). In Holcomb, the borrowers on a mortgage sued the owner of their note and mortgage for violations under TILA. The basis of the claim was the failure of the loan servicer to respond properly to the borrowers for the identity of the owner of the note and mortgage. Id. at *1. The borrowers argued that the owner of the note and mortgage was liable for the servicer’s failure because the servicer was its agent. In addressing this argument, the Holcomb court stated, “TILA presents an apparent conundrum by imposing an obligation on servicers to provide information on request but also absolving servicers of any liability under TILA where the servicers are not also the owners of the obligations.” Id. at *6. The Holcomb court noted that other courts have “attempted to rectify this issue by allowing for the possibility of agency liability under TILA.” Id. (citing Consumer Solutions REO, LLC v. Hillery, No. C-08-4357 EMC, 2010 WL 144988, at *3 (N.D.Cal. Jan. 8, 2010)). In rejecting this approach, the Holcomb court observed that Congress has taken its “own approach to rectifying the problem, which has not been to apply agency principles to TILA but rather to add provisions imposing an affirmative duty on transferees — including assignees — to notify borrowers in writing of the transfer.” Id. (citing 15 U.S.C. § 1641(g)). Based on this 2009 amendment, the Holcomb court stated that “[t]his approach ensures access to information" }, { "docid": "20404615", "title": "", "text": "¶¶ 89-105). The FDCPA provides a civil cause of action against debt collectors who violate the provisions of the Act. Owen v. I.C. Sys., Inc., 629 F.3d 1263, 1270 (11th Cir.2011). To assert a claim under the FDCPA, a plaintiff must establish the following elements: “(1) the plaintiff has been the object of collection activity arising from consumer debt, (2) the defendant is a debt collector as defined by the FDCPA, and (3) the defendant has engaged in an act or omission prohibited by the FDCPA.” Janke v. Wells Fargo and Co., 805 F.Supp.2d 1278, 1281 (M.D.Ala.2011); see also Hunt v. 21st Mortg. Corp. 2012 WL 3903783 *5 (N.D.Ala.2012); Kaplan v. Assetcare, Inc., 88 F.Supp.2d 1355, 1360-61 (S.D.Fla.2000). A debt collector is defined as “any person who uses any instrumentality of interstate commerce or the mails in any business the principal purpose of which is the collection of any debts, or who regularly collects or attempts to collect, directly or indirectly, debts owed or due or asserted to be owed or due another.” 15 U.S.C. § 1692a(6). In general, the FDCPA “applies only to debt collectors and not to creditors or mortgage servicers.” Ingram v. Green & Cooper, Attorneys L.L.P., 2012 WL 1884598 *3 (N.D.Ga.2012) (emphasis added); Humphrey v. Wash. Mut. Bank, FA., 2007 WL 1630639 *2 (N.D.Ga.2007); see also Madura v. Lakebridge Condo. Ass’n Inc., 382 Fed.Appx. 862, 864 (11th Cir.2010). “[C]onsumer’s creditors, a mortgage servicing company, or an assignee of a debt are not considered ‘debt collectors, as long as the debt was not in default at the time it was assigned.’” Reese v. JPMorgan Chase & Co., 686 F.Supp.2d 1291, 1307 (S.D.Fla.2009), quoting Monroe v. CitiMortgage, Inc., 2007 WL 1560194 at *2 (M.D.Fla.2007), in turn citing Belin v. Litton Loan Servicing, L.P., 2006 WL 1992410 at *2 (M.D.Fla. 2006). Because there is no allegation Plaintiffs’ debt was in default when it was assigned to Defendant (when SunTrust became the servicer), Plaintiffs cannot state an FDCPA claim against Defendant. Even assuming for the sake of argument that the FDCPA did apply to Defendant, Plaintiffs have failed to present" }, { "docid": "13510745", "title": "", "text": "in order to best serve Congress’s intent Davis, 2011 WL 7070221, at *4 (internal citations and quotation marks omitted). Other courts have also applied vicarious liability to TILA. See, e.g., Galeano v. Federal Home Loan Mortgage Corp., No. 12-61174-CIV, 2012 WL 3613890, at *5 (S.D.Fla. Aug. 21, 2012); Khan v. Bank of New York Mellon, 849 F.Supp.2d 1377, 1382 (S.D.Fla.2012); Rinegardr-Guirma v. Bank of America, N.A., No. 3:10-cv-01065-PK, 2012 WL 1110071, at *9 (D.Or. Apr. 12, 2012); Johnson v. Multi-Solutions, Inc., No. 08-5134(AET), 2011 WL 3667554 at *3 (D.N.J. Aug. 22, 2011). This Court chooses to follow the reasoning of the courts finding vicarious liability. There is no question that Congress created a cause of action as set forth in 15 U.S.C. § 1640(a). At the same time, Congress mandated that servicers would not be liable for a TILA violation. 15 U.S.C. § 1641(f). As such, the Court concludes that Congress intended the servicer’s agent to be liable; otherwise, Congress created a cause of action with no one to sue for relief. Lastly, the Court rejects Defendant’s contention that TILA is unconstitutionally vague and must be stricken. To begin, civil statutes, regulating economic activities, are subject to a less strict vagueness test than criminal statutes. See Village of Hoffman Estates v. Flipside Hoffman Estates, Inc., 455 U.S. 489, 498, 102 S.Ct. 1186, 71 L.Ed.2d 362 (1982); Ford Motor Co. v. Texas Dep. of Transp., 264 F.3d 493, 507 (5th Cir.2001). Moreover, the burden for this Court to strike a statute for vagueness is high. Indeed, the United States Supreme Court has noted that federal courts should interpret federal statutes to avoid serious doubt of their constitutionality. United States v. Rumely, 345 U.S. 41, 45, 73 S.Ct. 543, 97 L.Ed. 770 (1953) (quoting Richmond Screw Anchor Co. v. United States, 275 U.S. 331, 346, 48 S.Ct. 194, 72 L.Ed. 303 (1928); Parker v. Levy, 417 U.S. 733, 94 S.Ct. 2547, 41 L.Ed.2d 439 (1974)). Lastly, the Court does not accept that different rulings by different courts on the interpretation of vicarious liability under TILA mandates a finding of vagueness. This is" }, { "docid": "1544361", "title": "", "text": "§ 1640(a) that imposes civil liability for failure to comply with those obligations, stating:. [A]ny creditor who fails-to comply with any requirement imposed under this part, including ... subsection (f) or (g) of section 1641 of this title ... with respect to any person is liable to such person. 15 U.S.C. § 1640(a). At first blush there appears to be a disjuncture between § 1640(a) and § 1641(f)(2). Section 1640(a), a remedial provision, imposes civil liability on creditors for failure to comply with subsection (f). Yet § 1641(f)(2) imposes a duty only on the servicers of an obligation. Reading these two provisions in isolation and in pañ materia, there might appear to be a gap in the drafting of the statute. Plaintiffs argue that this gap evinces a congressional intent to impose vicarious liability on creditors' and assignees for their servicers’ violations. At least two decisions from this district have endorsed that view. See Khan v. Bank of N.Y. Mellon, 849 F.Supp.2d 1377, 1382 (S.D.Fla.2012) (“Congress meant to ... make creditors liable under § 1641(f)(2) by intentionally inserting the private right of action for violations of § 1641(f)(2) into § 1640(a).”); see also Galeano v. Fed. Home Loan Mortg. Corp., No. 12-cv-61174, 20.12 WL 3613890 (S.D.Fla. Aug. 21, 2012) (explicitly adopting “the Khan line of decisions”). Defendants, in response, urge the Court to adopt the approach set forth in the earlier case of Holcomb v. Federal Home Loan Mortgage Corp., No. 10-cv-81186, 2011 WL 5080324, at *7 (S.D.Fla. Oct. 26, 2011), which declined to expand liability beyond the text of the statute. The Holcomb court reasoned that it “cannot say that Congress intended to make creditors and assignees liable under § 1641(f)(2).” Id. As in Khan and Galeano, the plaintiff in Holcomb sued the mortgage note owner for its servicer’s alleged violations. This Court agrees with the position taken in Holcomb and declines to extend liability to obligation owners — be they creditors or assignees' — -for their servicers’ failures to comply with § 1641(f)(2). The reference to “subsection (f)” in § 1640(a) is best explained by the fact that" }, { "docid": "10797003", "title": "", "text": "state a claim is Affirmed. . See, e.g., Cannon v. Wells Fargo Bank N.A., 917 F.Supp.2d 1025, 1044 (N.D.Cal.2013) (agreeing with \"Wells Fargo that Plaintiffs’ excessive coverage claims are barred”); McKenzie v. Wells Fargo Home Mortg., Inc., No. 11-4965(JCS), 2012 WL 5372120, at *16 (N.D.Cal. Oct. 30, 2012) (\"[A]s a matter of law, Defendants did not breach the contract by simply requiring coverage above the outstanding principal loan balance.”); LeCroix v. U.S. Bank, N.A., 11-3236(DSD/JJK), 2012 WL 2357602, at *4 (D.Minn. June 20, 2012) (\"There is, however, no conflict or ambiguity within the Hazard Provision.... Therefore, the plain meaning of the hazard provision provides U.S. Bank discretion to set the applicable amount of flood insurance, and the complaint fails to state a claim for breach of contract.\"). . See, e.g., Casey v. Citibank, N.A., 915 F.Supp.2d 255, 262 (N.D.N.Y.2013) (\"[I]t is reasonable to interpret the contract language to mean that [the borrower] need only maintain flood insurance coverage in an amount equal to the outstanding principal balance of his loan....”); Morris v. Wells Fargo Bank, N.A., No. 2: 11-cv-474(DSC), 2012 WL 3929805, at *7 (W.D.Pa. Sept. 7, 2012) (\"Here, 'to the extent required by the secretary' in the third sentence reasonably can be read to set a floor or ceiling on the amount of required flood insurance coverage.... In contrast, the third sentence can be interpreted to limit the amount of flood insurance to the lesser of the principal balance or the statutory cap.... At the very least, plaintiff's interpretation is tenable and she has alleged sufficient facts to survive a Rule 12(b)(6) motion on her breach of contract claim.”); Arnett v. Bank of Am., N.A., 874 F.Supp.2d 1021, 1032 (D.Or.2012) (\"Because there are at least two plausible interpretations of the contract, the court finds that the contract is ambiguous. Judgment on the pleadings, therefore, is inappropriate.”); Skansgaard v. Bank of Am., N.A., 896 F.Supp.2d 944, 948 (W.D.Wash.2011) (“Construing the language of the deed of trust in Plaintiff’s favor and giving full meaning to all relevant provisions, Plaintiff has stated a claim for breach of contract.”); Wulf v. Bank of" }, { "docid": "15193787", "title": "", "text": "this title not otherwise administered at the time of the closing of a case is abandoned to the debtor and administered for the purposes of section 350 of this title.” . Compare Sherzer v. Homestar Mortg. Servs., 707 F.3d 255, 258 (3d Cir.2013) (holding that \"the text of [15 U.S.C.] § 1635 and its implementing regulation (Regulation Z) supports the view that to timely rescind a loan agreement, an obligor need only send a valid notice of rescission”), and Gilbert v. Residential Funding LLC, 678 F.3d 271, 278 (4th Cir.2012) (\"[T]he three-year limitation in 15 U.S.C. § 1635 concerns the extinguishment of the right of rescission and does not require borrowers to file a claim for the invocation of that right.”), with McOmie-Gray v. Bank of Am. Home Loans, 667 F.3d 1325, 1328 (9th Cir.2012) (\"[U]nder the case law of this court and the Supreme Court, rescission suits must be brought within three years from the consummation of the loan, regardless [of] whether notice of rescission is delivered within that three-year period.”), and Rosenfield v. HSBC Bank, USA, 681 F.3d 1172, 1188 (10th Cir.2012) (\"[N]otice, by itself, is not sufficient to exercise (or preserve) a consumer’s right of rescission under TILA. The commencement of a lawsuit within the three-year TILA repose period was required.”). . See McKenna v. Wells Fargo Bank, N.A., 693 F.3d 207, 211 (1st Cir.2012) (noting in dicta that a \"federal TILA claim for rescission must be brought within three years of the transaction,” citing 15 U.S.C. § 1635(f)); Large v. Conseco Fin. Servicing Corp., 292 F.3d 49, 54 (1st Cir.2002) (holding that a notice of rescission, by itself, does not void the underlying mortgage transaction). . Compare U.S. Bank Nat'l Ass'n v. James, Civil No. 09-84-P-S, 2009 WL 2448578, at *7 (D.Me. Aug. 9, 2009) (\"[I]t is the exercise of the right of rescission that is limited to three years after the relevant date.... The operative act in exercising the right of rescission is notice to the creditor, not filing an action in court.”), with Mantz, 2011 WL 196915, at *4 (finding plaintiff's claim time-barred as" }, { "docid": "18071765", "title": "", "text": "2011 WL 2690087, at *9 (D.Nev. July 11, 2011) (“N.R.S. § 598 ... applies only to goods and services and not to real estate loan transactions.”); Alexander v. Aurora Loan Services, 2010 WL 2773796, at *2 (D.Nev. July 8, 2010) (“Plaintiffs claim deals with the sale or lease of real property, not goods or services; therefore [N.R.S. § 598] does not provide an avenue of relief to [p]laintiff’). The Nevada Supreme Court recently applied the NDTPA to a real estate transaction — but only to “the deceptive sale of real property.” See Betsinger v. D.R. Horton, Inc., 232 P.3d 433, 436 (Nev.2010). Notwithstanding, the statute has no application to loan servicing or debt collection. See Medina v. Quality Loan Serv. Corp., 2012 WL 5334651, at *2 (D.Nev. Oct. 25, 2012) (distinguishingBetsinger)-, Calavera v. Bank of Am., N.A., 2012 WL 1681813, at *6 (D.Nev. May 14, 2012) (rejecting application of NDTPA to loan servicer, held that “NRS § 598[] only applies to goods and services and not to real estate transactions”); Bernstein v. Noteworld, LLC, 2010 WL 3154518, at *5 (D.Nev. Aug. 9, 2010) (NDTPA “does not regulate debt collection”). Because NDTPA generally does not apply in the real estate context, and does not extend to loan servicing or debt collection, it is inapplicable to the instant action. Plaintiffs’ NDTPA claim fails. 4. Plaintiffs Properly Allege a Violation of the FDCPA Only As To Alhassid Nationstar maintains that Plaintiffs claim for violation of the FDCPA should be dismissed because Nationstar is not a “debt collector” regulated by the statute. To establish a claim under the FDCPA, a plaintiff must allege that “(1) the plaintiff has been the object of collection activity arising from consumer debt, (2) the defendant is a debt collector as defined by the FDCPA, and (3) the defendant has engaged in an act or omission prohibited by the FDCPA.” Kaplan v. Assetcare, Inc., 88 F.Supp.2d 1355, 1360-61 (S.D.Fla.2000). “The FDCPA applies only to debt collectors.” Locke v. Wells Fargo Home Mortgage, 2010 WL 4941456, at *2 (S.D.Fla. Nov. 30, 2010). For FDCPA purposes, a “debt collector” is defined" }, { "docid": "1544362", "title": "", "text": "by intentionally inserting the private right of action for violations of § 1641(f)(2) into § 1640(a).”); see also Galeano v. Fed. Home Loan Mortg. Corp., No. 12-cv-61174, 20.12 WL 3613890 (S.D.Fla. Aug. 21, 2012) (explicitly adopting “the Khan line of decisions”). Defendants, in response, urge the Court to adopt the approach set forth in the earlier case of Holcomb v. Federal Home Loan Mortgage Corp., No. 10-cv-81186, 2011 WL 5080324, at *7 (S.D.Fla. Oct. 26, 2011), which declined to expand liability beyond the text of the statute. The Holcomb court reasoned that it “cannot say that Congress intended to make creditors and assignees liable under § 1641(f)(2).” Id. As in Khan and Galeano, the plaintiff in Holcomb sued the mortgage note owner for its servicer’s alleged violations. This Court agrees with the position taken in Holcomb and declines to extend liability to obligation owners — be they creditors or assignees' — -for their servicers’ failures to comply with § 1641(f)(2). The reference to “subsection (f)” in § 1640(a) is best explained by the fact that the owner of an obligation may sometimes act as the servicer of that obligation. The statute contemplates this scenario in the first paragraph of subsection (f), which reads: “A servicer of a consumer obligation ... shall not be treated as an assignee of such obligation for the purposes of this section unless the servicer is or was the owner of the obligation.” 15 U.S.C. § 1641(f)(1). In the case of an ownerservicer, then, failure to comply with subsection (f) does subject it to liability. See Khan, 849 F.Supp.2d at 1382 n. 2 (“The Court notes that an entity that is both the servicer and lender on a loan would clearly be liable for damages.”); Davis v. Greenpoint Mortg. Funding, Inc., No. 1:09-cv2719, 2011 WL 707221 at *3 (N.D.Ga. Mar. 1, 2011) (noting that subsection (f)(1) “limits a servicer’s liability to situations in which the servicer was once an assignee or owner of the loan”). But there is no question of vicarious liability for the servicer’s violation if the servicer could not itself be held liable." }, { "docid": "530810", "title": "", "text": "cover the lesser of: 1. the outstanding principal balance of the loan; or 2. the maximum amount of coverage allowed for the type of property under the NFIP. Docket No. 58 (Wells Fargo’s RJN, Ex. I) (notice). Plaintiffs’ first argument has been rejected by at least one court — more specifically, by Judge Spero of this District. In McKenzie, Judge Spero agreed with Wells Fargo that a lender has an interest beyond the principal balance. As Defendants point out, if a flood destroys a home and insurance benefits are sufficient to repay only the loan, the lender is left without a performing loan, one that may have been gaining interest at a higher rate than possible under current market conditions. Lenders also incur loan origination costs arising from the premature payment of the loan. McKenzie v. Wells Fargo Home Mortg., Inc., 2012 WL 5372120, at *18, 2012 U.S. Dist. LEXIS 155480, at *58 (N.D.Cal. Oct. 30, 2012). The same rationale was endorsed by the dissenting judge in a recent First Circuit opinion. See Lass v. Bank of Am., 695 F.3d 129, 143 (1st Cir.2012) (Boudin, J., dissenting) (stating that, “[b]y virtue of its provision of the loan and the risks of nonpayment, the lender has an interest both in the loan amount and in the stream of interest payments; both give it ample reason to insist on insurance that goes beyond the balance of the loan and up to the replacement cost”). The Court agrees with Judge Spero and Judge Boudin that a lender’s interest is not limited to the outstanding principal. As for Plaintiffs’ second argument, however, they do have authority in support — in particular, Arnett v. Bank of America, N.A., 874 F.Supp.2d 1021 (D.Or.2012). In Arnett, the plaintiffs argued — as Plaintiffs do here — that the defendants breached the mortgage contract by requiring payment for additional and excessive flood insurance not required by the contract. See id. at 1030-31. In evaluating this argument, the Arnett court appears to have considered the same § 5 and NSFH. Bank of America argued that § 5 gave it the" }, { "docid": "530822", "title": "", "text": "consideration “may be able to state a TILA claim” if they could allege that the bank added the cost of flood insurance premiums to their outstanding principal on their mortgage loan); Travis v. Boulevard Bank, N.A., 880 F.Supp. 1226, 1229-30 (N.D.Ill.1995) (concluding that “the Defendant’s purchase of the allegedly unauthorized insurance and the subsequent addition of the resulting premiums to Plaintiffs’ existing indebtedness constituted a new credit transaction[;J Defendant’s action involved augmenting Plaintiffs’ existing finance charge with an additional finance charge for the resulting premiums”). This position has support from the language of § 226.18(d), which provides that, “[f]or each [credit] transaction, the creditor shall disclose the following information as applicable: ... (d) Finance charge.” 12 C.F.R. § 226.18(d) (emphasis added). In McKenzie, however, Judge Spero held that these cases were limited to situations where the purchase of insurance was unauthorized. Judge Spero rejected the TILA claim at issue in his case because Plaintiffs base their TILA claim on the theory that the letters sent to Plaintiffs notifying them that their coverage was insufficient altered the terms of their loans and Defendants failed to disclose this alteration. However, as discussed previously, the contracts already provided Defendants the authority to require coverage beyond the principal loan balance. The letters sent to Plaintiffs, therefore, did not alter the terms of the loans and no disclosure under TILA was required. See Travis v. Boulevard Bank, N.A., 880 F.Supp. 1226, 1229-30 (N.D.Ill.1995) (requiring post-consummation TILA disclosures under 12 C.F.R. 226.18 only where the defendant force-placed insurance without proper authorization); Wulf v. Bank of Am., N.A., 798 F.Supp.2d 586, 588-89 (E.D.Pa.2011) (same). Accordingly, Plaintiffs’ TILA claim is dismissed with prejudice'. McKenzie, 2012 WL 5372120, at *24, 2012 U.S. Dist. LEXIS 155480, at *75-76. Here, as discussed above, the excessive insurance coverage was authorized. Arguably, however, the kickback and backdating was not. Wells Fargo, however, presents one additional argument — i.e., that “[n]o new TILA disclosures are required when a creditor adds charges to a loan balance as a result of the borrower’s default.\" Docket No. 60 (Mot. at 22) (emphasis added). Although, in its motion," }, { "docid": "1544363", "title": "", "text": "the owner of an obligation may sometimes act as the servicer of that obligation. The statute contemplates this scenario in the first paragraph of subsection (f), which reads: “A servicer of a consumer obligation ... shall not be treated as an assignee of such obligation for the purposes of this section unless the servicer is or was the owner of the obligation.” 15 U.S.C. § 1641(f)(1). In the case of an ownerservicer, then, failure to comply with subsection (f) does subject it to liability. See Khan, 849 F.Supp.2d at 1382 n. 2 (“The Court notes that an entity that is both the servicer and lender on a loan would clearly be liable for damages.”); Davis v. Greenpoint Mortg. Funding, Inc., No. 1:09-cv2719, 2011 WL 707221 at *3 (N.D.Ga. Mar. 1, 2011) (noting that subsection (f)(1) “limits a servicer’s liability to situations in which the servicer was once an assignee or owner of the loan”). But there is no question of vicarious liability for the servicer’s violation if the servicer could not itself be held liable. See Holcomb, 2011 WL 5080324, at *7 (“[I]t remains unclear what liability would transfer given that [the servicer] itself bears no liability under the facts alleged.”). Far from rendering any part of the statute superfluous, see Astoria Fed. Sav. & Loan Ass’n v. Solimino, 501 U.S. 104, 112, 111 S.Ct. 2166, 115 L.Ed.2d 96 (1991), this Court’s interpretation recognizes that § 1640(a)’s reference to subsection (f) creates a private right of action against those obligees who might employ unfair practices in servicing their loans as well as in their issuance and execution. It is true that, as consumer protection statute, TILA should be construed liberally in favor of the consumer, where possible, see Bragg v. Bill Heard Chevrolet, Inc., 374 F.3d 1060, 1068 (11th Cir.2004); Ellis v. Gen. Motors Acceptance Corp., 160 F.3d 703, 707 (11th Cir.1998). As employed by the Eleventh Circuit, this rule of liberal construction serves as a guidepost in interpreting the plain text actually found in the statute. See, e.g., Bragg, 374 F.3d at 1068 (invoking the rule in holding that" } ]

[ { "docid": "22388414", "title": "", "text": "a plaintiff must offer evidence that “give[s] rise to an inference of unlawful discrimination.” Burdine, 450 U.S. at 253, 101 S.Ct. 1089. “The prima facie case may be based either on a presumption arising from the factors such as those set forth in McDonnell Douglas, or by more direct evidence of discriminatory1 intent.” Wallis v. J.R. Simplot Co., 26 F.3d 885, 889 (9th Cir.1994) (citations omitted). “The requisite degree of proof necessary to establish a prima facie case for Title VII ... on summary judgment is minimal and does not even need to rise to the level 'of a preponderance of the evidence.” Id. at 889. Here, Godwin unquestionably established the McDonnell Douglas factors for a prima facie case: (1) she belongs to a protected class, (2) she was performing according to her employer’s legitimate expectations, (3) she suffered-an adverse employment action, and (4) other employees with qualifications similar to her own were treated more favorably. See Sischo-Noumejad v. Merced Community College Dist., 934 F.2d 1104, 1109 n. 7 (9th Cir.1991); see also McDonnell Douglas, 411 U.S. at 802, 93 S.Ct. 1817 (1973). Once Godwin established her prima facie case, the burden then shifted to the defendant to articulate nondiscriminatory reasons for the allegedly discriminatory conduct. See id. Hunt Wesson, in its motion for summary judgment, produced evidence that it chose the male candidates because of their better experience and more “easygoing” personalities. The employer’s articulation of a facially nondiscriminatory reason shifts the burden back to the plaintiff to show that the employer’s reason was a pretext for discrimination. See St. Mary’s, 509 U.S. at 502, 113 S.Ct. 2742. “The ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff remains at all times with the plaintiff.” Id. The district court required Godwin to present substantial direct evidence of discrimination at the pretext stage. After reviewing our cases, we conclude that this ruling is incorrect for it conflates the standards we have articulated for two different types of evidence — circumstantial and direct — available at the pretext stage to prove discriminatory motive. Confusion" } ]

[ { "docid": "23263034", "title": "", "text": "discharged in retaliation for filing a complaint with the EEOC. The district court granted summary judgment in favor of Columbia on all claims. II AGE DISCRIMINATION The allocation of burdens and order of presentation of proof for claims of discrimination arising under the ADEA follow three steps: [A] plaintiff must first establish a prima facie ease of discrimination. If the plaintiff establishes a prima facie case, the burden then shifts to the defendant to articulate a legitimate nondiscriminatory reason for its employment decision. Then, in order to prevail, the plaintiff must demonstrate that the employer’s alleged reason for the adverse employment decision is a pretext for another motive which is discriminatory. Wallis v. J.R. Simplot Co., 26 F.3d 885, 889 (9th Cir.1994) (quoting Lowe v. City of Monrovia, 775 F.2d 998, 1005 (9th Cir.1986)). “The prima facie case may be based either on a presumption arising from the factors such as those set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 1824, 36 L.Ed.2d 668 (1973), or by more direct evidence of discriminatory intent.” Wallis, 26 F.3d at 889 (citing Lowe, 775 F.2d at 1009). Furthermore, “[w]hen a plaintiff does not rely exclusively on the presumption but seeks to establish a prima facie case through the submission of actual evidence, very little such evidence is necessary to raise a genuine issue of fact regarding an employer’s motive; any indication of discriminatory motive ... may suffice to raise a question that can only be resolved by a fact-finder.” Lowe, 775 F.2d at 1009. In this case, Schnidrig clearly established a prima facie case of age discrimination. Schnidrig did not attempt to establish the factors giving rise to a presumption of discrimination. Rather, Schnidrig offered direct evidence of discriminatory motives in the form of statements made by directors and notes taken during Board meetings. Columbia argues that whether Schnidrig chooses to establish a prima facie case through a presumption or through direct evidence of discrimination, he must still show that he is qualified for the job. This argument is premature. Schnidrig established a prima facie case" }, { "docid": "23105860", "title": "", "text": "A fact issue is “material” if its resolution could affect the outcome of the action. We construe all facts and inferences in the light most favorable to the non-moving party when reviewing a summary judgment. III. A claim of employment discrimination can be proven through direct or circumstantial evidence. Where, as here, the plaintiff does not produce any direct evidence of discrimination, we apply the well-known McDonnell Douglas burden-shifting framework as modified and restated by this court. Under the modified McDonnell Douglas approach, the plaintiff must first demonstrate a prima facie case of discrimination; the defendant then must articulate a legitimate, non-discriminatory reason for its decision to terminate the plaintiff; and, if the defendant meets its burden of production, the plaintiff must then offer sufficient evidence to create a genuine issue of material fact that either (1) the employer’s reason is a pretext or (2) that the employer’s reason, while true, is only one of the reasons for its conduct, and another “motivating factor” is the plaintiffs protected characteristic. A. Dr. Pepper concedes that Burrell has established his prima facie case on his failure to promote claim: (1) he belongs to a protected class; (2) he applied for and was qualified for a position for which applicants were being sought; (3) he was rejected; and (4) a person outside of his protected class was hired for the position. Dr. Pepper responds to Burrell’s prima facie case with a legitimate, nondiscriminatory reason for not promoting Burrell to the Vice President of Purchasing Position: Dr. Pepper desired someone with more “purchasing experience in the bottling industry.” Burrell has two methods available to him to try to prove that Dr. Pepper’s proffered reason for failing to promote him was a pretext for racial discrimination: (1) Burrell could show that Dr. Pepper’s proffered explanation is false or “unworthy of credence”; or (2) Burrell could try to prove that he is “clearly better qualified” than the person selected for the position. We first consider whether Burrell produced sufficient evidence to demonstrate that Dr. Pepper’s proffered rationale for its employment decision is false. An employer’s explanation" }, { "docid": "22791353", "title": "", "text": "concluded that Warren had not raised a genuine issue of fact as to whether those reasons were pretextual. Initially, the district court found that the defendants did not know that Warren was of Mexican descent. Warren refutes this finding convincingly, pointing to his own and other affidavits that show that at least certain members of the department, including Warren’s supervisor, knew of his national origin. Warren claims that Fire Chief Thompson knew of his ethnicity both because it came up in conversations Warren had with him and because the fire fighters were a tight-knit group that share personal information about one another among themselves. The district court found that even if the Fire Chief had known of Warren’s Mexican heritage, there was no evidence to suggest that Warren’s national origin was the reason the Fire Chief did not promote him. The City claimed that it did not promote Warren because others were more qualified. The district court found this reason to be legitimate, pointing to affidavits of co-workers that suggested that Warren was not promoted because he was inflexible and lacked interpersonal skills. The district court concluded that Warren had not raised a genuine issue as to whether the City’s proferred reason for his rejection were pretextual. Although “the mere existence of a prima facie case, based on the minimum evidence necessary to raise a McDonnell Douglas presumption, does not preclude summary judgment,” Wallis v. J.R. Simplot Co., 26 F.3d 885, 890 (9th Cir.1994), “the plaintiff [who has established a prima facie case] need produce very little evidence of discriminatory motive to raise a genuine issue of fact” as to pretext. Lindahl, 930 F.2d at 1437. In fact, any indication of discriminatory motive ... may suffice to raise a question that can only be resolved by a factfinder. Once a prima facie ease is established ... summary judgment for the defendant will ordinarily not be appropriate on any ground relating to the merits because the crux of a Title VII dispute is the elusive factual question of intentional discrimination. Id. at 1438 (quoting Lowe, 775 F.2d at 1009) (citation omitted)." }, { "docid": "13164681", "title": "", "text": "rise to a genuine issue of fact as to pretext. Rather Defendants’ reasons for terminating Payne consistently allege that Payne’s attitudes and behaviors towards his employer and other employees were insolent and disrespectful. Payne established his prima facie case of age discrimination by relying on the presumption of discrimination created under the McDonnell Douglas analysis. He has come forward with no additional direct or circumstantial evidence to support his suspicions that he was a victim of age discrimination. Wallis, 26 F.3d at 892. His “mere assertions of discriminatory motive and intent are inadequate to withstand summary judgment.” Foster v. Arcata, 772 F.2d 1453, 1459 (9th Cir.1985), cert. denied, 475 U.S. 1048, 106 S.Ct. 1267, 89 L.Ed.2d 576 (1986), overruled on other grounds by Kennedy v. Allied Mutual Ins. Co., 952 F.2d 262 (9th Cir.1991). Payne has failed to show that a genuine issue of material fact exists as to whether Defendants’ reasons for terminating Payne were a pretext for age discrimination and therefore Defendants’ motion for summary judgment is properly granted on this issue. Wallis, 26 F.3d at 892 (Plaintiff “failed to carry his burden of establishing a triable issue of fact on the ultimate question of whether [Defendant] intentionally discriminated ... against him.”) 4. Sex With respect to sex discrimination, Payne has not established a prima facie ease. Payne was not replaced by a person of the opposite sex, and no inference of sex discrimination can be drawn from the fact two women and two men now perform Payne’s work responsibilities. However, even assuming a prima facie case has been met, Defendants have provided a legitimate, nondiscriminatory reason for Payne’s termination. Therefore, the burden shifts to Plaintiff to set forth specific facts from which a trier of fact could conclude that the Defendants’ proffered reason was pretext, and that Payne was subjected to intentional discrimination on the basis of his sex. As with the age discrimination claim, Plaintiff’s case rests primarily upon his belief that because Defendants wanted to have more women and minorities in upper level management positions, his discharge necessarily means that illegal discrimination occurred. However, it" }, { "docid": "22638933", "title": "", "text": "raise a triable issue of fact. Thus, the mere existence of a prima facie ease, based on the minimum evidence necessary to raise a McDonnell Douglas presumption, does not preclude summary judgment. Indeed, in Lindahl v. Air France, 930 F.2d 1434, 1437 (9th Cir.1991), we specifically held “a plaintiff cannot defeat summary judgment simply by making out a prima facie case.” “[The plaintiff] must do more than establish a prima facie ease and deny the credibility of the [defendant’s] witnesses.” Schuler v. Chronicle Broadcasting Co., 793 F.2d 1010, 1011 (9th Cir.1986). In response to the defendant’s offer of nondiseriminatory reasons, the plaintiff must produce “specific, substantial evidence of pretext.” Steckl v. Motorola, Inc., 703 F.2d 392, 393 (9th Cir.1983). In other words, the plaintiff “must tender a genuine issue of material fact as to pretext in order to avoid summary judgment.” Id. Wallis’ assertion, that once a plaintiff makes out a prima facie case summary judgment is impermissible, is untenable. His position would require a trial in every discrimination case, even where no genuine issue of material fact exists concerning the legitimacy of the employer’s nondiscriminatory reasons. Such a result is not compelled by Sischo-Nownejad and would be contrary to other cases affirming summary judgment where the plaintiff failed to produce evidence of intentional discrimination. See Federal Deposit Ins. Corp. v. Henderson, 940 F.2d 465, 473 n. 16 (9th Cir.1991) (distinguishing Lowe and Sischo-Nownejad); Lindahl, 930 F.2d at 1437 (requiring more than mere prima facie case); Schuler, 793 F.2d at 1011; (requiring more than prima facie case and denial of credibility of employer’s witnesses); Steckl, 703 F.2d at 393 (failing to produce any facts, which if believed, would have shown pretext). There are a number of recent cases in other circuits that have required plaintiffs to come forth with evidence sufficient to permit a rational trier of fact to find the employer’s explanation to be pretextual; the mere fact that a bare prima facie ease had been made out was not in itself sufficient. See Davis v. Chevron U.S.A., 14 F.3d 1082, 1087 (5th Cir.1994) (failing to present more than" }, { "docid": "2970550", "title": "", "text": "was mostly set-up in the Grand Ballroom by the time Stark arrived; and (4) Stark believed that Panache had not confirmed its total number of guests seventy-two hours prior to the event as called for by the contract. C. Panache Has Presented a Genuine Issue of Fact that The Wes-tin’s Non-Discriminatory Reasons Are Pretextual. Once a defendant presents legitimate non-discriminatory reasons, the presumption of discrimination “drops out of the picture,” and the plaintiff has the new burden of proving that the proffered reasons were a pretext for discrimination. St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 510-11, 113 S.Ct. 2742, 125 L.Ed.2d 407 (1993). “[A] plaintiff can prove pretext in two ways: (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.” Chuang, 225 F.3d at 1127 (citation omitted). Although the inference of discrimination created from the prima facie case is gone, the evidence used in its establishment may be considered for examining pretext. Id. (citing Reeves, 530 U.S. at 146-47, 120 S.Ct. 2097) (“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.”); see also Lowe v. City of Monrovia, 775 F.2d 998, 1009 (9th Cir.1985), amended by 784 F.2d 1407 (1986) (“Once a prima facie case is established either by the introduction of actual evidence or reliance on the McDonnell Douglas presumption, summary judgment for the defendant will ordinarily not be appropriate on any ground relating to the merits because the crux of a Title VII dispute is the ‘elusive factual question of intentional discrimination.’ ” (citation omitted)). Nevertheless, “when evidence to refute the defendant’s legitimate explanation is totally lacking, summary judgment is appropriate, even though [the] plaintiff may have established a minimal prima facie case based on a McDonnell Douglas type presumption.” Wallis v. J.R. Simplot Co., 26 F.3d 885, 890-91 (9th" }, { "docid": "22154465", "title": "", "text": "prima facie case is “minimal and does not even need to rise to the level of a prepon-deranee of the evidence.” Lyons v. England, 307 F.3d 1092, 1112 (9th Cir.2002) (quoting Wallis v. J.R. Simplot Co., 26 F.3d 885, 889 (9th Cir.1994)). If established, the prima facie case creates a rebuttable presumption that the employer unlawfully discriminated against the plaintiff. Id. The burden of production then shifts to the employer to articulate a legitimate, nondiscriminatory reason for its action. Id. If the employer meets this burden, the presumption of unlawful discrimination “simply drops out of the picture.” St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 511, 113 S.Ct. 2742, 125 L.Ed.2d 407 (1993). The plaintiff then must produce sufficient evidence to raise a genuine issue of material fact as to whether the employer’s proffered nondiscriminatory reason is merely a pretext for discrimination. Coleman v. Quaker Oats Co., 232 F.3d 1271, 1282 (9th Cir.2000). The plaintiff may show pretext either (1) by showing that unlawful discrimination more likely motivated the employer, or (2) by showing that the employer’s proffered explanation is unworthy of credence because it is inconsistent or otherwise not believable. Godwin v. Hunt Wesson, Inc., 150 F.3d 1217, 1220-22 (9th Cir.1998). Ultimately, the plaintiffs burden is to “produce some evidence suggesting that [the defendant’s] failure to promote [her] was due in part or whole to discriminatory intent.” McGinest, 360 F.3d at 1123. Here, it is undisputed that Dominguez established a prima facie case of discrimination, and that the Department and Stacey articulated a legitimate non-discriminatory reason for their conduct: Phillip Andrews was the more qualified candidate. The district court concluded that Domin guez’s claim fails as a matter of law because she did not present “specific and substantial” evidence that appellees’ explanation for their hiring decision was merely a pretext for gender discrimination. We disagree with the district court’s conclusion. First, the district court erred in requiring that Dominguez’s evidence be both specific and substantial because such a requirement only applies to circumstantial, not direct, evidence of discriminatory motive. Here, Dominguez did not rely on circumstantial evidence; rather," }, { "docid": "23201349", "title": "", "text": "ten criteria: previous performance, supervisory experience, desire to supervise, electric shop assessment, SRP vision, flexibility, leadership, communication skills, technical knowledge, and safety. Against the background of the other evidence of pretext, the subjective nature of these criteria provides further circumstantial evidence that SRP denied Bergene the promotion as a form of retaliation, rather than because of DeGraffs superior qualifications. See Warren v. City of Carlsbad, 58 F.3d 439, 443-44 (9th Cir.1995). Circumstantial evidence of pretext must be specific and substantial in order to survive summary judgment. Godwin, 150 F.3d at 1222. We conclude that this evidence is specific and substantial and therefore sufficient to create a triable issue of fact as to whether SRP’s proffered reason for selecting DeGraff was pretextual. We reverse the district court’s grant of summary judgment for SRP on Bergene’s retaliation claim. B. Discriminatory Denial of Promotion In addition to her claim that the promotion to foreman was in retaliation for her exercise of Title VII rights, Bergene contends that SRP denied her the promotion on account of her sex and that this denial was therefore independently in violation of Title VII. The parties agree that Bergene has established a prima facie case of discrimination and has therefore shifted the burden to SRP, which must produce evidence that Bergene was denied the promotion for a legitimate, nondiscriminatory reason. See Burdine, 450 U.S. at 253-54, 101 S.Ct. 1089. As we have noted, SRP claims that it chose a male, DeGraff, rather than Bergene because DeGraff was better-qualified for the foreman position, as evidenced by the higher ratings that Pratt awarded DeGraff on all but two of the ten factors upon which Pratt based his decision. At this stage, the question before us is whether Bergene has produced sufficient evidence to create a genuine issue of material fact as to whether the reason proffered by SRP for denying her the promotion was a pretext for discrimination. Bergene has presented at least three pieces of circumstantial evidence which, we conclude, constitute specific and substantial evidence that SRP’s purported reason for choosing DeGraff was merely a pretext for discrimination on" }, { "docid": "22638932", "title": "", "text": "articulated reason for its employment decision. Id. at 1111 (internal quotations and citations omitted). However, we went on to state: [I]n evaluating whether the defendant’s articulated reason is pretextual, the trier of fact must, at a minimum, consider the same evidence that the plaintiff introduced to establish her prima facie case. When that evidence, direct or circumstantial, consists of more than the [prima facie ] presumption, a factual question will almost always exist with respect to any claim of nondiseriminatory reason. Id. (internal citation omitted) (emphasis added). Sischo-Nownejad, thus, read as a whole, stands for the proposition that in deciding whether an issue of fact has been created about the credibility of the employer’s nondiseriminatory reasons, the district court must look at the evidence supporting the prima facie ease, as well as the other evidence offered by the plaintiff to rebut the employer’s offered reasons. And, in those cases where the prima facie case consists of no more than the minimum necessary to create a presumption of discrimination under McDonnell Douglas, plaintiff has failed to raise a triable issue of fact. Thus, the mere existence of a prima facie ease, based on the minimum evidence necessary to raise a McDonnell Douglas presumption, does not preclude summary judgment. Indeed, in Lindahl v. Air France, 930 F.2d 1434, 1437 (9th Cir.1991), we specifically held “a plaintiff cannot defeat summary judgment simply by making out a prima facie case.” “[The plaintiff] must do more than establish a prima facie ease and deny the credibility of the [defendant’s] witnesses.” Schuler v. Chronicle Broadcasting Co., 793 F.2d 1010, 1011 (9th Cir.1986). In response to the defendant’s offer of nondiseriminatory reasons, the plaintiff must produce “specific, substantial evidence of pretext.” Steckl v. Motorola, Inc., 703 F.2d 392, 393 (9th Cir.1983). In other words, the plaintiff “must tender a genuine issue of material fact as to pretext in order to avoid summary judgment.” Id. Wallis’ assertion, that once a plaintiff makes out a prima facie case summary judgment is impermissible, is untenable. His position would require a trial in every discrimination case, even where no genuine issue" }, { "docid": "23466031", "title": "", "text": "discrimina tion investigation or proceeding. 42 U.S.C. § 2000e-3(a). A. We turn first to Lam’s appeal of the district court’s grant of summary judgment as to the first search. 1. A prima facie case of unlawful employment discrimination on the basis of protected characteristics may be established through indirect evidence under the familiar McDonnell Douglas four-part test. St. Mary’s Honor Ctr. v. Hicks, — U.S. -, -, 113 S.Ct. 2742, 2747, 125 L.Ed.2d 407 (1993) (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973)). In McDonnell Douglas, the Supreme Court held that the plaintiff can make out a prima facie case by showing that (1) she belongs to a protected class, (2) she applied for and was qualified for a job for which the employer was seeking applicants, (3) despite being qualified, she was rejected, and (4) after her rejection, the position remained open and the employer continued to seek applicants from people of comparable qualifications. 411 U.S. at 802, 93 S.Ct. at 1824. After a prima facie ease is established, “the burden then shifts to the defendant to articulate a legitimate nondiscriminatory reason for its employment decision. Then, in order to prevail, the plaintiff must demonstrate that the employer’s alleged reason for the adverse employment decision is a pretext for another motive which is discriminatory.” Wallis v. J.R. Simplot Co., 26 F.3d 885, 889 (9th Cir.1994) (quoting Lowe v. City of Monrovia, 775 F.2d 998, 1005 (9th Cir.1985), as amended, 784 F.2d 1407 (9th Cir.1986)). On summary judgment, the existence of a discriminatory motive for the employment decision will generally be the principal question. To survive an employer’s summary judgment motion, only a genuine factual issue with regard to discriminatory intent need be shown, a requirement that is almost always satisfied when the plaintiffs evidence, “direct or circumstantial, consists of more than the McDonnell Douglas presumption.” Sischo-Nownejad v. Merced Community College Dist., 934 F.2d 1104, 1111 (9th Cir.1991); compare J.R. Simplot Co., 26 F.3d at 890 (summary judgment appropriate, after showing of a “bare prima facie case,” where evidence to refute defendant’s" }, { "docid": "23251794", "title": "", "text": "any argument on appeal for distinguishing his circumstances. In addition, the Second, Fifth, Sixth, Seventh, and Ninth Circuits have found that Patterson bars § 1981 relief for discriminatory discharge, the Fourth Circuit has so held in an unpublished opinion, and a panel of the Eighth Circuit has criticized that circuit’s prior holding that Patterson does not bar such relief. Accordingly, Weaver’s termination claim is not cognizable under § 1981. B. Weaver’s Title VII Promotion Claims Weaver might have characterized his case as one presenting direct evidence of discrimination, 'thereby triggering the analysis articulated by Price Waterhouse v. Hopkins, but both he and the district court regarded his case as one squarely invoking the presumption approach of McDonnell Douglas Corporation v. Green. Although the distinctions, if any, between a direct-evidence case and a circumstantial-evidence case are in doubt, Weaver’s consistent preference for the McDonnell Douglas characterization leads us to examine his case in that fashion. Under McDonnell Douglas and Texas Department of Community Affairs v. Burdine, “a plaintiff has the initial burden of establishing a prima facie case of racial discrimination by a preponderance of the evidence.” Once established, this raises a presumption that the defendant racially discriminated against the plaintiff. “[T]he burden then shifts to the defendant to rebut the presumption by producing sufficient evidence to raise a genuine issue of fact as to whether the defendant discriminated against the plaintiff ... articulating a ‘legitimate, nondiscriminatory reason’ for its actions against the plaintiff, a reason which is ‘clear and worthy of credence.’ ” This is but a burden of production, and the employer need not persuade the court that it was actually motivated by the reason advanced. “Once the defendant satisfies this burden of production, the plaintiff then has the burden of persuading a court that the proffered reason for the employment decision is a pretext for discrimination.” To establish a prima facie case, the plaintiff “must prove by a preponderance of the evidence that she applied for an available position for which she was qualified, but was rejected under circumstances which give rise to an inference of unlawful discrimination.”" }, { "docid": "22791354", "title": "", "text": "because he was inflexible and lacked interpersonal skills. The district court concluded that Warren had not raised a genuine issue as to whether the City’s proferred reason for his rejection were pretextual. Although “the mere existence of a prima facie case, based on the minimum evidence necessary to raise a McDonnell Douglas presumption, does not preclude summary judgment,” Wallis v. J.R. Simplot Co., 26 F.3d 885, 890 (9th Cir.1994), “the plaintiff [who has established a prima facie case] need produce very little evidence of discriminatory motive to raise a genuine issue of fact” as to pretext. Lindahl, 930 F.2d at 1437. In fact, any indication of discriminatory motive ... may suffice to raise a question that can only be resolved by a factfinder. Once a prima facie ease is established ... summary judgment for the defendant will ordinarily not be appropriate on any ground relating to the merits because the crux of a Title VII dispute is the elusive factual question of intentional discrimination. Id. at 1438 (quoting Lowe, 775 F.2d at 1009) (citation omitted). Thus, Warren’s burden at the summary judgment stage is not great. He cannot, however, rely on generalizations. He must produce evidence of facts that either directly show a discriminatory motive or show that the City’s explanation for his rejection is not credible. Id.; accord Krenik v. County of Le Sueur, 47 F.3d 953, 958 (8th Cir.1995). We conclude that Warren has raised genuine factual questions material to determining whether discrimination motivated his rejection. Warren first presented statistics to show that the reasons the City gave for not promoting him were pretextual. See McDonnell Douglas, 411 U.S. at 805, 93 S.Ct. at 1825-26 (suggesting that statistics as to an employer’s employment policy and practice “may be helpful” in establishing that a particular employment decision was in conformance with a general pattern of discrimination); Lowe, 775 F.2d at 1008 (same); Diaz v. AT & T, 752 F.2d 1356, 1363 (9th Cir.1985) (same). The record reflects that only two men of color work in the entire Carlsbad fire department, and that they occupy the lowest ranking positions. Furthermore," }, { "docid": "13164671", "title": "", "text": "intended to discriminate against him. Id. at 1459 (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-804, 93 S.Ct. 1817, 1824-1825, 36 L.Ed.2d 668 (1973)). In McDonnell Douglas, the Supreme Court first introduced a framework for the allocation of burdens and the order of proof in disparate treatment cases. 411 U.S. 792, 802-804, 93 S.Ct. 1817, 1824-1825. As the case of Wallis v. J.R. Simplot Co., 26 F.3d 885 (9th Cir.1994), recently stated, the three steps for analyzing a claim under Title VII and the Age Discrimination in Employment Act (ADEA) include: [A] plaintiff must first establish a prima facie case of discrimination. If the plaintiff establishes a prima facie case, the burden then shifts to the defendant to articulate a legitimate nondiscriminatory reason for its employment decision. Then, in order to prevail, the plaintiff must demonstrate that the employer’s alleged reason for the adverse employment decision is a pretext for another motive which is discriminatory. Wallis, 26 F.3d at 889 (quoting Lowe v. City of Monrovia, 775 F.2d 998, 1007 (9th Cir.1985), as amended, 784 F.2d 1407 (9th Cir.1986)). The degree of proof necessary to prove a prima facie case is minimal. Id. (citations omitted). The Plaintiff needs to only offer evidence which gives rise to an inference of discrimination. Id. (citation omitted). “The prima facie case may be based either on a presumption arising from the factors such as those set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 [93 S.Ct. 1817, 1824, 36 L.Ed.2d 668] (1973), or by more direct evidence of discriminatory intent.” Wallis, 26 F.3d at 889 (citing Lowe, 775 F.2d at 1009). After the prima facie case is established, if the Defendant offers a legitimate, nondiseriminatory reason for the employment decision, the McDonnell Douglas presumption of discrimination drops out. Id. at 892 (citing St. Mary’s Honor Center v. Hicks, 509 U.S. 502, 113 S.Ct. 2742, 125 L.Ed.2d 407 (1993)). Therefore, “the mere existence of a prima facie ease, based on the minimum evidence necessary to raise a McDonnell Douglas presumption does not preclude summary judgment.” Wallis, 26 F.3d at 890." }, { "docid": "22154464", "title": "", "text": "42 U.S.C. § 2000e-2(a)(1). In responding to a summary judgment motion in a Title VII disparate treatment case, a plaintiff may produce direct or circumstantial evidence demonstrating that a discriminatory reason more likely than not motivated the defendant’s decision, or alternatively may establish a prima facie case under the burden-shifting framework set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). See McGinest, 360 F.3d at 1122. Here, Dominguez relied on the McDonnell Douglas framework. To make out a prima facie case under McDonnell Douglas, a plaintiff must show that (1) she belongs to a protected class; (2) she applied for and was qualified for the position she was denied; (3) she was rejected despite her qualifications; and (4) the employer filled the position with an employee not of plaintiffs class, or continued to consider other applicants whose qualifications were comparable to plaintiffs after rejecting plaintiff. See McDonnell Douglas, 411 U.S. at 802, 93 S.Ct. 1817. At summary judgment, the degree of proof necessary to establish a prima facie case is “minimal and does not even need to rise to the level of a prepon-deranee of the evidence.” Lyons v. England, 307 F.3d 1092, 1112 (9th Cir.2002) (quoting Wallis v. J.R. Simplot Co., 26 F.3d 885, 889 (9th Cir.1994)). If established, the prima facie case creates a rebuttable presumption that the employer unlawfully discriminated against the plaintiff. Id. The burden of production then shifts to the employer to articulate a legitimate, nondiscriminatory reason for its action. Id. If the employer meets this burden, the presumption of unlawful discrimination “simply drops out of the picture.” St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 511, 113 S.Ct. 2742, 125 L.Ed.2d 407 (1993). The plaintiff then must produce sufficient evidence to raise a genuine issue of material fact as to whether the employer’s proffered nondiscriminatory reason is merely a pretext for discrimination. Coleman v. Quaker Oats Co., 232 F.3d 1271, 1282 (9th Cir.2000). The plaintiff may show pretext either (1) by showing that unlawful discrimination more likely motivated the employer, or (2) by showing" }, { "docid": "5482591", "title": "", "text": "reason more likely motivated the employer or indirectly by showing that the employer’s proffered explanation is unworthy of credence.” Texas Dep’t of Community Affairs v. Burdine, 450 U.S. 248, 256, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981). In a summary judgment motion, where the plaintiff provides direct evidence that the defendant acted with discriminatory intent, “a triable issue as to the actual motivation of the employer is created even if the evidence is not substantial.” Godwin v. Hunt Wesson, Inc., 150 F.3d 1217, 1221 (9th Cir.1998). However, where the plaintiff offers only circumstantial evidence that tends to show the defendant’s proffered motive is not reliable, such evidence “must be ‘specific’ and substantial’ in order create a triable issue ...” Id. at 1222. The mere existence of a prima facie case, sufficient to create a presumption of unlawful discrimination, does not suffice to withstand summary judgment. That is, “[a plaintiff] must do more than establish a prima facie case and deny the credibility of the defendant’s witnesses.” Schuler v. Chronicle Broadcasting Co., 793 F.2d 1010, 1011 (9th Cir.1986); Wallis v. J.R. Simplot Co., 26 F.3d 885, 891 (9th Cir.1994). At all times, the burden of persuasion remains with the plaintiff. St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 526, 113 S.Ct. 2742, 125 L.Ed.2d 407 (1993). 1. 1997 GS-9 Promotion Plaintiff alleges that he was denied the promotion to Communications Sector Department Head, SLECA (GS-9), in part, on the basis of his race. Because plaintiff offers no direct evidence that discriminatory criteria motivated Defendant’s decision to promote Gordon Markham over plaintiff, the Court will apply the McDonnell Douglas framework. See Tarin, 123 F.3d at 1264. After reviewing the record in the light most favorable to plaintiff, the Court concludes that plaintiff fails to establish a prima facie case of race discrimination with respect to the 1997 promotion. By plaintiffs own admission, contained in his sworn deposition, he was unqualified for the promotion to GS-9 and Mr. Markham was qualified: Q [T]he qualifications required on page 1 [of “Vacancy Announcement,” No. MSPII-97-SDC-21] ... indicates, “All apphcants must meet the following OPM" }, { "docid": "23466032", "title": "", "text": "ease is established, “the burden then shifts to the defendant to articulate a legitimate nondiscriminatory reason for its employment decision. Then, in order to prevail, the plaintiff must demonstrate that the employer’s alleged reason for the adverse employment decision is a pretext for another motive which is discriminatory.” Wallis v. J.R. Simplot Co., 26 F.3d 885, 889 (9th Cir.1994) (quoting Lowe v. City of Monrovia, 775 F.2d 998, 1005 (9th Cir.1985), as amended, 784 F.2d 1407 (9th Cir.1986)). On summary judgment, the existence of a discriminatory motive for the employment decision will generally be the principal question. To survive an employer’s summary judgment motion, only a genuine factual issue with regard to discriminatory intent need be shown, a requirement that is almost always satisfied when the plaintiffs evidence, “direct or circumstantial, consists of more than the McDonnell Douglas presumption.” Sischo-Nownejad v. Merced Community College Dist., 934 F.2d 1104, 1111 (9th Cir.1991); compare J.R. Simplot Co., 26 F.3d at 890 (summary judgment appropriate, after showing of a “bare prima facie case,” where evidence to refute defendant’s legitimate explanation is “totally lacking”). Because we find that Lam satisfied this requirement, we reverse the district court’s grant of summary judgment to defendants. 2. The district court found that Lam had established a prima facie case of discrimination under the four-part McDonnell Douglas test. It then found that defendants had met their burden of proffering legitimate reasons for - not hiring Lam — specifically, Lam’s lack oí scholarship, and faculty disagreement regarding the desired characteristics of the PALS director — shifting the burden back to Lam to show the existence of a triable issue of fact. Lam submitted evidence of discriminatory bias at two stages of the hiring process, with respect to at least two senior white male professors. Most significantly, Craven testified that Professor A., who headed the appointments committee for a month and disparaged Lam’s abilities before the committee and the faculty as a whole, had a biased attitude toward women and Asians. Indeed, the district court specifically found that “the evidence suggests that Professor A. harbored prejudicial feelings towards Asians and" }, { "docid": "23294278", "title": "", "text": "that she was discriminated against in that she was continuously denied job assignments and training opportunities which led to lower scores during the promotional examination process. She also alleges that the County promoted Clarice Pyles, Beverly Williams, and Sirocco Lopez-Kirk over her, even though they were less qualified than she was for the positions. Ta-rin attributes all these actions to racial animus. In order to prove a prima facie case of discrimination under Title VII, a plaintiff may base her case on direct evidence of discriminatory intent, or on a presumption arising from the factors such as those set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 1824, 36 L.Ed.2d 668 (1973). Wallis v. J.R. Simplot Co., 26 F.3d 885, 889 (9th Cir.1994). Because Tarin has not provided any evidence of direct discriminatory intent toward minorities, we analyze her claim under McDonnell Douglas. Once a plaintiff proves a prima facie case under McDonnell Douglas, a presumption of discrimination is created which a defendant may overcome by articulating a legitimate non-discriminatory reason for its actions. See Wallis, 26 F.3d at 889; see also Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 252-256, 101 S.Ct. 1089, 1093-95, 67 L.Ed.2d 207 (1980) (explaining shifting burdens of production of evidence in cases involving violations of Title VII). In order to survive summary judgment, plaintiff must then show that defendant’s reason was merely a pretext. Wallis, 26 F.3d at 889. Assuming arguendo that Tarin made a prima facie showing of discrimination under McDonnell Douglas — i.e., she belongs to a protected minority, applied for the position of Program Specialist, was qualified for the promotion, and the County hired other candidates with comparable qualifications — she failed to show that the County’s reasons for not promoting her were based on race. We accept that she was discriminated against, but the record supports the conclusion that such discrimination was based solely on her military service. The record is replete with her supervisor’s indignation at her for applying for promotion immediately upon return from military service and permitted personal leave." }, { "docid": "5482590", "title": "", "text": "in McDonnell Douglas Corp. v. Green. Under this standard, a plaintiff first must first establish “a prima facie case sufficient to give rise to an inference of discrimination. ” To establish a prima facie case, a plaintiff must show that: (1) he belongs to a racial minority; (2) he applied for and was qualified for the position that he was denied; (3) he was rejected for the position despite his qualification; and (4) the employer filled the position with a person not of plaintiffs racial group, or continued to seek apphcants of similar qualifications. Tarin v. County of Los Angeles, 123 F.3d 1259, 1264 (9th Cir.1997). Once the plaintiff makes a prima facie case, the burden of production then shifts to the defendant to articulate a legitimate, non-diseriminato-ry reason for the plaintiffs rejection. Once the defendant does so, the burden of production shifts back to the plaintiff to demonstrate that the defendant’s proffered reason for the denial of promotion is pre-textual. A plaintiff may demonstrate pretext “either directly by persuading the court that a discriminatory reason more likely motivated the employer or indirectly by showing that the employer’s proffered explanation is unworthy of credence.” Texas Dep’t of Community Affairs v. Burdine, 450 U.S. 248, 256, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981). In a summary judgment motion, where the plaintiff provides direct evidence that the defendant acted with discriminatory intent, “a triable issue as to the actual motivation of the employer is created even if the evidence is not substantial.” Godwin v. Hunt Wesson, Inc., 150 F.3d 1217, 1221 (9th Cir.1998). However, where the plaintiff offers only circumstantial evidence that tends to show the defendant’s proffered motive is not reliable, such evidence “must be ‘specific’ and substantial’ in order create a triable issue ...” Id. at 1222. The mere existence of a prima facie case, sufficient to create a presumption of unlawful discrimination, does not suffice to withstand summary judgment. That is, “[a plaintiff] must do more than establish a prima facie case and deny the credibility of the defendant’s witnesses.” Schuler v. Chronicle Broadcasting Co., 793 F.2d 1010, 1011" }, { "docid": "22042532", "title": "", "text": "of [the employee] during his prior term of employment ... and [the employer’s] general policy and practice with respect to minority employment,” such as information demonstrating “a general pattern of discrimination against blacks”); Warren, 58 F.3d at 443-44 (holding that plaintiff raised a genuine issue of material fact as to employer’s motive by showing that less-qualified white employees were promoted over him, combined with racist remarks and statistical evidence); Bergene v. Salt River Project Agric. Improvement & Power Dist., 272 F.3d 1136, 1143 (9th Cir.2001) (holding that absence of female supervisors was one factor establishing pretext for failure to promote). We have held that “very Iittle[ ] evidence is necessary to raise a genuine issue of fact regarding an employer’s motive; any indication of discriminatory motive ... may suffice to raise a question that can only be resolved by a fact-finder.” Schnidrig, 80 F.3d at 1409. “When [the] evidence, direct or circumstantial, consists of more than the McDonnell Douglas presumption, a factual question will almost always exist with respect to any claim of a nondiscriminatory reason.” Sischo-Nownejad, 934 F.2d at 1111; see also Lam, 40 F.3d at 1564. As the district court recognized, this is a close case. Such uncertainty at the summary judgment stage must be resolved in favor of the plaintiff. Id. (“We require very little evidence to survive summary judgment precisely because the ultimate question is one that can only be resolved through a ‘searching inquiry’one that is most appropriately conducted by the fact finder, upon a full record.”). Because a number of factors cast doubt upon GTE’s proffered explanation for its failure to promote McGinest, while providing support for his contention regarding racial discrimination, McGinest has met his burden of showing “a genuine factual issue with regard to discriminatory intent.” Lam, 40 F.3d at 1559. B. Retaliation Section 704 of Title VII prohibits retaliation against an employee for opposing unlawful discrimination. 42 U.S.C. § 2000e-3(a) (2003). Like discrimination, retaliation may be shown using the McDonnell Douglas burden shifting framework. To establish a prima facie case of retaliation under Title VII, McGi-nest must show 1) that he" }, { "docid": "22046036", "title": "", "text": "produce any specific, substantial evidence of pretext” where the plaintiff \"produced no facts which, if believed, would have shown pretext and- thus tendered an issue for trial.\" Id. at 393 (emphasis added). Similarly, in Wallis we said that “when evidence to refute the defendant’s legitimate explanation is totally lacking, summary judgment is appropriate even though plaintiff may have established a minimal prima facie case based on a McDonnell Douglas type presumption.” Wallis, 26 F.3d at 890-91 (emphasis added). . See Dominguez-Curry v. Nev Transp. Dep’t, 424 F.3d 1027, 1038 (9th Cir.2005) (noting that \"the district court erred in requiring that Dominguez’s evidence be both specific and substantial because such a requirement only applies to circumstantial, not direct, evidence of discriminatory motive”); Coghlan v. Am. Seafoods Co., 413 F.3d 1090, 1095 (9th Cir. 2005) (stating that the \"distinction between direct and circumstantial evidence is crucial, because it controls the amount of evidence that the plaintiff must present to defeat the employer’s motion for summary judgment. Because direct evidence is so probative, the plaintiff need offer 'very little’ direct evidence to raise a genuine issue of material fact”) (footnote and internal citation omitted); Bo-dett v. CoxCom, Inc., 366 F.3d 736, 743 (9th Cir.2004) (asserting that \"[circumstantial evidence] must be 'specific' and 'substantia! in order to create a triable issue with respect to whether the employer intended to discriminate on the basis of [a prohibited ground].”) (second alteration in original); Stegall, 350 F.3d at 1065-67 (observing that \"[a]lthough ... the Supreme Court’s recent decision in [Costa ] may undermine Godwin to the extent that it implies that direct evidence is more probative than circumstantial evidence, we agree with the Godwin court that Stegall must proffer 'specific' and ‘substantia! evidence of pretext to overcome Marathon’s summary judgment motion.’’); Vasquez, 349 F.3d at 642 (asserting that \"[t]o show pretext using circumstantial evidence, a plaintiff must put forward specific and substantial evidence challenging the credibility of the employer’s motives”). . Cornwell testified by deposition that Sharp held meetings about the reorganization \"with Cindy, and Lesly, Virgina, Rob, but none of those was I included in, nor" } ]

[ { "docid": "9572143", "title": "", "text": "any consequence. See Turner Depo. at 83, 100-02; Carpenter Depo. at 89-90. Thus, Defendant has failed to establish, as a matter of law, that Plaintiffs, as System Support Technicians, are exempt as administrative employees. 3. Overtime Calculation Finally, Defendant argues that Plaintiffs have failed to prove they actually worked the estimated number of overtime hours for which they seek compensation. When records of the exact number of hours worked by an employee are unavailable, resolution of this issue turns on the applicable burden of proof. See Donovan v. Kentwood Dev. Co., Inc., 549 F.Supp. 480, 485 (D.Md.1982). In the absence of an exact record of hours, an employee seeking overtime compensation under the FLSA must prove “that he has in fact performed work for which he was improperly compensated.” Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680, 687, 66 5.Ct. 1187, 90 L.Ed. 1515 (1946). “A pri-ma facie case can be made through an employee’s testimony giving his recollection of hours worked ... [and his case] is not to be dismissed nor should recovery for back pay be denied, because proof of the number of hours worked is inexact or not perfectly accurate.” Donovan, 549 F.Supp. at 485. Once the employee produces evidence of the amount and extent of work, the burden shifts to the employer to “come forward with evidence of the exact number of hours worked or with evidence to negate the reasonableness of the inference to be drawn from the plaintiffs evidence.” Id (citing Anderson, 328 U.S. at 687, 66 S.Ct. 1187). Both Plaintiffs have testified to the hours of overtime they worked while employed by HGS. Although they have not provided evidence corroborating their testimony, they have carried their initial burden of proof and established a prima facie case. Defendant has not, at this stage, produced evidence contradicting or rebutting the inference drawn from Plaintiffs’ testimony. Thus, Defendant has not established as a matter of law that Plaintiffs cannot prove they worked more than 40 hours per week. IV. Conclusion Based on the foregoing reasons, Plaintiffs’ motion to strike Defendant’s unsworn report will be granted" } ]

[ { "docid": "22962363", "title": "", "text": "we reverse the district court’s grant of summary judgment in defendants’ favor as to the lead plaintiffs’ “off the clock” claims and vacate the grant of summary judgment as to the lead plaintiffs’ claim that their time-sheets were improperly altered. I. Factual and Procedural Background The defendants in this case are Ed Donnelly and the corporation that he and his wife own, Ed Donnelly Enterprises, Inc. O’Brien J.A. 150. Defendants bought two McDonald’s stores in Bellefontaine, Ohio in February 2002. O’Brien J.A. 155. For varying lengths of time between 2002 and 2004, plaintiffs worked in at least one of these two stores. They earned wages between $6.25 and $9.00 per hour. O’Brien Appellants’ Br. at 7. Plaintiffs allege that there were two main ways in which defendants and their managers paid plaintiffs less than what they had earned. The first practice involved requiring plaintiffs to work “off the clock,” that is, before they had punched into, or after they had punched out of, the computerized system that tracked employees’ start, end, and break times. The second manner in which plaintiffs claim they were cheated is this: plaintiffs say that defendants electronically altered the times that had previously been entered by the timekeeping system when an employee punched in or out of work. These edits, according to plaintiffs, reduced the total number of hours recorded in the employees’ payroll reports to a number less than what the employees had actually worked. In O’Brien v. Ed Donnelly Enterprises, Inc., and Ed Donnelly, plaintiffs brought the following claims: the first cause of action was for violations of the FLSA; the second, for violations of Ohio’s corresponding wage-payment law, O.R.C. § 4111; the third, for violations of Ohio’s Prompt Pay Act, O.R.C. § 4113.15(B); the fourth, for fraud; the fifth, for breach of contract; and the sixth, for promissory estoppel. The district court initially certified a class of plaintiffs under the FLSA. The ultimate class of plaintiffs (two lead plaintiffs and eight opt-in plaintiffs) moved for sanctions against defendants for spoliation of evidence. This request was denied. After discovery, the district court found that" }, { "docid": "8905846", "title": "", "text": "employees from “stopping work and clocking out before the end of their scheduled shifts” to “make up for any time rounded away on the front end.” (Doc. 63, at 5) (emphasis in original). To be sure, Plaintiffs own time card shows that on several dates in April 2010, she clocked out three or four minutes early. (Doc. 30-2, Ex. B). That still leaves three or four additional minutes while Plaintiff was on-the-clock without pay, but Empress contends that it is not clear whether Plaintiff was actually working during that time. This is a problem with respect to certification, Empress says, because it demonstrates that the Court would need to make individualized inquiries as to whether each plaintiff was working during the extra minutes before and after his or her scheduled shift. (Doc. 55, at 24). In that regard, Empress urges the Court to consider so-called “gap period” cases, which address situations where there is an “interval between an employee’s manual punch in time and his scheduled start time [and] between an employee’s scheduled end time and his manual punch out time.” Babineau v. Federal Express Corp., 576 F.3d 1183, 1186 (11th Cir.2009). In Babineau, for example, there was employee testimony regarding “the various non-work-related activities that took place during the gap periods and the various personal reasons that employees listed for coming in early and staying late.” Id. at 1192. The court affirmed the denial of class certification under Rule 23(b) because “individualized proof would be required to determine whether employees were actually working during the pre- and post-shift gap periods.” Id. at 1191. See also Cornn v. United Parcel Serv., Inc., No. C03-2001-TEH, 2005 WL 2072091, at *2 (N.D.Cal. Aug. 26, 2005) (denying certification under Rule 23(b) where “individual questions predominate[d] over whether time spent on [changing into uniforms, shining shoes and punching in] should be counted as hours worked and, if so, how much time, if any, was spent on these activities and improperly excluded.”). Empress claims that as in Babineau, Dealers and Slot Reps give varying accounts of pre- and post-shift activities performed while clocked in. By" }, { "docid": "14027087", "title": "", "text": "for work required during lunch, and yet another for the employer’s alteration of its employees’ timesheets. Such a narrow interpretation snubs the purpose of FLSA collective actions. The dissent concludes that FTS Technicians’ claims do “not do the trick” because a “company-wide ‘time-shaving’ policy is lawyer talk for a company-wide policy of violating the FLSA.” (Dis. at 419.) But FTS Technicians’ claims do not depend on “lawyer talk”; they are based on abundant evidence in the record of employer mandated work off the clock. That an employer uses more than one method to implement a company-wide work “off-the-cloek” policy does not prevent employees from being similarly situated for purposes of FLSA protection. This is not a new concept to our court or to other courts. In accordance with O’Brien, we have approved damages awards to FLSA classes alleging that employers used multiple means to undercom-pensate for overtime. See, e.g., U.S. Dep’t of Labor v. Cole Enters., Inc., 62 F.3d 775, 778 (6th Cir. 1995) (approving damages award where employers required employees to work uncompensated time both be fore and after their scheduled shifts and to report only the scheduled shift hours on their timesheets). Other circuits and district courts have done so as well. See McLaughlin v. Ho Fat Seto, 850 F.2d 586, 588 (9th Cir. 1988) (affirming damages award where employees gave varied testimony on the means employer used to underpay overtime); Donovan v. Simmons Petroleum Corp., 725 F.2d 88, 84 (10th Cir. 1983) (affirming damages award where employer failed to compensate for overtime both before and after work, at different locations); Wilks v. Pep Boys, No. 3:02-0837, 2006 WL 2821700, at *5 (M.D. Tenn. Sept. 26, 2006) (denying motion to decertify class that alleged employer deprived employees of overtime compensation by requiring them to work off the clock and shaving hours from payroll records). Like the plaintiffs in O’Brien, FTS Technicians’ claims are unified by common theories: that' FTS executives implemented a single, company-wide time-shaving policy to force all technicians—either through direct orders or pressure and regardless of location or supervisor—to underreport overtime hours worked on their time-sheets." }, { "docid": "1833837", "title": "", "text": "of deference in his or her formulation.... Moreover, a single erroneous instruction does not require reversal if the charge as a whole fairly and adequately submits the issue to the jury.” May v. Ark. Forestry Comm’n, 993 F.2d 632, 637 (8th Cir.1993) (internal citations omitted). Reviewing the jury instructions in this case, we find no error. A. No Duty to Examine CAD Logs for Payroll Purposes Plaintiffs claim that the district court erred in instructing the jury from the bench that the County had no legal duty to consult the CAD logs for payroll purposes. They argue that such an instruction precluded them from establishing that the County knew or should have known that they were working overtime. An employee must be compensated for duties “before and after scheduled hours ... if the employer knows or has reason to believe the employee is continuing to work and the duties are an integral and indispensable part of the employee’s principal work activity.” Mumbower v. Callicott, 526 F.2d 1183, 1188 (8th Cir.1975) (internal citations and quotations omitted). Thus, in order to prevail on their overtime claims, Plaintiffs were required to present evidence that they worked above their scheduled hours without compensation and that the County knew or should have known that they were working overtime. See Reich v. Stewart, 121 F.3d 400, 407 (8th Cir.1997); Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680, 687-88, 66 S.Ct. 1187, 90 L.Ed. 1515 (1946), superceded’by statute on other grounds, Portal-to-Portal Act of 1947, Pub.L. No. 49-52, 61 Stat. 87, as recognized in Carter v. Panama Canal Co., 463 F.2d 1289, 1293 (D.C.Cir.1972) (burden of proof). Because constructive knowledge of overtime work is sufficient to establish liability under the FLSA, if the County, through reasonable diligence, should have acquired knowledge that Plaintiffs were working in excess of their scheduled hours, the jury would have been empowered to find th,e County liable. See Stewart, 121 F.3d at 406-07. Plaintiffs claim that the heart of their case was that the CAD records provided evidence of the County’s constructive knowledge of the Plaintiffs’ overtime hours and that by" }, { "docid": "11276352", "title": "", "text": "A-l’s behalf, the record demonstrates that he was listed as a signer on the corporation’s bank accounts and had authority to write out some company checks and to distribute the payroll and commission checks. Even if defendant did not have the authority to determine the employees’ compensation, the court in Saigon Grill following a trial found a defendant who did not determine the employees’ pay rates and workdays liable as an employer within the meaning of the FLSA because he nonetheless “exercised significant managerial authority in operating” two restaurants. Saigon Grill, 595 F.Supp.2d at 246, 265. Here, the Secretary adduced evidence of defendant’s authority to coordi nate and determine work schedules and to control distribution of the payroll and commission cheeks. ■ No evidence to the contrary was introduced by defendant and a reasonable jury could not find in defendant’s favor with respect to this factor, c. Involvement in Day-to-Day Supervision The third Enterprise factor is “the alleged employer’s involvement in day-today employee supervision, including employee discipline.” In her deposition, Lupean testified that “what I know is that [defendant] was involved in the day-to-day operation of A-l.” (Lupean Dep., Defi’s App’x C at 60.) This type of involvement may entail, for example, substantial control of operations and employment conditions, including supervising employees. See, e.g., Falk v. Brennan, 414 U.S. 190, 195, 94 S.Ct. 427, 38 L.Ed.2d 406 (1973) (factoring employee supervision into a finding of “substantial control”). In Selker Brothers, the Court of Appeals for the Third Circuit found “control over the day-to-day operations” where, among other factors, the alleged employers regularly visited gas stations for the purpose of overseeing them. Selker Brothers, 949 F.2d at 1294. In another decision, the United States District Court for the Eastern District of New York held that a defendant, the'.brother of the president and sole shareholder of the company alleged to have violated the FLSA, was an “employer” for FLSA purposes in part because he instructed the employees about the job’s requirements and duties, and the employees reported to him in his brother’s absence. Chao v. Vidtape, Inc., 196 F.Supp.2d 281, 291 (E.D.N.Y.2002)," }, { "docid": "638625", "title": "", "text": "to each. See Matiza v.2001 MAR-OS Fashion, Inc., 2010 WL 502955, at *1 & n. 4 (E.D.N.Y.2010); Ke v. Saigon Grill, Inc., 595 F.Supp.2d 240, 261-62 (S.D.N.Y.2008). Whereas the FLSA places the burden on the employer to show good faith and reasonableness in his conduct through “plain and substantial evidence,” S. New England Telecomms. Corp., 121 F.3d at 71, the Labor Law requires plaintiffs to demonstrate that their employer acted “willfully” in violating the statute. See N.Y. Lab. Law § 198(1— a). Willfulness, in this context, is found “where the employer, ‘knowingly, deliberately, [or] voluntarily’ disregards its obligation to pay wages.” Ayres v. 127 Rest. Corp., 12 F.Supp.2d 305, 309 (S.D.N.Y. 1998) (quoting P & L Group, Inc. v. Garfinkel, 150 A.D.2d 663, 541 N.Y.S.2d 535, 537 (2d Dep’t 1989)); see also Centeno-Bernuy v. Becker Farms, 564 F.Supp.2d 166, 181 (W.D.N.Y.2008) (“[Willfulness [for purposes of liquidated damages] is warranted if substantial evidence tends to demonstrate that the employer knew or should have known that it was violating the law.”) (citing Consol. Masonry Contractors, Inc. v. Angello, 2 A.D.3d 997, 770 N.Y.S.2d 134, 136 (2d Dep’t 2003)). Many courts have found that a defendant’s default, in itself, may suffice to support a finding of willfulness. See, e.g., Blue v. Finest Guard Services, Inc., 2010 WL 2927398, at *11 (E.D.N.Y.2010); Dong v. CCW Fashion Inc., 2009 WL 884680, at *4-5 (S.D.N.Y.2009); but see Aguilar v. E-Z Supply Corp., 2008 WL 905224, at *5 (E.D.N.Y.2008). Here, defendants have failed to demonstrate through plain and substantial evidence that they acted reasonably and in good faith, and thus have not met their burden to avoid imposition of FLSA liquidated damages. To the contrary, defendants only argue, unpersuasively, that plaintiffs did not produce sufficient evidence to establish their entitlement to liquidated damages. Preston Decl. ¶ 21. In any event, the circumstances of this case support a finding of willfulness. Several plaintiffs complained to Dennis about not receiving overtime compensation, and at least one plaintiff was instructed to stop using time sheets entirely because he was working too many hours. E.g., Dep. of Bibi Batool 7:25-8:5, (ct." }, { "docid": "17219196", "title": "", "text": "and the employee cannot offer convincing substitutes ... we hold that an employee has carried out his burden if he proves that he has in fact performed work for which he was improperly compensated and if he produces sufficient evidence to show the amount and extent of that work as a matter of just and reasonable inference. The burden then shifts to the employer to come forward with evidence of the precise amount of work performed or with evidence to negative the reasonableness of the inference to be drawn from the employee’s evidence. If the employer fails to produce such evidence, the court may then award damages to the employee, even though the result be only approximate. Mt. Clemens, 328 U.S. at 687-88, 66 S.Ct. 1187. Because defendants here did not produce admissible records of the hours plaintiff worked, plaintiff must produce “sufficient evidence” to show the hours he worked “as a matter of just and reasonable inference.” Id. Furthermore, it is possible for plaintiff to meet this burden by relying on his recollection alone. See, e.g., Mumbower v. Callicott, 526 F.2d 1183, 1186 (8th Cir.1975) (relying on employee’s recollection was proper, otherwise employers could “benefit from their failure” to maintain required records); Turner v. Human Genome Science, Inc., 292 F.Supp.2d 738, 748 (D.Md.2003) (“ ‘A prima facie case can be made through an employee’s testimony giving his recollection of hours worked ... [and his case] is not to be dismissed nor should recovery for back pay be denied, because proof of the number of hours worked is inexact or not perfectly accurate.’”) (quoting Donovan v. Kentwood Dev. Co., Inc., 549 F.Supp. 480, 485 (D.Md. 1982)). At trial, Yang testified that he was scheduled to work from 9 a.m. until 7 p.m., Monday through Friday, but that he actually ended up having to stay later, until 7:30 or 8 p.m., nearly every day. (Tr. 20, 24.) He estimated that he left work at 7 p.m. only about 30 days per year. (Tr. 24.) As for weekends, Yang testified that he worked from 9 a.m. until 5 p.m. every other Saturday" }, { "docid": "14128107", "title": "", "text": "If the employer fails to produce such evidence, the court may then award damages to the employee, even though the result be only approximate____ The employer cannot be heard to complain that the damages lack the exactness and precision of measurement that would be possible had he kept records in accordance with [29 U.S.C. § 211(c)]. ... It is enough under these circumstances if there is a basis for a reasonable inference as to the extent of the damages. Id. at 687-88, 66 S.Ct. at 1192-93. Admiral kept no records of when a driver signed in and out. Nor did it have any reasonable substitute for recording the number of hours its employees worked. Estimation of total work time in this case therefore must rely on extrapolation from incomplete or unreliable documentary evidence as filled in or clarified by testimony. The magistrate used Admiral’s daily records and payroll records, augmented by assumptions concerning tips and the ratio of waiting time to driving time derived from testimony. Admiral now resorts to work records, augmented by assumptions concerning one-way-only trips and waiting time also drawn from testimony. None of the records employed accurately and adequately indicates actual work time. The magistrate appropriately commented that deriving “with exactitude and precision” overtime compensation owed by Admiral was “absolutely impossible.” Magistrate’s Decision at 39. He shared the view of plaintiffs’ counsel that the chore before him involved “unscrambling the eggs.” Id. Because of the state of Admiral’s records, the drivers were impelled to establish their case by just and reasonable inference from incomplete documentary evidence and their own testimony. They did so. They presented and the magistrate accepted an amalgam of documentary evidence and “the reasonable and credible estimates of the employees ... approximating] an average workweek.” Brennan v. Carl Roessler, Inc., 361 F.Supp. 229, 233 (D.Conn.1973); see also Mumbower v. Callicott, 526 F.2d 1183, 1186 (8th Cir.1975). The drivers supplied sufficient data and testimony for “the trial court [to] make a meaningful decision on damages.” Majchrzak v. Chrysler Credit Corp., 537 F.Supp. 33, 38 (E.D.Mich.1981); see also Reeves v. International Telephone & Telegraph Corp.," }, { "docid": "22962411", "title": "", "text": "its duty to preserve evidence before the O’Brien lawsuit, we do not conclude in the first instance that spoliation did take place. Rather, the district court can consider facts which could suggest that the employer should have anticipated that the missing records needed to be preserved. For in stance, plaintiffs assert that within four to six weeks after buying the McDonald’s stores, defendant Donnelly learned that the prior owners had been sued by a former employee who claimed she had not been paid wages due her. See O’Brien Reply Br. at 7. Plaintiffs also maintain that Donnelly knew that one of his managers was changing employees’ time records by inserting breaks and that one of the managers was making employees work off the clock. See O’Brien Reply Br. at 7, 9-10. If the district court concludes that spoliation did take place, the district court can consider, under its inherent authority, whether it was negligence or bad faith that motivated the defendants and relatedly, what sanction, if any, should be imposed. Adkins v. Wolever, 554 F.3d 650, 653 (6th Cir.2009) (en banc). Plaintiffs also argue that the defendants were under a duty to preserve for longer than 72 days the electronic versions of the TPCA reports. O’Brien Appellants’ Br. at 29. But plaintiffs provide no authority for that proposition. What matters is whether the employer produces the reports in discovery, in either hard copy or electronic form. Defendants also maintain that they did in fact produce payroll records which show the hours worked. O’Brien Resp. Br. at 27. However, the payroll records would not show whether edits were made by defendants to employees’ time-sheets. The TPCA reports are therefore relevant to one of plaintiffs’ theories of how the alleged FLSA violations happened. Defendants may argue that any edits were made for good reason, see id., but the question of whether the edits were proper is separate from defendants’ obligation to produce relevant, non-privileged discovery materials. Finally, defendants argue that of the missing reports, all but two pertain to the time period before the lawsuit was filed. See O’Brien Resp. Br. at" }, { "docid": "638587", "title": "", "text": "643 F.3d at 362. The burden then shifts to the employer to come forward with any evidence to either show “the precise amount of work performed,” or to “negative the reasonableness of the inference to be drawn from the employee’s evidence.” Anderson, 328 U.S. at 687-88, 66 S.Ct. 1187. If the employer fails to produce such evidence, the court may award damages to the employee, even though the result be only approximate. Id. at 688, 66 S.Ct. 1187. “In the absence of rebuttal by defendants,” Chen v. Jenna Lane, Inc., 30 F.Supp.2d 622, 624 (S.D.N.Y.1998), or “where the employer has defaulted, [as here, the employees’] recollection and estimate of hours worked are presumed to be correct,” Pavia v. Around the Clock Grocery, Inc., 2005 WL 4655383, at *5 (E.D.N.Y.2005); see Harold Levinson Assocs., Inc. v. Chao, 37 Fed.Appx. 19, 20 (2d Cir.2002). The Labor Law imposes a higher burden on employers who fail to maintain the appropriate records, requiring that they “bear the burden of proving that the complaining employee was paid wages, benefits and wage supplements.” N.Y. Lab. Law § 196-a. Plaintiffs have each submitted a sworn declaration containing information as to rates of pay and estimates of hours worked based on their recollection. In addition, each plaintiff provided time sheets, punch cards and/or payroll records, to the extent they are available, to support their allegations. These supporting documents, which were produced by defendants, are admittedly incomplete and contain inconsistencies with each other as discussed below. Plaintiffs’ counsel utilized the plaintiffs’ declarations and testimony and the records from defendants to calculate the hours worked by each plaintiff and the wages owed by defendants to them. See Declaration of Jennifer Smith (“Smith Deck”) (ct. doc. 54); Declaration of Christine Clark (“Clark Deck”) (ct. doc. 56). In doing so, counsel relied on the declarations and deposition testimonies of the plaintiffs, but did not rely on the same types of documents or the same methodology in determining damages for all the plaintiffs. As more specifically discussed below as to each plaintiff, I find that plaintiffs have provided a sufficient and reasonable basis" }, { "docid": "22886487", "title": "", "text": "are inaccurate or inadequate, an employee need only present “sufficient evidence to show the amount and extent of [the uncompensated work] as a matter of just and reasonable inference,” id. at 687, 66 S.Ct. 1187. See, e.g., Von Friewalde v. Boeing Aerospace Operations, Inc., 339 Fed.Appx. 448, 455, 460 (5th Cir.2009); Brown v. Family Dollar Stores of Ind., LP, 534 F.3d 593, 594-98 (7th Cir.2008); Allen v. Bd. of Pub. Educ. for Bibb Cnty., 495 F.3d 1306, 1315-18 (11th Cir.2007); Magnoni v. Smith & Laquercia, LLP, 661 F.Supp.2d 412, 417-18 (S.D.N.Y.2009). Consistent with Anderson, an employee’s burden in this regard is not high. See 328 U.S. at 687, 66 S.Ct. 1187 (remedial purpose of FLSA militates against making employee’s burden an “impossible hurdle”). It is well settled among the district courts of this Circuit, and we agree, that it is possible for a plaintiff to meet this burden through estimates based on his own recollection. See, e.g., Canela-Rodriguez v. Milbank Real Estate, No. 09 Civ. 6588(JSR), 2010 WL 3701309, at *2, 2010 U.S. Dist. LEXIS 98884, at *5 (S.D.N.Y. Sept. 20, 2010); Rivera v. Ndola Pharmacy Corp., 497 F.Supp.2d 381, 388 (E.D.N.Y.2007); Magnoni, 661 F.Supp.2d at 417-18. Here, however, the district court determined that Kuebel was not entitled to Anderson’s lenient burden of proof. Relying on Seever v. Carrols Corp., 528 F.Supp.2d 159 (W.D.N.Y.2007), it held that because Kuebel was responsible for filling out his own timesheets and had admittedly falsified them, such that any inaccuracies were “self-created,” a heightened standard applied under which Kuebel must “prove the amount of time he worked off-the-clock with specificity.” Kuebel II, 2010 WL 1930659, at *11, 2010 U.S. Dist. LEXIS 46533, at *32. Because Kuebel could not prove his damages with precision, the district court concluded that summary judgment was appropriate. We disagree with this approach. First, it is important to recognize that an employer’s duty under the FLSA to maintain accurate records of its employees’ hours is non-delegable. See 29 U.S.C. § 211(c); Caserta v. Home Lines Agency, Inc., 273 F.2d 943, 944, 946 (2d Cir.1959) (Friendly, J.) (rejecting as inconsistent with" }, { "docid": "22962412", "title": "", "text": "650, 653 (6th Cir.2009) (en banc). Plaintiffs also argue that the defendants were under a duty to preserve for longer than 72 days the electronic versions of the TPCA reports. O’Brien Appellants’ Br. at 29. But plaintiffs provide no authority for that proposition. What matters is whether the employer produces the reports in discovery, in either hard copy or electronic form. Defendants also maintain that they did in fact produce payroll records which show the hours worked. O’Brien Resp. Br. at 27. However, the payroll records would not show whether edits were made by defendants to employees’ time-sheets. The TPCA reports are therefore relevant to one of plaintiffs’ theories of how the alleged FLSA violations happened. Defendants may argue that any edits were made for good reason, see id., but the question of whether the edits were proper is separate from defendants’ obligation to produce relevant, non-privileged discovery materials. Finally, defendants argue that of the missing reports, all but two pertain to the time period before the lawsuit was filed. See O’Brien Resp. Br. at 26. But as stated above, the district court should consider whether the defendant had a duty to preserve the records even before O’Brien was filed. 2. O’Brien Plaintiffs appeal the district court’s decision to strike portions of an affidavit that O’Brien filed with her summary-judgment papers because they allegedly conflicted with portions of her prior deposition testimony. The district court based its decision on the rule that “a party cannot create a genuine issue of material fact by filing an affidavit, after a motion for summary judgment has been made, that essentially contradicts [her] earlier deposition testimony.” Penny v. United Parcel Serv., 128 F.3d 408, 415 (6th Cir.1997). The district court found that O’Brien “twice testified that the first thing she did when she walked into the restaurant was clock in.” O’Brien v. Ed Donnelly Enters., Inc., No. 2:04-CV-00085, 2007 WL 4510246, at *3 (S.D.Ohio Dec. 18, 2007) (emphasis in the original). The two sources the court looked to were (1) pages 45 and 46 of O’Brien’s deposition testimony in another case, Rogan v. Ed" }, { "docid": "956859", "title": "", "text": "Wage and Hour Division compliance officer who investigated KDC, testified that when he met with Charlene Baden and reviewed company payroll and time records, there were no time sheets for Lobb and Baden told him there were none. (T. 206, 430). Lobb testified that he submitted semimonthly time sheets (T. 182, 192-93). Defendant introduced Lobb’s time sheets for seven of the relevant 25 pay periods at trial (D.Exs. 16, 21, 26, 27, 28, 32, 33), with the explanation that they had later been found misfiled in another file. (T. 337-38). Resolution of the issue concerning Lobb turns on the burden of proof where records of the exact number of hours worked by an employee are unavailable. In Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680, 66 S.Ct. 1187, 90 L.Ed. 1515 (1946), the Supreme Court established a shifting burden of proof for cases in which an employer’s records of time worked are inaccurate or inadequate, in order that an employer not benefit from his failure to keep proper records. The employee must prove “that he has in fact performed work for which he was improperly compensated,” id. at 687, 66 S.Ct. at 1192, and must produce “sufficient evidence to show the amount and extent of that work as a matter of just and reasonable inference,” id. The employer must then come forward with evidence of the exact number of hours worked or with evidence to negate the reasonableness of the inference to be drawn from the plaintiff’s evidence. Id. A prima facie case can be made through an employee’s testimony giving his recollection of hours worked, e.g., Reeves v. International Tel. & Tel. Co., 616 F.2d 1342 (5th Cir.1980), cert. denied, 449 U.S. 1077, 101 S.Ct. 857, 66 L.Ed.2d 800 (1981); Mumbower v. Callicott, 526 F.2d 1183 (8th Cir. 1975); Hodgson v. Humphries, 454 F.2d 1279, 1283 (10th Cir.1972); Wirtz v. Durham Sandwich Co., 367 F.2d 810, 812 (4th Cir. 1966), although the court need not accept every element of the Secretary’s case simply because the employer fails to produce records, Marshall v. Lancarte, 632 F.2d 1196, 1197-98 (5th" }, { "docid": "3347711", "title": "", "text": "paid for the hours worked. See N.Y. Lab. Law § 196-a (2009) (providing that where an employer fails “to keep adequate records ... the employer in violation shall bear the burden of proving that the complaining employee was paid wages, benefits and wage supplements”); see also Jiao v. Chen, No. 03 Civ. 0165(DF), 2007 WL 4944767, at *3 (S.D.N.Y. Mar. 30, 2007) (New York law places a more demanding burden on employers than the FLSA); ACBL Corp., 427 F.Supp.2d at 337 n. 15 (“in the absence of adequate records, New York law places the burden on the employer to show [by a preponderance of the evidence that] the employee was properly compensated”). “If the employer fails to produce such evidence, the court may then award damages to the employee, even though the result may be approximate.” Chen, 2007 WL 4944767, at *2 (quoting Mt. Clemens Pottery, 328 U.S. at 687-88, 66 S.Ct. 1187). B. Plaintiffs Hours and Compensation Except for the period from November 7, 2005 to May 11, 2006, the Court was not provided with any employment records establishing the precise number of hours worked by plaintiff. Defendants allege that they kept a sales book, tip book, and hours book, (Robinson Affirm, Ex. 2, 107:9-14), but left all of the records on the premises when they leased the restaurant to Ms. de Luca. (Robinson Affirm, Ex. 2, 107:15-21.) Since defendants failed to preserve or present employment records for the other periods of plaintiffs employment, plaintiff can rely on her recollection to establish the number of hours worked for those periods. See, e.g., ACBL Corp., 427 F.Supp.2d at 332 (accepting plaintiffs recollection of hours as sufficient evidence when the defendant claimed that the wage records were lost in an office flood); Chen, 2007 WL 4944767, at *7 (finding plaintiffs recollection of hours satisfied his initial burden under Mt. Clemens Pottery when the defendant failed to provide any records establishing the precise number of hours plaintiff worked); Ke v. Saigon Grill, Inc., 595 F.Supp.2d 240, 250 (S.D.N.Y.2008) (finding the testimony of plaintiffs sufficient to meet the initial burden when the employer" }, { "docid": "638589", "title": "", "text": "for determination of damages, particularly in the absence of any admissible evidence disputing the approach used by plaintiffs. Given the limited wage records available, I also find, that for the most part, plaintiff utilized a reasonable methodology in calculating damages. The number of hours claimed by plaintiffs are based on plaintiffs’ declarations, deposition testimonies, sign-in sheets and punehcards. The claimed hourly rates are based almost exclusively on their declarations and testimony which sometimes conflict with the rates in the payroll records. Plaintiffs often rely on the payroll records that defendants supplied to plaintiffs as evidence of the wages actually paid. See Clarke Deck, Ex. 3. Defendants dispute the plaintiffs’ recollections of their hours worked, arguing in their memorandum of law that plaintiffs could not specify which weeks they worked over 40 hours or which days they were not properly compensated for their work. Preston Deck ¶¶ 11-20. However, defendants’ contention that plaintiffs should be able to recall in detail their work hours from several years ago is unrealistic and directly contrary to the Supreme Court’s decision in Anderson. Recognizing that an employee’s burden of proof under the FLSA should not be an “impossible hurdle, the Supreme Court warned that a court should not “penalize the employee by denying him any recovery on the ground that he is unable to prove the precise extent of uncompensated work.” See 328 U.S. at 687, 66 S.Ct. 1187. To do so would serve to “allow the employer to keep the benefits of an employee’s labors without paying due compensation as contemplated by the Fan-Labor Standards Act.” Id. Having failed to maintain and produce appropriate hourly records, defendants “cannot be heard to complain that the damages lack the exactness and precision of measurement that would be possible had he kept records in accordance with [the FLSA’s record-keeping provisions].” Id. at 688, 66 S.Ct. 1187; see also Reich v. Waldbaum, Inc., 833 F.Supp. 1037, 1048 (S.D.N.Y.1993) (rejecting defendant’s argument that plaintiffs calculations lack accuracy). Defendants’ next argue that plaintiffs’ evidence contains internal inconsistencies. Specifically, defendants point to certain hours indicated in the sign-in sheets and punch" }, { "docid": "20897076", "title": "", "text": "time spent on certain tasks, contending that such records are “systemieally” inaccurate because Clark’s supervisors instructed him to spread his time worked among different tasks whether he actually did work for those tasks or not. (R. 326, Clark’s Opp. at 12-13.) Even assuming what Clark says is true, as discussed above, such evidence does not show that any inaccurate coding led to a failure to track all hours worked. Clark himself testified that even in instances where time was allocated to different tasks, technicians still got paid for all the time they worked. (R. 322, Ex. 35, Clark Dep. at 45.) Furthermore, Illinois Bell has presented unrebutted evidence that the payroll system defaults to 40 hours regardless of the task codes entered, unless specific eLink codes are used to indicate exceptions for overtime or unpaid leave. (See R. 343, PSOF Clark ¶¶ 7-8.) Ultimately, Illinois Bell’s alleged failure .to keep accurate records of time spent on tasks does not mean it failed to comply with the FLSA’s requirements for recording the total number of hours worked. Clark’s evidence that managers modified his time records also falls short. Like Blakes, Clark has not presented evidence indicating the nature of the changes made, and merely asserting that managers adjusted certain time entries is, by itself, insufficient to create a genuine issue of material fact. See Marchman v. Advocate Bethany Hosp., No. 04 CV 6051, 2006 WL 1987815, at *6 (N.D.Ill. July 12, 2006). Although Clark contends that the time-sheets are inaccurate because changes were made to them after submission, he offers no evidence to support an inference that the alterations were anything other than legitimate. See O’Brien v. Ed Donnelly Enters., 575 F.3d 567, 595 (6th Cir.2009) (granting summary judgment to defendant on plaintiffs theory that her employer improperly altered her timesheets because she provided no evidence that the time records were altered to her detriment). Nevertheless, Clark gains traction with the argument that his supervisors knew he was not recording time accurately. Viewing the evidence in Clark’s favor, if Velez and Graham discouraged him from accurately recording his overtime, such actions" }, { "docid": "14027088", "title": "", "text": "both be fore and after their scheduled shifts and to report only the scheduled shift hours on their timesheets). Other circuits and district courts have done so as well. See McLaughlin v. Ho Fat Seto, 850 F.2d 586, 588 (9th Cir. 1988) (affirming damages award where employees gave varied testimony on the means employer used to underpay overtime); Donovan v. Simmons Petroleum Corp., 725 F.2d 88, 84 (10th Cir. 1983) (affirming damages award where employer failed to compensate for overtime both before and after work, at different locations); Wilks v. Pep Boys, No. 3:02-0837, 2006 WL 2821700, at *5 (M.D. Tenn. Sept. 26, 2006) (denying motion to decertify class that alleged employer deprived employees of overtime compensation by requiring them to work off the clock and shaving hours from payroll records). Like the plaintiffs in O’Brien, FTS Technicians’ claims are unified by common theories: that' FTS executives implemented a single, company-wide time-shaving policy to force all technicians—either through direct orders or pressure and regardless of location or supervisor—to underreport overtime hours worked on their time-sheets. See O’Brien, 575 F.3d at 584-85; see also Brennan v. Gen. Motors Acceptance Corp., 482 F.2d 825, 829 (5th Cir. 1973) (affirming finding of uncompensated overtime where employees understated overtime because of pressure brought to bear by immediate supervisors, putting upper management on constructive notice of potential FLSA violations). Based on the record as to FTS Technicians’ factual and employment settings, therefore, the district court did not abuse its discretion in finding FTS Technicians similarly situated. 2. Individualized Defenses We now turn to the second factor—the different defenses to which the plaintiffs may be subject on an individual basis. FTS and UniTek argue that they must be allowed to raise separate defenses by examining each individual plaintiff on the number of unrecorded hours they worked, but that they were denied that right by the allowance of representative testimony and an estimated-average approach. Several circuits, including our own, hold that individualized defenses alone do not warrant decertification where sufficient common issues or job traits otherwise permit collective litigation. O’Brien, 575 F.3d at 584-85 (holding that employees" }, { "docid": "11276351", "title": "", "text": "work hours and controlled the employees’ schedule). Like the defendants in Selker Brothers and Saigon Grill, defendant handled A-l scheduling issues such as vacations and dealt with the employees’ hours, their start times, and the lengths of their workdays. The record contains no evidence to the contrary. Defendant’s conduct also evidenced substantial control over the employees’ compensation and A-l’s finances in general. Mrs. Makozy testified that he was an authorized signer on at least one of A-l’s bank accounts and that he at least had the authority to write out the employees’ paychecks. (Makozy Dep., Def.’s App’x D at 45.) The record indicates that defendant personally distributed employees’ payroll and commission checks to them. (Makozy Dep., Def.’s App’x D at 144-50.) See Saigon Grill, 595 F.Supp.2d at 265 (finding a restaurant owner’s wife and another man tasked with managing two of the company’s four restaurants to be employers for FLSA purposes in part because they actually paid the restaurant’s employees their wages). Even though defendant states that he did not personally sign employees’ checks on A-l’s behalf, the record demonstrates that he was listed as a signer on the corporation’s bank accounts and had authority to write out some company checks and to distribute the payroll and commission checks. Even if defendant did not have the authority to determine the employees’ compensation, the court in Saigon Grill following a trial found a defendant who did not determine the employees’ pay rates and workdays liable as an employer within the meaning of the FLSA because he nonetheless “exercised significant managerial authority in operating” two restaurants. Saigon Grill, 595 F.Supp.2d at 246, 265. Here, the Secretary adduced evidence of defendant’s authority to coordi nate and determine work schedules and to control distribution of the payroll and commission cheeks. ■ No evidence to the contrary was introduced by defendant and a reasonable jury could not find in defendant’s favor with respect to this factor, c. Involvement in Day-to-Day Supervision The third Enterprise factor is “the alleged employer’s involvement in day-today employee supervision, including employee discipline.” In her deposition, Lupean testified that “what I" }, { "docid": "8777161", "title": "", "text": "Holiday party; (3) 24 hours spent creating a wall at Pure Power; (4) 11.5 hours of miscellaneous work, including time spent at a Bonus Meeting and a party at the Jericho facility; and (5) 100 hours replacing sandbags. The New York Labor Law (“NYLL”) establishes certain minimum wage rates and, also, requires overtime pay at one-and-a-half times the regular hourly rate for hours worked in excess of forty hours per week. See N.Y. Comp. Codes R. & Regs. tit. 12, § 142-2.2. Under the NYLL, the party seeking compensation has the burden of proving the number of hours worked. See Padilla v. Manlapaz, 643 F.Supp.2d 302, 307 (E.D.N.Y.2009) (interpreting New York law). It is the employer’s responsibility, however, to maintain accurate records of an employee’s hours. See N.Y. Lab. Law § 195(4) (requiring employers to “establish, maintain and preserve for not less than six years contemporaneous, true, and accurate payroll records”). When an employer’s records are inadequate, an employee may meet her burden by producing “sufficient evidence to show the amount and extent of that work as a matter of just and reasonable inference.” Padilla, 643 F.Supp.2d at 307. A plaintiff may meet this burden solely through her own recollection. See id. The burden then shifts to the employer to prove, by a preponderance of the evidence, that the plaintiff was, in fact, paid for the hours allegedly worked. See N.Y. Lab. Law § 196-a (providing that where an employer fails “to keep adequate records ... the employer in violation shall bear the burden of proving that the complaining employee was paid wages, benefits and wage supplements”); see also Jiao v. Shi Ya Chen, No. 03 Civ 0165(DF), 2007 WL 4944767, *3 (S.D.N.Y. Mar. 30, 2007) (noting that New York law places a more demanding burden on employers than the Fair Labor Standards Act). As an initial matter, Pure Power produced its payroll records, which included the hours that Defendants Belliard and Fell worked. Hence, the burden lies with Belliard and Fell to prove the number of unpaid hours worked. Defendants Belliard and Fell, however, have failed to establish the" }, { "docid": "11276350", "title": "", "text": "to specific employees. More importantly with respect to this factor, however, defendant admitted to assisting the employees with any job-related concerns and issues. Defendant trained new A-l loan officers on the use of mortgage origination software and communicated policy information, such as the requirements of the employee dress code, to the employees. See Reich v. Circle C Invs., Inc., 998 F.2d 324, 329 (5th Cir.1993) (affirming the district court’s finding of employer liability under the FLSA where, among other things, the alleged employer gave the employees specific instructions and informed them via inter-office memorandum about fines for violating company rules). Like alleged employers found to be liable under the FLSA in other court decisions, defendant was heavily involved in coordinating and determining employees’ schedules. See Martin v. Selker Brothers, Inc., 949 F.2d 1286, 1294 (3d Cir.1991) (finding “pervasive ... control over the day-to-day operations” where, among other factors, the alleged employers regularly visited gas stations for the purpose of overseeing them); Saigon Grill, 595 F.Supp.2d at 265 (one defendant, a restaurant owner’s wife, controlled assigned work hours and controlled the employees’ schedule). Like the defendants in Selker Brothers and Saigon Grill, defendant handled A-l scheduling issues such as vacations and dealt with the employees’ hours, their start times, and the lengths of their workdays. The record contains no evidence to the contrary. Defendant’s conduct also evidenced substantial control over the employees’ compensation and A-l’s finances in general. Mrs. Makozy testified that he was an authorized signer on at least one of A-l’s bank accounts and that he at least had the authority to write out the employees’ paychecks. (Makozy Dep., Def.’s App’x D at 45.) The record indicates that defendant personally distributed employees’ payroll and commission checks to them. (Makozy Dep., Def.’s App’x D at 144-50.) See Saigon Grill, 595 F.Supp.2d at 265 (finding a restaurant owner’s wife and another man tasked with managing two of the company’s four restaurants to be employers for FLSA purposes in part because they actually paid the restaurant’s employees their wages). Even though defendant states that he did not personally sign employees’ checks on" } ]

[ { "docid": "15002618", "title": "", "text": "of summary judgment, they failed to meet their threshold burden of proof regarding the loss of contents; the district court did not err in concluding that there was no genuine issue of material fact regarding uncompensated loss of contents. Lastly, the district court properly granted summary judgment on the Bradleys’ ALE claim because they advanced no summary judgment evidence creating a genuine issue of material fact regarding uncompensated ALE. For the reasons discussed above, the district court’s grant of summary judgment is VACATED and REMANDED for consideration consistent with this opinion as to the breach of contract'and related bad faith claims for uncompensated structural damage to the Bradleys’ home. The summary judgment is AFFIRMED with respect to the claim for loss of contents and ALE and the associated claims of bad faith. . This provision has been recently recodified as § 22:1892, but is referred to here as § 22:658. . When sitting in diversity, this Court applies the substantive law of the state. In re Katnna Canal Breaches Litig., 495 F.3d 191, 206 (5th Cir.2007) (citing Erie R.R. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938)). As stated in In re Katrina Canal Breaches Litigation: To determine Louisiana law, we look to the final decisions of the Louisiana Supreme Court. See id. In the absence of a final decision by the Louisiana Supreme Court, we must make an Erie guess and determine, in our best judgment, how that court would resolve the issue if presented with the same case. See id. In making an Erie guess, we must employ Louisiana’s civilian methodology, whereby we first examine primary sources of law: the constitution, codes, and statutes. Id. (quoting Lake Charles Diesel, Inc. v. Gen. Motors Corp., 328 F.3d 192, 197 (5th Cir.2003)); Prytania Park Hotel, Ltd. v. Gen. Star Indem. Co., 179 F.3d 169 (5th Cir.1999). “Jurisprudence, even when it rises to the level of jurisprudence constante, is a secondary law source in Louisiana.” Prytania Park Hotel, 179 F.3d at 169 (footnote omitted); see also Am. Int’l Specialty Lines Ins. Co., [352 F.3d 254, 261 (5th" } ]

[ { "docid": "21779354", "title": "", "text": "8(a)(2) requires that a pleading contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” “To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ ” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). “Determining whether a complaint states a plausible claim for relief [is] ... a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.” Iqbal, 556 U.S. at 679, 129 S.Ct. 1937. A complaint need not contain “detailed factual allegations,” but must include enough facts “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).” Twombly, 550 U.S. at 555, 127 S.Ct. 1955 (internal citation and footnote omitted). Moreover, “the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions.” Iqbal, 556 U.S. at 678, 129 S.Ct. 1937. “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Id.; see also Twombly, 550 U.S. at 555, 127 S.Ct. 1955 (“[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.”). The Supreme Court has employed a “two-pronged approach” in applying the foregoing principles: first, a reviewing court should eliminate any allegations in the complaint that are merely legal conclusions; and second, where there are well-pleaded factual allegations, “assume their veracity and then determine whether they plausibly give rise to an entitlement to relief.” Iqbal, 556 U.S. at 679, 129 S.Ct. 1937. We generally review a district court’s decision to deny leave to amend for abuse of discretion, but review de novo an order denjdng leave" }, { "docid": "22257752", "title": "", "text": "counts on July 20, 2012. Conlin v. Mortg. Elec. Regis. Sys., Inc., No. 11-CV-15352, 2012 WL 3013920 (E.D.Mich. July 20, 2012). Plaintiff timely appealed, invoking this Court’s jurisdiction under 28 U.S.C. § 1291. DISCUSSION A. Standard of Review and Applicable Law We review a ruling on a Federal Rule of Civil Procedure 12(b)(6) motion to dismiss de novo. Casias v. Wal-Mart Stores, Inc., 695 F.3d 428, 435 (6th Cir.2012). Though a complaint need not contain “ ‘detailed factual allegations’ ” to be sufficient, it must go beyond mere “ ‘labels and conclusions.’ ” Id. (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). “Following Twombly and Iqbal, it is well settled that ‘a complaint must contain sufficient factual matter, accepted as true, to “state a claim to relief that is plausible on its face.”’” Ctr. for Bio-Ethical Reform v. Napolitano, 648 F.3d 365, 369 (6th Cir.2011) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (in turn quoting Twombly, 550 U.S. at 570, 127 S.Ct. 1955)). “A claim is plausible on its face if the ‘plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.’ ” Id. (quoting Iqbal, 556 U.S. at 678, 129 S.Ct. 1937). Where, as here, federal jurisdiction is based on diversity, this Court applies the substantive law of the forum state&emdash;in this case, Michigan. Savedoff v. Access Grp., Inc., 524 F.3d 754, 762 (6th Cir.2008) (citing Erie R.R. Co. v. Tompkins, 304 U.S. 64, 78, 58 S.Ct. 817, 82 L.Ed. 1188 (1938)). In resolving issues of Michigan law, we look to the final decisions of that state’s highest court, and if there is no decision directly on point, then we must make an Erie guess to determine how that court, if presented with the issue, would resolve it. See id. In making this determination, “[i]ntermediate state appellate courts’ decisions are also viewed as persuasive unless it is shown that the state’s highest court would decide the issue differently.” Id. (internal" }, { "docid": "20592926", "title": "", "text": "is plausible on its face.’ ” Gogos v. AMS Mech. Sys., Inc., 737 F.3d 1170, 1172 (7th Cir.2013) (per curiam) (alterations omitted) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009)). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678, 129 S.Ct. 1937. Applying this standard, we first accept all well-pleaded facts in the complaint as true and then ask whether those facts state a plausible claim for relief. See id. at 679, 129 S.Ct. 1937; Santana v. Cook Cty. Bd. of Review, 679 F.3d 614, 620 (7th Cir.2012). Allegations that state “legal conclusions” or “[t]hreadbare recitals of the elements of a cause of action” are not entitled to the assumption of truth. Iqbal, 556 U.S. at 678, 129 S.Ct. 1937. As this analysis suggests, the plausibility standard does not allow a court to question or otherwise disregard nonconclusory factual allegations simply because they seem unlikely. See id. (“The plausibility standard is not akin to a ‘probability requirement’-”). Rather, “a well-pleaded complaint may proceed even if it strikes a savvy judge that actual proof of those facts is improbable, and that a recovery is very remote and unlikely.” Alam v. Miller Brewing Co., 709 F.3d 662, 666 (7th Cir.2013) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). Here, Mr. Meyer’s counterclaim alleged (1) that Firestone vice president Dan McAllister had represented that Firestone “wanted to expand [its] investment in the laundry business,” and that it “would create a $500,000 line of credit” to fund the defendants’ equipment purchases in 2013, and (2) that after “establishment of the line of credit was delayed, McAllister represented to JHM that if JHM purchased the equipment necessary to expand its business, Firestone would finance equipment packages in 2013 on the same terms and conditions as the First and Second Loans.” These allegations are neither legal assertions nor conclusory statements reciting the elements of a" }, { "docid": "14241633", "title": "", "text": "Civil Code Article 2652 (“Article 2652”), did not apply to a sale made “within the framework of a bankruptcy case under Chapter 11 of the Bankruptcy Code,” and thus, CHS had failed to plead a plausible claim for relief. CHS timely appealed. II. Standard of Review A dismissal for failure to state a claim is reviewed de novo. Gearlds v. Entergy Servs., Inc., 709 F.3d 448, 450 (5th Cir.2013). “To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (internal quotation marks omitted). “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. The complaint need not contain detailed factual allegations, but it must provide more than conclusions. Gearlds, 709 F.3d at 450. When evaluating issues of state law, federal courts “look to the final decisions of that state’s highest court.” Chaney v. Dreyfus Serv. Corp., 595 F.3d 219, 229 (5th Cir.2010). “In the absence of such a decision, “we must make an Erie guess and determine, in our best judgment, how [the highest state court] would resolve the issue if presented with the same case.’ ” Six Flags, Inc. v. Westchester Surplus Lines Ins. Co., 565 F.3d 948, 954 (5th Cir.2009) (quoting In re Katrina Canal Breaches Litig., 495 F.3d 191, 206 (5th Cir.2007)). If we are to make an Erie guess with respect to the application of Louisiana law, we must employ the jurisdiction’s “civilian methodology” and “examine primary sources of law: the constitution, codes, and statutes.” Bradley v. Allstate Ins. Co., 620 F.3d 509, 517 n. 2 (5th Cir.2010). We may also consider intermediate state appellate court decisions, although we are not bound by them. Id. III. Discussion The parties’ dispute focuses on whether SLE’s sale of the option contract to Plaquemines constitutes the assignment of a litigious right, and, if so, whether CHS may" }, { "docid": "14266965", "title": "", "text": "19 F.Supp.3d 231, 245-51 (D.D.C. 2014) (Banneker II). Banneker filed a timely notice of appeal. Our jurisdiction rests on 28 U.S.C. § 1291. II. Legal Standards We review de novo the district court’s Rule 12(b)(6) dismissal of Banneker’s claims. Fed.R.Civ.P. 12(b)(6); Muir v. Navy Fed. Credit Union, 529 F.3d 1100, 1108 (D.C.Cir.2008). The Federal Rules of Civil Procedure require that a complaint contain a “short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). Except for allegations of fraud or mistake, see Fed.R.Civ.P. 9(b), we do not require “detailed factual allegations” for a claim to survive a motion to dismiss. Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). We accept all the well-pleaded factual allegations of the complaint as true and draw all reasonable inferences from those allegations in the plaintiffs favor. Id. Nevertheless, “[t]hreadbare recitals of the elements of a cause of action, suppox-ted by mere eonclusory statements, do not suffice,” nor do we assume the truth of legal conclusions. Id. Thus, “[t]o survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ ” Id. (quoting Twombly, 550 U.S. at 570, 127 S.Ct. 1955). Plausibility requires “more than a sheer possibility that a defendant has acted unlawfully,” but it is not a “probability requirement.” Id. (quoting Twombly, 550 U.S. at 556, 127 S.Ct. 1955). A claim crosses from conceivable to plausible when it contains factual allegations that, if proved, would “allow[ ] the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. The Twombly Court stated that a well-pleaded complaint should be allowed to proceed “even if it strikes a savvy judge that actual proof of [the alleged] facts is improbable, and that a recovery is very remote and unlikely.” 550 U.S. at 556, 127 S.Ct. 1955 (internal quotation marks omitted). A complaint survives a" }, { "docid": "18078879", "title": "", "text": "for costs in particular. Id. at 19. • Finally, Fluor argues that Louisiana law has no bearing on its entitlement to payment under the FEMA contract, which is governed by federal common law. Id. at 19-24. Shaw has filed its own motion for summary judgment that raises this final argument. Rec. Doc. 351. In opposition, relators maintain that Spicer is, for various reasons, inapposite. Rec. Doc. 355-1 at 1-5. They further argue that Fluor was not entitled to payments for non-conforming services in light of the absence of express language providing for such entitlement. Id. at 7-9. Finally, they argue in various ways that the LP regulations that Fluor allegedly violated were so central to the requirements for performance that there is no way they could not have affected Fluor’s entitlement to either fixed fees or cost-reimbursement. Id. at 9-24. Relators have not responded to either Shaw or Fluor’s choice of law argument. II. STANDARD OF REVIEW A. Rule 12(b)(6) Dismissal When considering a Rule 12(b)(6) motion to dismiss, the court must take the well-pleaded factual allegations of the complaint as true, viewing them in the light most favorable to the plaintiff. In re Katrina Canal Breaches Litigation, 495 F.3d 191, 205 (5th Cir.2007) (citations and quotation marks-omitted). Plaintiffs pleading must provide “enough facts 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). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (citing Twombly, 550 U.S. at 556, 127 S.Ct. 1955). On the other hand, a “pleading that offers ‘labels and conclusions’ or a ‘formulaic recitation of the elements of a cause of action will not do.’ ” Id. Courts “are not bound to accept as true a legal conclusion couched as a factual allegation.” Id. (internal quotation marks omitted). “In considering a motion to dismiss for" }, { "docid": "23320385", "title": "", "text": "respect to lawsuits against the insurer, “[t]he action must be started within one year after the date of loss or damage.” The policy also stated that when a policy provision conflicted with the applicable state law, the state law would govern. II. We review a district court’s grant or denial of summary judgment de novo, applying the same standard as the district court. Am. Int’l Specialty Lines Ins. Co. v. Canal Indem. Co., 352 F.3d 254, 259-60 (5th Cir.2003). Summary judgment is appropriate if there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). The facts and evidence must be taken in the light most favorable to the non-movant. Am. Int’l Specialty, 352 F.3d at 260. When, as here, jurisdiction is based on diversity, we apply the substantive law of the forum state. Erie R. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938). To determine Louisiana law, we look to the final decisions of Louisiana’s highest court. Am. Int’l Specialty, 352 F.3d at 260. In the absence of a final decision by that court addressing the issue at hand, a federal court must determine, in its best judgment, how the state’s highest court would resolve the issue if presented with it. Id. As the Louisiana Supreme Court has not addressed the retroactive applicability of Act 43, the district court had to make an “Eñe guess”; on appeal, we do the same, de novo. III. Article 6 of the Louisiana Civil Code sets out the governing rule of statutory construction applicable to this case. That article, titled “Retroactivity of laws,” states: In the absence of contrary legislative expression, substantive laws apply prospectively only. Procedural and interpretative laws apply both prospectively and retroactively, unless there is legislative expression to the contrary. A court’s application of Article 6 requires a two-fold inquiry. Cole v. Celotex Corp., 599 So.2d 1058, 1063 (La.1992). First, the court must ascertain whether in the enactment, the legislature expressed its intent regarding retroactive or prospective application. If" }, { "docid": "8456764", "title": "", "text": "nonmoving party.” Cox v. Wal-Mart Stores E., L.P., 755 F.3d 231, 283 (5th Cir.2014). “Summary judgment may not be thwarted by eonclusional allegations, unsupported assertions, or presentation of only a scintilla of evidence.” McFaul v. Valenzuela, 684 F.3d 564, 571 (5th Cir.2012). “We are not limited to the district court’s reasons for its grant of summary judgment and may affirm the district court’s summary judgment on any ground raised below and supported by the record.” Rogers, 755 F.3d at 350 (internal quotation marks omitted). III. APPLICABLE LAW “When, as in this case, subject matter jurisdiction is based on diversity, federal courts apply the substantive law of the forum state- — here, [Mississippi].” Boyett v. Redland Ins. Co., 741 F.3d 604, 607 (5th Cir.2014) (citing Erie R.R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938)). “To determine the forum state’s law, we look first to the final decisions of that state’s highest court — here, the [Mississippi] Supreme Court.” Id. “In the absence of a final decision by the [Mississippi] Supreme Court, we must make an Erie guess and determine, in our best judgment, how that court would resolve the issue if presented with the same case.” In re Katrina Canal Breaches Litig., 495 F.3d 191, 206 (5th Cir.2007). In making an Erie guess, we “may look to the decisions of intermediate appellate state courts for guidance.” Howe v. Scottsdale Ins. Co., 204 F.3d 624, 627 (5th Cir.2000). IV. ANALYSIS This appeal presents two main issues. The first issue is whether an insurer can be liable for an excess judgment against its insured absent a settlement offer within policy limits by a third-party claimant. Specifically, Hemphill contends an insurer can be liable absent a settlement offer by a third-party claimant in two instances: (i) when the insurer does not timely offer to settle a claim in which the claim amount greatly exceeds the policy limits, and (ii) when the insurer does not timely disclose the policy limits to the third-party claimant. The second issue is whether there is a genuine dispute of material fact that the" }, { "docid": "20237838", "title": "", "text": "memorandum, the third subclass was merged into one of the other two. PLEADING STANDARDS, IN GENERAL A. Rule 8(a) Fed.R.Civ.P. 8(a)(2) requires that a complaint contain “a short and plain statement of the claim showing that the pleader is entitled to relief.’ ” To meet this standard, and to pass muster in the face of a motion for dismissal under Fed.R.Civ.P. 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, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 547, 127 S.Ct. 1955, 1960, 167 L.Ed.2d 929 (2007)). A complaint’s statement of a claim is plausible if its “factual content ... allows the court to draw the reasonable inference that the defendant is liable for the [conduct] alleged.” Iqbal, 556 U.S. at 663, 129 S.Ct. at 1940. At the pleading stage, a plaintiff must set forth enough to show that success on the merits is more than a “sheer possibility.” Id. The Plaintiff must “assert facts that affirmatively and plausibly suggest that it has the right [it] claims ... rather than facts that are merely consistent with such a right.” Stalley v. Catholic Health Initiatives, 509 F.3d 517, 521 (8th Cir.2007) (citing Twombly, 550 U.S. at 554-557, 127 S.Ct. 1955, 1964-1966). A pleaded claim must be based on more than “an unadorned, the-defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. at 678, 129 S.Ct. at 1949 (quoting Twombly, 550 U.S. at 555, 127 S.Ct. at 1955). The plausibility standard is not, however, a “probability requirement.” Id. Thus, “a well-pleaded complaint may proceed even if it strikes a savvy judge that actual proof of the facts alleged is improbable, and ‘that a recovery is very remote and unlikely.’ ” Twombly, 550 U.S. at 556, 127 S.Ct. at 1965 (quoting Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974)). See also Skinner v. Switzer, —U.S.-, 131 S.Ct. 1289, 1296, 179 L.Ed.2d 233 (2011) (to comply with specificity requirements" }, { "docid": "23664588", "title": "", "text": "479, 490 (2d Cir.2011). The District Court ruled that amendment was futile because, even considering the facts set forth in the opposition to the motion to dismiss, Nielsen did not adequately allege the mental state element of his deliberate indifference claim. We disagree. “To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (internal quotation marks omitted). “In addressing the sufficiency of a complaint we accept as true all factual allegations and draw from them all reasonable inferences; but we are not required to credit conclusory allegations or legal conclusions couched as factual 17 allegations.” Rothstein v. UBS AG, 708 F.3d 82, 94 (2d Cir.2013). Accordingly, “[t]hreadbare recitals of the elements of a cause of action, supported by mere con-clusory statements, do not suffice.” Iqbal, 556 U.S. at 678,129 S.Ct. 1937. “The plausibility standard is not akin to a probability requirement....” Id. (internal quotation marks omitted). “[A] well-pleaded complaint may proceed even if it strikes a savvy judge that actual proof of the facts alleged is improbable, and that a recovery is very remote and unlikely.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556, 127 S.Ct. 1955,167 L.Ed.2d 929 (2007) (internal quotation marks omitted). “Where, as here, the complaint was filed pro se, it must be construed liberally to raise the strongest arguments it suggests. Nonetheless, a pro se complaint must state a plausible claim for relief.” Walker v. Schult, 717 F.3d 119, 124 (2d Cir.2013) (internal citations, quotation marks, and brackets omitted). In this case, the allegations in the complaint and the opposition brief sufficiently set forth the mental state element of his claim — that “the charged official ... act with a sufficiently culpable state of mind,” Salahuddin v. Goord, 467 F.3d 263, 280 (2d Cir.2006). We have described this mental state element in some detail: “In medical-treatment cases not arising from emergency situations, the official’s state of mind need not reach the level of" }, { "docid": "22626323", "title": "", "text": "202 (1986)). III. DISCUSSION A. Controlling Law In diversity cases such as these, federal courts must apply state substantive law. Erie R.R. Co. v. Tompkins, 304 U.S. 64, 78, 58 S.Ct. 817, 82 L.Ed. 1188 (1938); Ashland Chem. Inc. v. Barco Inc., 123 F.3d 261, 265 (5th Cir.1997). In determining which state’s substantive law controls, the court applies the choice-of-law rules of the forum state. See Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487, 496, 61 S.Ct. 1020, 85 L.Ed. 1477 (1941). The parties agree that in these Louisiana actions involving the interpretation of insurance policies issued in Louisiana for property located in Louisiana, Louisiana’s substantive law controls. Cf. Am. Int’l Specialty Lines Ins. Co. v. Canal Indem. Co., 352 F.3d 254, 260 (5th Cir.2003). To determine Louisiana law, we look to the final decisions of the Louisiana Supreme Court. See id. In the absence of a final decision by the Louisiana Supreme Court, we must make an Erie guess and determine, in our best judgment, how that court would resolve the issue if presented with the same case. See id. In making an Erie guess, we must employ Louisiana’s civilian methodology, whereby we first examine primary sources of-law: the constitution, codes, and statutes. Id. (quoting Lake Charles Diesel, Inc. v. Gen. Motors Corp., 328 F.3d 192, 197 (5th Cir.2003)); Prytania Park Hotel, Ltd. v. Gen. Star Indem. Co., 179 F.3d 169 (5th Cir.1999). “Jurisprudence, even when it rises to the level of jurisprudence constante, is a secondary law source in Louisiana.” Prytania Park Hotel, 179 F.3d at 169 (footnote omitted); see also Am. Int’l Specialty Lines Ins. Co., 352 F.3d at 261 (quoting Transcon. Gas Pipe Line Corp. v. Transp. Ins. Co., 953 F.2d 985, 988 (5th Cir.1992)). Thus, although we will not disregard the decisions of Louisiana’s intermediate courts unless we are convinced that the Louisiana Supreme Court would decide otherwise, we are not strictly bound by them. Am. Int’l Specialty Lines Ins. Co., 352 F.3d at 261. Under Louisiana law, “[a]n insurance policy is a contract between the parties and should be construed by using" }, { "docid": "20103897", "title": "", "text": "991, 993 (5th Cir.1981). Under the 12(b)(6) standard, a court cannot look beyond the pleadings. Spivey v. Robertson, 197 F.3d 772, 774 (5th Cir.1999); Baker v. Putnal, 75 F.3d 190, 196 (5th Cir.1996). Pleadings must show specific, well-pleaded facts, not mere conclusory allegations to avoid dismissal. Guidry v. Bank of LaPlace, 954 F.2d 278, 281 (5th Cir.1992). The court must accept those well-pleaded facts as true and view them in the light most favorable to the plaintiff. Baker, 75 F.3d at 196. “[A] well-pleaded complaint may proceed even if it strikes a savvy judge that actual proof of [the alleged] facts is improbable, and ‘that a recovery is very remote and unlikely.’ ” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) (citation omitted). Although “detailed factual allegations” are not necessary, a plaintiff must provide “more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Id. at 555, 127 S.Ct. 1955; accord Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009) (emphasizing that “the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions”). The alleged facts must “raise a right to relief above the speculative level.” Twombly, 550 U.S. at 555, 127 S.Ct. 1955. In short, a complaint fails to state a claim upon which relief may be granted when it fails to plead “enough facts to state a claim to relief that is plausible on its face.” Id. 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. The plausibility standard is not akin to a “probability requirement,” but it asks for more than a sheer possibility that a defendant has acted unlawfully. Where a complaint pleads facts that are “merely consistent with” a defendant’s liability, it “stops short of the line between possibility and plausibility of ‘entitlement to relief.’ ”" }, { "docid": "12225534", "title": "", "text": "that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). Although we draw all reasonable inferences and facts in favor of the non-movant, we need not accept as true any legal assertions. Vesely v. Armslist LLC, 762 F.3d 661, 664-65 (7th Cir.2014). The district court’s jurisdiction was based on diversity of citizenship.- The district court, and this court on review, is therefore obliged to apply state law to the substantive issue in the case. See Erie R.R. Co. v. Tompkins, 304 U.S. 64, 78, 58 S.Ct. 817, 82 L.Ed. 1188 (1938); Weigle v. SPX Corp., 729 F.3d 724, 737 (7th Cir.2013). The parties do not dispute that Indiana law governs this action. See Koransky, Bouwer & Poracky, P.C. v. Bar Plan Mut. Ins. Co., 712 F.3d 336, 341 (7th Cir.2013) (noting that, in the absence of an assertion to the contrary by the parties, it is appropriate to apply the law of the state in which the district court sits). Thus, we apply the law that would be applied by the Indiana Supreme Court. See King v. Order of United Commercial Travelers of Am., 333 U.S. 153, 160-61, 68 S.Ct. 488, 92 L.Ed. 608 (1948); West v. Am. Tel. & Tel. Co., 311 U.S. 223, 236-37, 61 S.Ct. 179, 85 L.Ed. 139 (1940); Home Valu, Inc. v. Pep Boys-Manny, Moe & Jack of Del., Inc., 213 F.3d 960, 963 (7th Cir.2000). If the Indiana Supreme Court has not spoken on the issue, we generally treat decisions by the state’s intermediate appellate courts as authoritative, unless there is a compelling reason to think that the state supreme court would decide the issue differently. See Home Valu, Inc., 213 F.3d at 963. B. The Indiana Supreme Court has not addressed the precise issue before us. Following our" }, { "docid": "12321227", "title": "", "text": "district court requesting leave to file a second amended complaint. The district court construed the letter as a motion under Federal Rule of Civil Procedure 59(e) to alter or amend the judgment and, on August 4, 2011, denied the motion. On June 28, 2012, while Alam’s Rule 59(e) motion was still pending, Alam filed a notice of appeal. II. DISCUSSION Alam contends that the district court erred in dismissing his complaint against Miller Brewing and MillerCoors. We review de novo a dismissal under Rule 12(b)(6) for failure to state a claim. Citadel Grp. Ltd. v. Wash. Reg’l Med. Ctr., 692 F.3d 580, 591 (7th Cir.2012). To avoid dismissal, Alam’s complaint must contain allegations that “ ‘state 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)). In reviewing the sufficiency of a complaint under the plausibility standard, we accept the well-pleaded facts in the complaint as true, but we “need not accept as true legal conclusions, or threadbare recitals of the elements of a cause of action, supported by mere conclusory statements.” Brooks v. Ross, 578 F.3d 574, 581 (7th Cir.2009). The “[f]actual allegations must be enough to raise a right to relief above the speculative level.” Twombly, 550 U.S. at 555, 127 S.Ct. 1955, 167 L.Ed.2d 929. That is, the complaint must contain “allegations plausibly suggesting (not merely consistent with)” an entitlement to relief. Id. at 557, 127 S.Ct. 1955. This does not impose a probability requirement on plaintiffs: “a well-pleaded complaint may proceed even if it strikes a savvy judge that actual proof of those facts is improbable, and that a recovery is very remote and unlikely.” Id. at 556, 550 U.S. 544, 127 S.Ct. 1955, 167 L.Ed.2d 929 (citation omitted). A. Dismissal of Miller Brewing Alam first argues that the district court erred in dismissing his Title VII claim against Miller Brewing for failure to exhaust administrative remedies. Prior to filing suit under Title VII, a" }, { "docid": "9846453", "title": "", "text": "Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) (alteration in original) (quoting Fed. R.Civ.P. 8(a)(2) and Conley v. Gibson, 355 U.S. 41, 47, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957)). “To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ ” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (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. We consider “[t]wo working principles,” id., in our analysis. “First, the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Id. “Second, only a complaint that states a plausible claim for relief survives a motion to dismiss. Determining whether a complaint states a plausible claim for relief will ... be a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.” Id. at 679, 129 S.Ct. 1937 (internal citation omitted).- “[A] well-pleaded complaint may proceed even if it strikes a savvy judge that actual proof of those facts is improba ble, and ‘that a recovery is very remote and unlikely.’ ” Twombly, 550 U.S. at 556, 127 S.Ct. 1955 (quoting Scheuer v. Rhodes, 416 U.S. 282, 286, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974)). A. Aiding and Abetting Claims In Minnesota, a tort claim for aiding and abetting has three elements: (1) the primary tortfeasor must commit a tort that causes an injury to the plaintiff; (2) the defendant must know that the primary tortfeasor’s conduct constitutes a breach of duty; and (3) the defendant must substantially assist or encourage the primary tort-feasor in the achievement of the breach. Witzman v. Lehrman, Lehrman & Flom, 601" }, { "docid": "19560171", "title": "", "text": "notified any defects and both deeds were still pending recordation. LEGAL DISCUSSION AND ANALYSIS A. Dismissal Standard The complaint need only contain \"a short and plain statement of the claim showing that the pleader is entitled to relief.\" Fed. R. Civ. P. 8(a)(2) ; see also Grajales v. Puerto Rico Ports Auth., 682 F.3d 40, 44 (1st Cir. 2012). Dismissal of a complaint is inappropriate if the complaint satisfies Rule 8(a)(2)'s requirement. Ocasio-Hernandez v. Fortuno-Burset, 640 F.3d 1, 11 (1st Cir.2011). In order to survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face. Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) ; Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) ; Katz v. Pershing, LLC, 672 F.3d 64, 72-73 (1st Cir.2012) (internal citations omitted). \"A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable ...\" Ashcroft v. Iqbal, at 678, 129 S.Ct. 1937. A well-pled complaint may survive a motion to dismiss even if it strikes a savvy judge that actual proof of those facts is improbable, and that a recovery is very remote and unlikely. Twombly, at 556, 127 S.Ct. 1955. \"In practice, a complaint ... must contain either direct or inferential allegations respecting all the material elements necessary to sustain recovery under some viable legal theory.\" Id. at 562, 127 S.Ct. 1955 (quoting Car Carriers, Inc. v. Ford Motor Co., 745 F.2d 1101, 1106 (7th Cir.1984) ). On a motion to dismiss, however, courts are \"not bound to accept as true a legal conclusion couched as a factual allegation.\" Papasan v. Allain, 478 U.S. 265, 286, 106 S.Ct. 2932, 92 L.Ed.2d 209 (1986). Thus, a plaintiff is not entitled to proceed perforce by virtue of allegations that merely parrot the elements of the cause of action. Ocasio-Hernandez v. Fortuno-Burset, 640 F.3d at 12 (citing Twombly, at 555, 127 S.Ct. 1955 (internal citations" }, { "docid": "22626322", "title": "", "text": "state a claim. See id. at 313 n. 8; see also 5C Charles AlaN Wright & Arthur R. Miller, Federal PraCtice and Procedure § 1368 (3d ed.2004). “The central issue is whether, in the light most favorable to the plaintiff, the complaint states a valid claim for relief.” Great Plains Trust Co., 313 F.3d at 312 (citing Hughes, 278 F.3d at 420). We review a grant of summary judgment de novo, viewing all evidence in the light most favorable to the nonmoving party and drawing all reasonable inferences in that party’s favor. See Crawford v. Formosa Plastics Corp., 234 F.3d 899, 902 (5th Cir.2000). “Summary judgment is proper when the evidence -reflects no genuine issues of material fact and the non-movant is entitled to judgment as a matter of law.” Id. (citing Fed.R.Civ.P. 56(c)). “A genuine issue -of material fact' exists ‘if the evidence is such that a reasonable jury could return a verdict for the non-moving party.’ ” Id. (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)). III. DISCUSSION A. Controlling Law In diversity cases such as these, federal courts must apply state substantive law. Erie R.R. Co. v. Tompkins, 304 U.S. 64, 78, 58 S.Ct. 817, 82 L.Ed. 1188 (1938); Ashland Chem. Inc. v. Barco Inc., 123 F.3d 261, 265 (5th Cir.1997). In determining which state’s substantive law controls, the court applies the choice-of-law rules of the forum state. See Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487, 496, 61 S.Ct. 1020, 85 L.Ed. 1477 (1941). The parties agree that in these Louisiana actions involving the interpretation of insurance policies issued in Louisiana for property located in Louisiana, Louisiana’s substantive law controls. Cf. Am. Int’l Specialty Lines Ins. Co. v. Canal Indem. Co., 352 F.3d 254, 260 (5th Cir.2003). To determine Louisiana law, we look to the final decisions of the Louisiana Supreme Court. See id. In the absence of a final decision by the Louisiana Supreme Court, we must make an Erie guess and determine, in our best judgment, how that court would resolve the issue" }, { "docid": "22051243", "title": "", "text": "which sharpens the presentation of issues upon which the court so largely depends for illumination.’ ” Massachusetts v. EPA, 549 U.S. 497, 517, 127 S.Ct. 1438, 167 L.Ed.2d 248 (2007) (quoting Baker v. Carr, 369 U.S. 186, 204, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962)). This central concern of Article III is satisfied here, and § 1132(a)(2) provides the appropriate vehicle for Braden to proceed on behalf of the Plan. We therefore conclude that the district court erred in dismissing Braden’s claims for lack of standing. III. A. Federal Rule of Civil Procedure 8 requires that a complaint present “a short and plain statement of the claim showing that the pleader is entitled to relief.” In order to meet this standard, and 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, — U.S. -, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). The plausibility standard requires a plaintiff to show at the pleading stage that success on the merits is more than a “sheer possibility.” Id. It is not, however, a “probability requirement.” Id. Thus, “a well-pleaded complaint may proceed even if it strikes a savvy judge that actual proof of the facts alleged is improbable, and ‘that a recovery is very remote and unlikely.’ ” Twombly, 550 U.S. at 556, 127 S.Ct. 1955 (quoting Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974)). A complaint states a plausible claim for relief if its “factual content ... allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 129 S.Ct. at 1949. Several principles guide us in determining whether a complaint meets this standard. First, the court must take the plaintiffs factual allegations as true. Id. at 1949-50. This tenet does not apply, however, to legal conclusions or “formulaic recitation of the elements of a cause" }, { "docid": "12225533", "title": "", "text": "insurance adjuster, has no common law duty of reasonable care to Pulliam in handling the defense of the state court case.” The court further concluded that York did not assume a duty to Pulliam because York had not specifically and deliberately undertaken the task that it was alleged to have performed negligently. On June 6, 2014, the district court granted York’s motion for entry of final judgment under Federal Rule of Civil Procedure 54(b). Mr. Lodholtz now appeals the court’s decision to dismiss his claim against York. II DISCUSSION A. We first set forth the standards that govern our decision today. We review de novo a district court’s decision to render judgment on the pleadings under Rule 12(c). Adams v. City of Indianapolis, 742 F.3d 720, 727 (7th Cir.2014). A Rule 12(c) motion is governed by the same standards as a motion to dismiss for failure to state a claim under Rule 12(b)(6). Id. at 727-28. In order to survive a motion to dismiss under Rule 12(b)(6), a complaint must “state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). Although we draw all reasonable inferences and facts in favor of the non-movant, we need not accept as true any legal assertions. Vesely v. Armslist LLC, 762 F.3d 661, 664-65 (7th Cir.2014). The district court’s jurisdiction was based on diversity of citizenship.- The district court, and this court on review, is therefore obliged to apply state law to the substantive issue in the case. See Erie R.R. Co. v. Tompkins, 304 U.S. 64, 78, 58 S.Ct. 817, 82 L.Ed. 1188 (1938); Weigle v. SPX Corp., 729 F.3d 724, 737 (7th Cir.2013). The parties do not dispute that Indiana law governs this action. See Koransky, Bouwer & Poracky, P.C. v. Bar" }, { "docid": "8244172", "title": "", "text": "2008, the court entered final judgment for the Excess Insurers. Six Flags now appeals. II. DISCUSSION A Jurisdiction and Standard of Review We have jurisdiction under 28 U.S.C. § 1291. The court reviews de novo the district court’s award of summary judgment. See In re Katrina Canal Breaches Litig., 495 F.3d 191, 205 (5th Cir.2007). “The judgment sought should be rendered if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c). The court “viewfs] all evidence in the light most favorable to the nonmoving party and draw[s] all reasonable inferences in that party’s favor.” In re Katrina Canal Breaches Litig., 495 F.3d at 205-06. “A genuine issue of material fact exists ‘if the evidence is such that a reasonable jury could return a verdict for the non-moving party.’ ” Id. at 206 (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)). B. Contract Interpretation The parties agree that Louisiana law governs their dispute. To determine Louisiana law, we look to “the final decisions of the Louisiana Supreme Court.” Id. In the absence of such a decision, “we must make an Erie guess and determine, in our best judgment, how that court would resolve the issue if presented with the same case.” Id. “In making an Erie guess, we must employ Louisiana’s civilian methodology, whereby we first examine primary sources of law: the constitution, codes, and statutes.” Id. “ ‘Jurisprudence, even when it rises to the level of jurisprudence constante, is a secondary law source in Louisiana.’ ” Id. (quoting Prytania Park Hotel, Ltd. v. Gen. Star Indem. Co., 179 F.3d 169, 169 (5th Cir.1999) (footnote omitted)). Under Louisiana law, “[t]he written instrument, in which a contract of insurance is set forth, is the policy.” La.Rev.Stat. Ann. § 22:864. “An insurance policy is a contract between the parties and should be construed by using the general rules of interpretation of contracts set forth" } ]

[ { "docid": "3676791", "title": "", "text": "with which it must have struck the bulkhead, the explanation of his inability to stop before he ran it into the bulkhead can only be either that he was driving too fast, or that the brakes were defective or inadequate to hold the heavy load. Even if the driver could not see the bayou until he was within 10 feet of it, there was no road in sight ahead of him. Under these circumstances, not only the driver but all the other plaintiffs as well are barred of any right of recovery; for, as it appears to us, the driver’s failure to exercise ordinary care was the proximate and only cause of the accident. As a general rule, it is negligence to so drive an automobile at night as that the driver cannot stop it within the distance obstructions on the highway ahead can be seen by the light from the headlights. Lauson v. Fond du Lac, 141 Wis. 57, 123 N. W. 629, 25 L. R. A. (N. S.) 40, 135 Am. St. Rep. 30; Fisher v. O’Brien, 99 Kan. 621, 162 P. 317, L. R. A. 1917F, 610; Weston v. Southern R. Co., 194 N. C. 210, 139 S. E. 237; Smith v. Southern R. Co. (C. C. A.) 53 F.(2d) 186. Conceding that the rule has its limitations, we think it is applicable in this case. The plaintiffs were all strangers to the highway and the streets of Houma; none of them had any knowledge of the turns of the highway or the streets, or of any obstructions that might be in their way. Under the circumstances here disclosed, the bayou was only a condition and not the proximate cause of the accident. Orton v. Penn. R. Co. (C. C. A.) 7 F.(2d) 36; Western Union Telegraph Co. v. Stephenson (C. C. A.) 36 F.(2d) 47; Smith v. Southern R. Co., supra; Brown v. Southern R. Co. (C. C. A.) 61 F.(2d) 399. Bayou Terrebonne is a navigable waterway, and is not to be compared with hidden defects and pitfalls; or even with a canal dug across" } ]

[ { "docid": "17199519", "title": "", "text": "5 Cir., 1940, 110 F.2d 596, for the proposition that the doctrine of comparative negligence prevails in Georgia. A motion to strike was never intended to furnish an opportunity for the determination of disputed and substantial questions of law, O’Reilly v. Curtis Publishing Co., D.C., 22 F.Supp. 359, at page 361; Tivoli Realty, Inc., v. Paramount Pictures, Inc., D.C.Del., 80 F. Supp. 800, at page 803; Burke v. Mesta Mach. Co., D.C.W.D.Pa., 5 F.R.D. 134; 1 Barron & Holtzoff, supra, § 368, p. 750; 2 Moore, supra, p. 2219, and is not granted if insufficiency of the defense is not clearly apparent or may better be determined in a hearing on the merits. Obviously if defendant was not negligent and Smith’s negligence was the proximate cause of the accident and the injuries and damage sustained, plaintiff could not recover. Cf. United States v. Fleming, 5 Cir., 1940, 115 F.2d 314, at page 316; Queen v. Patent Scaffolding Co., supra, 167 S.E. at page 794; McCord v. Atlantic Coast Line R. Co., 5 Cir., 1950, 185 F.2d 603, at page 605. Plaintiff’s rights arise no higher than those of Smith. Atlantic Greyhound Corp. v. Loudermilk, supra, 110 F.2d at page 599; McCord v. Atlantic Coast Line R. Co., supra, 185 F.2d at page 605. As to comparative negligence, see Id. and dissenting opinion of Sibley, J., in Atlantic Greyhound Corp. v. Loudermilk, supra, 110 F.2d at page 599, Georgia Code, § 105-603, “If the plaintiff by ordinary care could have avoided the consequences to himself caused by the defendant’s negligence, he is not entitled to recover. In other cases the defendant is not relieved, although the plaintiff may in some way have contributed to the injury sustained.’ * * * the plaintiff’s fault must be less than the defendant’s, because if they are equally to blame neither can recover * * See United States v. Fleming, supra, 115 F.2d at page 316, “The Georgia comparative negligence rule * * * by applying to plaintiff the last clear chance doctrine * * * encroaches on and to that extent impairs, the symmetry" }, { "docid": "18362361", "title": "", "text": "Code § 105-603: “105-603. Diligence of plaintiff.— If the plaintiff by ordinary care could have avoided the consequences to himself caused by the defendant’s negligence, he is not entitled to recover. In other cases the defendant is not relieved, although the plaintiff may in some way have contributed to the injury sustained.” See also Tyler v. Peel Corp., 5 Cir., 1967, 371 F.2d 788, 791 n. 6; Mixon v. Atlantic Coast Line R. R., 5 Cir., 1966, 370 F.2d 852, 858; Gross v. Southern Ry., 5 Cir., 1969, 414 F.2d 292 [May 30, 1969]. . Standard relies on the fact that Webb knowingly continued to use a ladder that, according to his allegations, was “extremely dangerous and unsafe.” . It is not clear from the Georgia cases whether the term “rashness” connotes a form of aggravated negligence, like gross negligence, or whether the term is simply a reminder that the principles of contributory negligence remain applicable in these cases. For example, in the case of Southern Cotton Oil Co. v. Gladman, 1 Ga.App. 259, 58 S.E. 249, the Georgia Court stated: “Of course a servant who rashly exposes himself to a known danger, which common prudence ought to show him could not be encountered without probable injury, cannot recover in case he is thereby injured, even though his conduct be sanctioned or commanded by the master.” See also Louisville & N. R. R. v. Dunn, 1917, 21 Ga.App. 379, 94 S.E. 661. For our purposes here, it is sufficient to assume that “rashness” encompasses the concept of contributory negligence. . As Judge Goldberg has so aptly put it: “Negligence is a seldom enclave for trial judge finality. Negligence is a composite of the experiences of the average man and is thus usually confined to jury evaluation.” Keating v. Jones Development, Inc., 5 Cir., 1968, 398 F.2d 1011, 1015. ON PETITION FOR REHEARING PER CURIAM: The Court’s reference to the relationship of employer-employee is intended to describe a relationship and the existence of duties, etc. analogous to that of employer-employee. In all other respects the petition for rehearing filed in the" }, { "docid": "22360930", "title": "", "text": "provide one at another time. This was the holding of this court in Texas-New Mexico Ry. Co. v. Bailey, 5 Cir. 1953, 203 F.2d 647. Other cases to the same effect are cited in that opinion. This is particularly important in our case because it might appear that no special circumstances requiring warnings existed in the daytime, but the converse might have been true at night under the conditions existing at the time of the collision, which was the crucial time. We conclude that the question of whether or not special circumstances requiring special warnings existed at the crossing under all of the facts and circumstances at the time of the collision was a question of fact that should have been submitted to a jury. Ill Blowing of the Whistle The plaintiffs alleged that the engineer of defendant’s train was guilty of negligence per se in that he did not blow the whistle on the engine when it reached the blowpost 400 yards from the crossing and thereafter as required by Section 94-506 of the Georgia Code Annotated (1958 Rev.). The train crew testified that the whistle was blown, but plaintiff Canipelli said it did not blow because she would have heard it if it had blown. The jury could have inferred and found from this evidence that the whistle was not blown. Climer v. Southern Ry. Co., 43 Ga.App. 650, 159 S.E. 782 (1931); and Callaway v. Cox, 74 Ga.App. 555, 40 S.E.2d 578, 582. The question should have been submitted to a jury. It has been held by the courts in Georgia that the failure to blow a whistle on a train as required by law is negligence per se. Davis v. Whitcomb, 30 Ga.App. 497, 118 S.E. 488 (1923); Seaboard Air Line Ry. v. Hollis, 20 Ga.App. 555, 93 S.E. 264 (1917); and Callaway v. Cox, supra. Such negligence is sufficient to impose liability on the railroad if it is the proximate cause of the collision. Proximate cause is ordinarily a question for the jury. Stanaland v. Atlantic Coast Line R. Co., 5 Cir. 1951, 192 F.2d" }, { "docid": "17199521", "title": "", "text": "of the rule of comparative negligence broadly ap plied. Whether this is a concession to the difficulties inherent in the determination of proximate cause or to the influence of the maxim, ‘volenti non fit injuria’, on the holding of the Georgia courts that one in the attitude of being the author of his own misfortune in a legal sense consents to the injuries suffered, we need not too closely inquire. It is sufficient to say that the Georgia rule does not defeat recovery by a negligent plaintiff unless it is made to appear that his negligence was the sole, or within the rule of the last clear chance doctrine, the legal, proximate cause of the injury.” And see Central of Georgia Ry. Co. v. Adams, 1929, 39 Ga.App. 577, 147 S.E. 802, at page 804, “* * * petitioner was the author of his own misfortunes * * * the acts of negligence alleged against the defendant did not contribute to or concur with petitioner’s negligence in causing the collision;” and Baker v. Atlantic Coast Line R. Co., 1936, 52 Ga. App. 624, 184 S.E. 381, at page 383, “ * * * being the author of his own misfortune * * * in a legal sense, he consented to the injuries suffered”. Further as to assumption of risk, see Queen v. Patent Scaffolding Co., supra, 167 S.E. at page 794, and City of Columbus v. Griggs, 113 Ga. 597, 38 S.E. 953. Even if the proof justified application of the doctrine of comparative negligence, a partial defense is not an insufficient defense. Verges v. News Syndicate Co., Inc., D.C., 11 F.R.D. 587; American Motorists Ins. Co. v. Napoli, 5 Cir., 1948, 166 F.2d 24, at page 26; Bauman v. Aluminum Co. of America, D.C.E.D.N.Y., 58 F.Supp. 160, at page 162. As to pleading negligence, see F.R.C.P. 8(a, c, f), and cf. Sierocinski v. E. I. Du Pont De Nemours & Co., 3 Cir., 1939, 103 F.2d 843, and see Id., 3 Cir., 1941, 118 F.2d 531, at page 534, 535; Smith v. Pennsylvania Central Airlines Corp., D.C.D.C.1948, 76 F.Supp." }, { "docid": "17199520", "title": "", "text": "F.2d 603, at page 605. Plaintiff’s rights arise no higher than those of Smith. Atlantic Greyhound Corp. v. Loudermilk, supra, 110 F.2d at page 599; McCord v. Atlantic Coast Line R. Co., supra, 185 F.2d at page 605. As to comparative negligence, see Id. and dissenting opinion of Sibley, J., in Atlantic Greyhound Corp. v. Loudermilk, supra, 110 F.2d at page 599, Georgia Code, § 105-603, “If the plaintiff by ordinary care could have avoided the consequences to himself caused by the defendant’s negligence, he is not entitled to recover. In other cases the defendant is not relieved, although the plaintiff may in some way have contributed to the injury sustained.’ * * * the plaintiff’s fault must be less than the defendant’s, because if they are equally to blame neither can recover * * See United States v. Fleming, supra, 115 F.2d at page 316, “The Georgia comparative negligence rule * * * by applying to plaintiff the last clear chance doctrine * * * encroaches on and to that extent impairs, the symmetry of the rule of comparative negligence broadly ap plied. Whether this is a concession to the difficulties inherent in the determination of proximate cause or to the influence of the maxim, ‘volenti non fit injuria’, on the holding of the Georgia courts that one in the attitude of being the author of his own misfortune in a legal sense consents to the injuries suffered, we need not too closely inquire. It is sufficient to say that the Georgia rule does not defeat recovery by a negligent plaintiff unless it is made to appear that his negligence was the sole, or within the rule of the last clear chance doctrine, the legal, proximate cause of the injury.” And see Central of Georgia Ry. Co. v. Adams, 1929, 39 Ga.App. 577, 147 S.E. 802, at page 804, “* * * petitioner was the author of his own misfortunes * * * the acts of negligence alleged against the defendant did not contribute to or concur with petitioner’s negligence in causing the collision;” and Baker v. Atlantic Coast" }, { "docid": "18362360", "title": "", "text": "thereof.” Georgia Code § 66-303. . See, e. g., Atlanta, B. & C. B. Co. v. King, 1936, 55 Ga.App. 1, 189 S.E. 580; International Cotton Mills v. Webb, 1918, 22 Ga.App. 309, 96 S.E. 16; Bush v. West Yellow Pine Co., 1907, 2 Ga.App. 295, 58 S.E. 529; Moore v. Dublin Cotton Mills, 1906, 127 Ga. 609, 56 S.E. 839. . See, e. g., Borochoff v. Fowler, 1958, 98 Ga.App. 411, 105 S.E.2d 764; Elliott v. Tifton Mill & Gin Co., 1913, 12 Ga.App. 498, 77 S.E. 667. . See Bush v. West Yellow Pine Co., supra; Atlanta, B. & C. R. Co. v. King, 1936, 55 Ga.App. 1, 189 S.E. 580. . This is watered down somewhat under Georgia’s modified comparative negligence concept. Under this rule a negligent plaintiff may recover unless his negligence is equal to (or greater than) that of the defendant, although damages will be reduced in proportion to the amount of negligence attributable to the plaintiff. Williams v. United States, 5 Cir., 1967, 379 F.2d 719, 722. See Georgia Code § 105-603: “105-603. Diligence of plaintiff.— If the plaintiff by ordinary care could have avoided the consequences to himself caused by the defendant’s negligence, he is not entitled to recover. In other cases the defendant is not relieved, although the plaintiff may in some way have contributed to the injury sustained.” See also Tyler v. Peel Corp., 5 Cir., 1967, 371 F.2d 788, 791 n. 6; Mixon v. Atlantic Coast Line R. R., 5 Cir., 1966, 370 F.2d 852, 858; Gross v. Southern Ry., 5 Cir., 1969, 414 F.2d 292 [May 30, 1969]. . Standard relies on the fact that Webb knowingly continued to use a ladder that, according to his allegations, was “extremely dangerous and unsafe.” . It is not clear from the Georgia cases whether the term “rashness” connotes a form of aggravated negligence, like gross negligence, or whether the term is simply a reminder that the principles of contributory negligence remain applicable in these cases. For example, in the case of Southern Cotton Oil Co. v. Gladman, 1 Ga.App. 259, 58" }, { "docid": "22360938", "title": "", "text": "recovery. See also Bach v. Bragg Brothers, 53 Ga.App. 574, 186 S.E. 711 (1936); Central of Georgia Ry. Co. v. Larsen, 19 Ga.App. 413, 91 S.E. 517 (1916); and Freeman v. Nashville Ry. Co., 120 Ga. 469, 47 S.E. 931 (1904). In the case of Stanaland v. Atlantic Coast Line R. Co., 5 Cir. 1951, 192 F.2d 432, 434, the court said: * * * This duty on the part of the plaintiff to exercise ordinary care to avoid the consequences of the defendant’s negligence necessarily applies to a situation where there is opportunity to avoid the consequences and does not arise until the negligence of the defendant becomes apparent, or the circumstances are such that an ordinary, prudent person would apprehend its existence. Western & A. R. Co. v. Ferguson, 113 Ga. 708, 39 S.E. 306, 54 L.R.A. 802. The defendant says that this rule bars plaintiffs’ recovery here because the driver of plaintiffs’ car failed to heed the warnings and instructions of the two highway signs on highway 74 in violation of Sections 68-1504(6) (a) and 68-1610 (c) of the Georgia Code Annotated, and that in so failing he was guilty of negligence per se. Even if Gross was thus guilty of negligence, such negligence does not automatically invoke the rule of avoidance so as to bar a recovery by the plaintiffs. This is a jury question. See Atlantic Coast Line R. Co. v. Key, 5 Cir. 1952, 196 F.2d 64, 67, where the court said: “* * * [Q]uestions as to whether the plaintiff could, by the exercise of ordinary care, have avoided the consequenees of the defendant’s negligence after it had, or should have, become known, are such as lie peculiarly within the province of the jury to determine (L[ouisville] & N. R. Co. v. Stafford, 146 Ga. 206, 91 S.E. 29; Central of Ga. Ry. Co. v. Larsen, 19 Ga.App. 413, 91 S.E. 517; Central of Ga. Ry. Co. v. Barnett, 35 Ga.App. 528 [1], 530 [1], 134 S.E. 126)”. Reed v. Southern Railway Co., supra. [37 Ga.App. 550, 140 S.E. 921, 923.] Such questions" }, { "docid": "23562316", "title": "", "text": "signs are adequate. d. Contributory Negligence CSX finally argues that summary judgment should have been granted because Easterwood’s action is barred under the doctrine of contributory negligence. In grade crossing accidents under Georgia law, a plaintiff’s action is barred if he or she is more than 50% at fault. See Ga. Code Ann. § 46-8-291 (1982). The existence of contributory or comparative negligence is one of fact “and will not be determined by the courts as a matter of law except in palpably clear, plain and undisputed cases.” Iler v. Seaboard Air Line R. Co., 214 F.2d 385, 388 (5th Cir.1954) (applying the Georgia grade crossing comparative negligence law). In Georgia, contributory negligence has been held to be clear in at least two types of cases. If the driver is aware of the train and attempts to beat the train, then the proximate cause of the accident is not, as a matter of law, the railroad’s failure to warn. See Southern Ry. v. Blake, 101 Ga. 217, 29 S.E. 288 (1897). Similarly, if the driver saw the train, or in the exercise of ordinary care should have seen the train, and nevertheless continued across the tracks, then the railroad cannot be held liable for failing to warn. See Seaboard Coast Line R.R. Co. v. Mitcham, 127 Ga. App. 102, 192 S.E.2d 549 (1972). CSX argues that summary judgment is warranted on this claim because Easterwood was wholly at fault for entering the grade crossing when he did. There, however, is absolutely no evidence that Easterwood tried to beat the train across the tracks or that he actually knew about the train before starting to cross the tracks. The undisputed evidence shows that Mr. Easterwood slowly approached the intersection and without varying his speed slowly drove into the path of the train. Viewing this evidence in the light most favorable to the non-moving party, Earley, 907 F.2d at 1080, we can only conclude that Mr. Easterwood did not attempt to beat the train across the tracks and that he actually was unaware of the oncoming train. While there is absolutely no" }, { "docid": "22360931", "title": "", "text": "Georgia Code Annotated (1958 Rev.). The train crew testified that the whistle was blown, but plaintiff Canipelli said it did not blow because she would have heard it if it had blown. The jury could have inferred and found from this evidence that the whistle was not blown. Climer v. Southern Ry. Co., 43 Ga.App. 650, 159 S.E. 782 (1931); and Callaway v. Cox, 74 Ga.App. 555, 40 S.E.2d 578, 582. The question should have been submitted to a jury. It has been held by the courts in Georgia that the failure to blow a whistle on a train as required by law is negligence per se. Davis v. Whitcomb, 30 Ga.App. 497, 118 S.E. 488 (1923); Seaboard Air Line Ry. v. Hollis, 20 Ga.App. 555, 93 S.E. 264 (1917); and Callaway v. Cox, supra. Such negligence is sufficient to impose liability on the railroad if it is the proximate cause of the collision. Proximate cause is ordinarily a question for the jury. Stanaland v. Atlantic Coast Line R. Co., 5 Cir. 1951, 192 F.2d 432, 434. In that case the court said: In Georgia it is well recognized that questions of diligence and negligence, including comparative negligence and proximate cause, are peculiarly for the determination of the jury, and will not be determined by the courts as a matter of law except in palpably clear, plain and undisputed cases. Lanier v. Turner, 73 Ga.App. 749, 38 S.E.2d 55; Callaway v. Pickard, 68 Ga.App. 637, 23 S.E.2d 564; Bach v. Bragg Bros., 53 Ga.App. 574, 186 S.E. 711; Atlantic Coast Line R. Co. v. Dickson, 70 Ga.App. 590, 28 S.E.2d 879. [Emphasis supplied.] We hold that on the facts before us, these issues should have been submitted to a jury. IV Comparative Negligence Under the laws of Georgia, contributory negligence does not bar a recovery by the plaintiff unless his negligence is equal to or greater than that of the defendant. If they are both negligent, but plaintiff’s negligence is less than that of defendant, plaintiff may recover, but his damages will be diminished by the jury in proportion to" }, { "docid": "13108175", "title": "", "text": "evidence was sufficient to support the verdict that Garmon was the agent of appellant. This being the record, we are to determine whether the appellee insurer was justified in concluding that it had a standing to contend against the liability of appellant. There can be no doubt that the weight of authority supports the view that an insurer must act with good faith toward its insured in the defense and settlement of claims which under its policy it has the exclusive right to defend and settle, and is liable in damages to the assured for failure to do so. Home Indemnity Co. v. Williamson, 5 Cir., 183 F.2d 572; Maryland Casualty Co. v. Elmira Coal Co., 8 Cir., 69 F.2d 616; Noshey v. American Automobile Ins. Co., 6 Cir., 68 F.2d 808; American Mutual Liability Ins. Co. v. Cooper, 5 Cir., 61 F.2d 446. And, contrary to the better reasoned cases, it has been held in some jurisdictions that recovery may be had for negligence of the insurer in refusing to settle a claim for damages against the insured. Ballard v. Ocean Accident & Guarantee Co., 7 Cir., 86 F.2d 449; Attleboro Mfg. Co. v. Frarikfort Marine, etc., Ins. Co, 1 Cir., 240 F. 573. Under the applicable law of Georgia, as declared by its highest court and which is here controlling, a defense going far enough to show reasonable and probable cause for making it will vindicate the good faith of the insurance company as effectively as will a complete defense to the action. Travelers’ Ins. Co. v. Sheppard, 85 Ga. 751, 12 S.E. 18; Cotton States Life Insurance Company v. Edwards, 74 Ga. 220; Life & Casualty Ins. Co. of Tennessee v. Freemon, 80 Ga.App. 443, 444, 56 S.E.2d 303; Liberty Mutual Insurance Co. v. Atlantic Coast Line R. Co, 66 Ga.App. 826, 19 S.E.2d 377; North British & Mercantile Ins. Co. v. Parnell, 53 Ga.App. 178, 185 S.E. 122. We agree with the District Court that the Georgia cases relied upon by appellee in the Cassell suit rule in effect that Gar-mon would be an independent contractor" }, { "docid": "6142441", "title": "", "text": "we think, as a question of fact, it should have been submitted to the jury to say whether or not the use was shown to exist to such an extent as to require those operating the cars of the defendant to anticipate the presence of persons on the track. If the evidence was such as to require them to anticipate the presence of pedestrians on the track, then they were bound to use ordinary care to avoid injury to anyone who might be on the track at that place.” In this connection, see also: Macon and Birmingham Railway Co. v. Parker, 127 Ga. 471, 56 S.E. 616; Georgia Southern & Florida Ry. Co. v. Wilson, 93 Ga.App. 94, 91 S.E.2d 71; Central of Georgia Ry. Co. v. Sharpe, 83 Ga.App. 12, 62 S.E.2d 427; and Atlantic Coast Line Railroad Company v. Futch, 263 F.2d 701. The duty to exercise ordinary care, under the circumstances of this case, is not affected by the fact that the deceased was a trespasser. Williams v. Southern Railway Co., 11 Ga.App. 305, 75 S.E. 572. The basis for the award by the trial court to the plaintiff was an application of Georgia’s comparative negligence doctrine and was that plaintiff’s loss of her son injured and damaged her in the sum of $30,000; that defendant’s negligence was the proximate cause of her loss; that plaintiff’s minor son was negligent in going upon the double track and his negligence in this respect contributed to but was not the sole proximate cause of his death, and, further, that the negligence of the youth did not equal nor exceed the negligence of the defendant, but that only twenty-five percent of the fault was attributable to the plaintiff’s son. Applying this to the Code of Georgia 94-703, the award of $22,500 was proper. Also Georgia Railway & Power Company v. Belote, 20 Ga.App. 454, 93 S.E. 62. Considering all the findings of the trial court, with the “clearly erroneous” rule in mind, we come to the conclusion that said findings are supported by the great preponderance of the evidence and" }, { "docid": "22360939", "title": "", "text": "68-1504(6) (a) and 68-1610 (c) of the Georgia Code Annotated, and that in so failing he was guilty of negligence per se. Even if Gross was thus guilty of negligence, such negligence does not automatically invoke the rule of avoidance so as to bar a recovery by the plaintiffs. This is a jury question. See Atlantic Coast Line R. Co. v. Key, 5 Cir. 1952, 196 F.2d 64, 67, where the court said: “* * * [Q]uestions as to whether the plaintiff could, by the exercise of ordinary care, have avoided the consequenees of the defendant’s negligence after it had, or should have, become known, are such as lie peculiarly within the province of the jury to determine (L[ouisville] & N. R. Co. v. Stafford, 146 Ga. 206, 91 S.E. 29; Central of Ga. Ry. Co. v. Larsen, 19 Ga.App. 413, 91 S.E. 517; Central of Ga. Ry. Co. v. Barnett, 35 Ga.App. 528 [1], 530 [1], 134 S.E. 126)”. Reed v. Southern Railway Co., supra. [37 Ga.App. 550, 140 S.E. 921, 923.] Such questions will not be determined by the Court as a matter of law, except in plain and undisputed cases. Callaway v. Pickard, supra. [68 Ga.App. 637, 642, 23 S.E.2d 564, 570.] Cf. Seaboard Air Line R. Co. v. Deese, 5 Cir., 185 F.2d 290. * * *. To the same effect is the statement of the court in Central of Georgia Ry. Co. v. Barnett, 35 Ga.App. 528, 134 S.E. 126, 128 as follows: * * * [Q]uestions as to whether the plaintiff could have avoided the consequences of defendant’s negligence by the exercise of ordinary diligence, are such as lie peculiarly within the province of the jury to determine. The defendant makes the same argument with reference to the alleged violation by Gross of Section 68-1661 of the Georgia Code Annotated, which provides as follows: Whenever any person driving a vehicle approaches a railroad grade crossing, the driver of such vehicle shall stop within 50 feet but not less than 15 feet from the nearest rail of such railroad, and shall not proceed until he" }, { "docid": "22360936", "title": "", "text": "by the Court as a matter of law. Georgia Code, Section 94-506; Georgia Code, Section 94-703; Georgia Code, Section 105-603; Seaboard Airline R. v. Deese, 5 Cir., 185 F.2d 290; Atlantic Coast Line R. Co. v. Key, 5 Cir., 196 F.2d 64; Atlantic Coast Line R. Co. v. Kammerer, 5 Cir., 239 F.2d 115; Georgia Railroad & Banking Co. v. Otts, 5 Cir., 245 F.2d 561; Southern Railway Company v. Jolley, 5 Cir., 267 F.2d 934. This matter is so well settled under Georgia law that further consideration of it and citations of further authorities appear wholly unnecessary. Id. at 293-294. It should be remembered that the statute itself (Section 94-703, Georgia Code Annotated) provides that if the plaintiff and defendant are both at fault, the plaintiff may recover “but the damages shall be diminished by the jury in proportion to the amount of fault attributable to him.” [Emphasis supplied.] V Duty of Avoidance Section 105-603 of the Georgia Code Annotated sets forth the avoidance rule as follows: If the plaintiff by ordinary care could have avoided the consequences to himself caused by the defendant’s negligence, he is not entitled to recover. In other cases the defendant is not relieved, although the plaintiff may in some way have contributed to the injury sustained. This rule is defined in Wilson v. Pollard, 62 Ga.App. 781, 10 S.E.2d 407 (1940), in the following language: A person can not be charged with the duty of using any degree of care and diligence to avoid the negligence of a wrongdoer until he has reason to apprehend the existence of such negligence. The duty imposed by law upon all persons to exercise ordinary care to avoid the consequences of another’s negligence does not arise until the negligence of such other is existing, and is either apparent, or the circumstances are such that an ordinarily prudent person would have reason to apprehend its existence * * *. Failure to exercise ordinary care on the part of the person injured before the negligence complained of is apparent or should have been reasonably apprehended will not preclude a" }, { "docid": "18362359", "title": "", "text": "machinery, or dangers incident to an employment, unknown to the servant, of which the master knows or ought to know, he shall give the servant warning in respect thereto.” Georgia Code §§ 66-301. This section of the Code is, however, merely declarative of principles developed in the case law. . “Assumption of risks by servants. Lack of knowledge of defects or dangers. — A servant assumes the ordinary risks of his employment, and is bound to exercise his own skill and diligence to protect himself. In suits for injuries arising from the negligence of the master in failing to comply with the duties imposed by Section 66-301, in order that the servant may recover it must appear that the master knew or ought to have known of the incompetency of the other servant, or of the defects or danger in the machinery supplied; and it must also appear that the servant injured did not know and had not equal means of knowing such fact, and by the exercise of ordinary care could not have known thereof.” Georgia Code § 66-303. . See, e. g., Atlanta, B. & C. B. Co. v. King, 1936, 55 Ga.App. 1, 189 S.E. 580; International Cotton Mills v. Webb, 1918, 22 Ga.App. 309, 96 S.E. 16; Bush v. West Yellow Pine Co., 1907, 2 Ga.App. 295, 58 S.E. 529; Moore v. Dublin Cotton Mills, 1906, 127 Ga. 609, 56 S.E. 839. . See, e. g., Borochoff v. Fowler, 1958, 98 Ga.App. 411, 105 S.E.2d 764; Elliott v. Tifton Mill & Gin Co., 1913, 12 Ga.App. 498, 77 S.E. 667. . See Bush v. West Yellow Pine Co., supra; Atlanta, B. & C. R. Co. v. King, 1936, 55 Ga.App. 1, 189 S.E. 580. . This is watered down somewhat under Georgia’s modified comparative negligence concept. Under this rule a negligent plaintiff may recover unless his negligence is equal to (or greater than) that of the defendant, although damages will be reduced in proportion to the amount of negligence attributable to the plaintiff. Williams v. United States, 5 Cir., 1967, 379 F.2d 719, 722. See Georgia" }, { "docid": "5178569", "title": "", "text": "his machine so under control as to be able to stop it before colliding with a stationary obstruction in the roadway ahead, whieh before it was reached was disclosed by the automobile lights. Baltimore & Ohio R. Co. v. Goodman, 275 U. S. 66, 48 S. Ct. 24, 72 L. Ed. 167, 56 A. L. R. 645; Herron v. Southern Pacific Co., 283 U. S. 91, 51 S. Ct. 383, 75 L. Ed. 857. “That Pennington was a passenger does not alter the situation in his favor. He was not chargeable with the negligence of the driver although he might have been guilty of contributory negligence barring recovery if by failure to exercise ordinary care he did not see the obstruction and did not warn the driver in time for its avoidance. Bradley v. Mo. Pac. R. Co. (C. C. A.) 288 P. 484; Garrett v. Pennsylvania R. Co. (C. C. A.) 47 F. (2d) 10. As the defense of contributory negligence would depend upon pleading and proof by appellee, we may pass that without decision. However, there is no doubt that the negligence of the driver was the proximate cause of the accident and therefore the passenger could not recover. Orton v. Pennsylvania R. Co. (C. C. A.) 7 F.(2d) 36; Brinson v. Davis, 32 Ga. App. 37, 122 S. E. 643; Cent. of Ga. R. Co. v. Adams, 39 Ga. App. 577, 147 S. E. 802; Tidwell v. Atlanta, B. & C. R. R., 42 Ga. App. 744, 157 S. E. 535. “The demurrers were properly sustained.” In Calloway v. Pennsylvania R. Co. (Scheetz v. Pennsylvania R. Co.), 62 F.(2d) 27, at page 28 (C. C. A. 4), the following significant statement appears in the decision of the court: “Prom the circumstances and the evidence, it seems to us that, had the plaintiffs used even the slightest degree of care before starting across the tracks, they could have avoided the accident. They could at least have avoided running into the railroad engine running at the very slow speed at which it was running at the time.” In the" }, { "docid": "4335588", "title": "", "text": "the crossing obscured by smoke and with the north-bound train and the peach ears preventing the enginemen from seeing whether any one was approaching it from the east; and that this was negligence. They must also have found that Wilbanks, knowing of the double track, was negligent in driving upon the crossing with the smoke upon it so that his eyes were not of full use and with the noise of the north-bound train in his ears, when by a slight delay both senses would have become available to ascertain whether the crossing was safe. The law of Georgia is thus stated in the Civil Code, § 2781: “No person shall recover damage from a railroad company for injury to himself or his property, where the same is done by his consent, or is caused by his own negligence. If the complainant and ' the agents of the company are both at fault, the former may recover, but the damages shall be diminished by the jury in proportion to the amount of default attributable to him.” Section 4426: “If the plaintiff by ordinary care could have avoided the consequences to himself caused by the defendant’s negligence, he is not entitled to recover. But in other eases the defendant is not relieved, although the plaintiff may in some way have contributed to the injury sustained.” Concurrent contributory negligence of the plaintiff under these sections is not a bar, but is only a ground to reduce the recovery. The failure to exercise ordinary care to escape the consequences of the defendant’s negligence which is a bar refers to situations in which the defendant’s negligence exists first and is apparent or may readily be known, and the plaintiff, by the exercise of ordinary care, can escape its consequences but does not. Western & Atlantic R. R. Co. v. Ferguson, 113 Ga. 708, 39 S. E. 306, 54 L. R. A. 802. It is the doctrine of “the last clear chance” applied to the plaintiff instead of to the defendant. On the evidence stated, we think the jury might conclude that the injury was" }, { "docid": "13260362", "title": "", "text": "before it was reached was disclosed by the automobile lights. Baltimore & Ohio R. Co. v. Goodman, 275 U. S. 66, 48 S. Ct. 24, 72 L. Ed. 167, 56 A. L. R. 645; Herron v. Southern Pacific Co., 283 U. S. 91, 51 S. Ct. 383, 75 L. Ed. 857. That Pennington was a passenger does not alter the situation in his favor. He was not chargeable with the negligence of the driver although he might have been guilty of contributory negligence barring recovery if by failure to exercise ordinary care he did not see the obstruction and did not warn the driver in time for its avoidance. Bradley v. Mo. Pac. R. Co. (C. C. A.) 288 P. 484; Garrett v. Pennsylvania R. Co. (C. C. A.) 47 F.(2d) 10. As the defense of contributory negligence would depend upon pleading and proof by appellee, we may pass that without decision. However, there is no doubt that the negligence of the driver was the proximate cause of the accident and therefore the passenger could not recover. Orton v. Pennsylvania R. Co. (C. C. A.) 7 F.(2d) 36; Brinson v. Davis, 32 Ga. App. 37, 122 S. E. 643; Cent. of Ga. R. Co. v. Adams, 39 Ga. App. 577, 147 S. E. 802; Tidwell v. Atlanta B. & C. R. R., 42 Ga. App. 744, 157 S. E. 535. The demurrers were properly sustained. The records present no reversible errors. The judgment in each, case is affirmed." }, { "docid": "7929760", "title": "", "text": "Ga.Code, Acts 1935, p. 443. The contention of plaintiff is that defendants were guilty of negligence in violating the statute; and in not having lights on the truck so that approaching cars could see it in time to avoid it. The contention of defendants is that the Chevrolet was traveling at an excessive rate of speed, approximately seventy miles an hour, in violation of another Georgia statute, which limited speed on the highway for such cars to forty miles per hour. Sec. 68-301, Ga.Code 1933. And that this was the sole proximate cause of the accident. Defendants, appellants in 9059, assign error to the denial of a directed verdict in their favor. The evidence before the jury was in conflict as to whether the truck was lighted or whether it could have been moved onto the shoulder of the road to clear the highway to a greater extent, notwithstanding it could not move under its own power, and also as to the speed of the Chevrolet. Under the law of Georgia negligence of the driver of an automobile is not attributable to a passenger. Fuller v. Mills, 36 Ga.App. 357, 136 S.E. 807. But when his negligence is the sole proximate cause of the accident neither he nor a passenger may recover. Brown v. So. Ry. Co., 5 Cir., 61 F.2d 399. Conceding that if the driver of an automobile colliding with a stationary object fails to exercise ordinary care, his negligence may be considered the sole proximate cause of the accident, according to the circumstances of the case, the evidence in this case was not so conclusive as to require the court, as a matter of law, to determine that the negligence of the driver was the sole proximate cause of the accident. Cf. Kelly v. Locke, 186 Ga. 620, 198 S.E. 754. Resolving the conflict in the evidence in favor of plaintiff the jury might have concluded the negligence of the husband was merely a contributing cause. This would bar his claim and allow plaintiff to recover for her personal in juries. It was not error to deny" }, { "docid": "12327071", "title": "", "text": "R. Co. v. Goodman, 275 U.S. 66, 48 S.Ct. 24, 72 L.Ed. 167, 56 A.L.R. 645; as interpreted and approved in Pokora v. Wabash R. R. Co., 292 U.S. 98, 54 S.Ct. 580, 78 L.Ed. 1149, 91 A.L.R. 1049; Northern Pacific Co. v. Bacon, 9 Cir., 91 F.2d 173; Great Northern R. Co. v. Taulbee, 9 Cir., 92 F.2d 20; Brown v. Southern Ry. Co., 5 Cir., 61 F.2d 399. The other plaintiff, Jackson, though, of course, not chargeable with the negligence of the driver, was in law required to exercise care for his own safety. Bradley v. Missouri Pac. Ry. Co., 8 Cir., 288 F. 484; Garrett v. Pennsylvania R. Co., 7 Cir., 47 F.2d 10; Brown v. Southern Ry. Co., supra. When his familiarity with and knowledge of the surrounding conditions of which the driver was not as well informed as he are taken. into account, we think it plain that he was ‘ guilty of contributory negligence as matter of law, in failing to advise and warn the driver of the presence of the defendant’s stop sign, of whicfi he knew, and that he should not cross the tracks without stopping, or at least putting down his windows so that he could see and hear the signals of an approaching train. It was Jackson, and not Giles, who first discovered and gave warning of the train. Had he insisted on the driver taking the proper precautions by stopping, or at least letting down the windows so that the approaching train could be seen or heard, the injury would not have occurred. It was Giles’ contributory negligence, in running past the stop sign and on to the tracks, in a closed and befogged car, and Jackson’s in permitting him to do so without protest or warning, w^iich was in law the proximate cause of the accident, and because it was, neither were entitled to recover. We think the requested instruction should have been given. For the error in not giving it, the judgment is reversed and the cause remanded for further and not inconsistent proceedings. Reversed and remanded." }, { "docid": "22360937", "title": "", "text": "have avoided the consequences to himself caused by the defendant’s negligence, he is not entitled to recover. In other cases the defendant is not relieved, although the plaintiff may in some way have contributed to the injury sustained. This rule is defined in Wilson v. Pollard, 62 Ga.App. 781, 10 S.E.2d 407 (1940), in the following language: A person can not be charged with the duty of using any degree of care and diligence to avoid the negligence of a wrongdoer until he has reason to apprehend the existence of such negligence. The duty imposed by law upon all persons to exercise ordinary care to avoid the consequences of another’s negligence does not arise until the negligence of such other is existing, and is either apparent, or the circumstances are such that an ordinarily prudent person would have reason to apprehend its existence * * *. Failure to exercise ordinary care on the part of the person injured before the negligence complained of is apparent or should have been reasonably apprehended will not preclude a recovery. See also Bach v. Bragg Brothers, 53 Ga.App. 574, 186 S.E. 711 (1936); Central of Georgia Ry. Co. v. Larsen, 19 Ga.App. 413, 91 S.E. 517 (1916); and Freeman v. Nashville Ry. Co., 120 Ga. 469, 47 S.E. 931 (1904). In the case of Stanaland v. Atlantic Coast Line R. Co., 5 Cir. 1951, 192 F.2d 432, 434, the court said: * * * This duty on the part of the plaintiff to exercise ordinary care to avoid the consequences of the defendant’s negligence necessarily applies to a situation where there is opportunity to avoid the consequences and does not arise until the negligence of the defendant becomes apparent, or the circumstances are such that an ordinary, prudent person would apprehend its existence. Western & A. R. Co. v. Ferguson, 113 Ga. 708, 39 S.E. 306, 54 L.R.A. 802. The defendant says that this rule bars plaintiffs’ recovery here because the driver of plaintiffs’ car failed to heed the warnings and instructions of the two highway signs on highway 74 in violation of Sections" } ]

[ { "docid": "3125348", "title": "", "text": "shares of Pure Carbonic was increased to 132,-299, and taxpayer acquired 100% ownership by a cash purchase of 14,771 shares followed by the exchange described above. Thus about 82% of the Pure Carbonic stock was acquired for shares of Air Reduction stock and the balance for cash. Also during 1935 taxpayer sold to certain of its officers 3,200 shares of its own treasury stock at $57.65 a share, or a total of $184,480. This stock had previously been issued and reacquired at a cost, found by the first-in-first-out method, of $120,973.81, making a gain on the transaction of $63,-506.19. This was included in the tax return filed for 1935, but the taxpayer now claims that its inclusion was erroneous. These sales to the officers were made pursuant to options granted them two years before in order to afford them an opportunity to acquire a stock interest in the company. The price of $57.65 was the average cost to the taxpayer of all the treasury stock it held at the time. The Commissioner assessed deficiencies of $97,083.98 and $35,303.26 in taxpayer’s income and excess profits taxes respectively for 1935, and in its petition to the Board of Tax Appeals for a redetermination, the taxpayer sought a refund of $11,907.41 for overpayment. The two questions presented to the Board were 'whether any taxable gain was realized (a) from the exchange of treasury stock for the stock of Pure Carbonic and (b) from the sale of treasury stock to the officers of the company. The Board found for the taxpayer on both issues. The Board largely founded its opinion that these transactions were not income to the taxpayer under § 22(a) of the 1934 Revenue Act, 26 U.S.C.A.Int.Rev.Acts, page 669, upon the case of Helvering v. R. J. Reynolds Tobacco Co., 306 U.S. 110, 59 S.Ct. 423, 83 L.Ed. 536, which held invalid the retroactive application of a Treasury Decision almost identical with Art. 22 (a)-16 of Treasury Regulations 86 which the Commissioner seeks to apply prospectively here. The Board said further that there was an intimation in the R. J. Reynolds Co." } ]

[ { "docid": "6193789", "title": "", "text": "identical with its predecessor. The problem of whether a corporation’ makes a profit, in a real sense, or in a tax sense, by dealing in its own shares, has been thoroughly discussed in the opinion of this court in the case of Anderson, Clayton & Co. v. United States, 122 F.Supp. 837, 129 Ct.Cl. 295, affirmed 350 U.S. 55, 76 S.Ct. 25, 100 L.Ed. 43. This opinion will not attempt any comparable discussion. The following opinion of the accounting profession is of interest. “Apparently there is general agreement that the difference between the purchase price and the stated value of a corporation’s common stock purchased and retired should be reflected in capital surplus. Your committee believes that while the net asset value of the shares of common stock outstanding in the hands of the public may be increased or decreased by such purchase and retirement, such transactions relate to the capital of the corporation and do not give rise to corporate profits or losses. Your committee can see no essential difference between (a) the purchase and retirement of a corporation’s own common stock and' the subsequent issue of common shares, and (b) the purchase and resale of its own common stock. [Restatement and Revision of Accounting Research Bulletins, American Institute of Accountants, 1953, pp. 13-14.]” The accountants, then, do not recognize the distinction made by the Treasury Regulations between the original issue of stock and the sale of treasury stock. It would, no doubt, be a crude attempt at over-simplification of an abstruse subject to suggest that when a corporation buys its own shares it is paying a debt, its obligation to the selling shareholder to pay him his proper share of dividends and the proceeds of liquidation, if that should occur. When it sells its shares it is creating a debt, the above-described obligation, to the new shareholder. Neither the payment nor the incurring of a debt results in a gain or a loss, except in unusual circumstances. Financially, there would not seem to be one penny’s difference between the consequences to the corporation of an original issue of" }, { "docid": "782459", "title": "", "text": "failed to complete purchase of stock treated as ordinary income). Here Van de Maele and O’Connor entered into executory agreements, but none of these was ever consummated. Taxpayer retained all the voting rights to the stock, one circumstance indicating that a sale or exchange was never completed. See Kuehner v. Commissioner, 214 F.2d 437, 441 (1st Cir. 1954). The payments received were to secure taxpayer’s agreement to escrow the particular number of shares of Graphic Arts stock to which each executory transaction related. No part of the $95,000 was ever applied in reduction of the notes. Rather, taxpayer brought suit on the notes and no credit on them was given for the $95,000 payments made. Thus, the payments were more in the nature of liquidated damages; as such they were taxable as ordinary income. Mittleman, Smith, Melone, Boatman, and Johnson, supra. There need have been no specific provision for liquidated damages in any of the escrow agreements. Binns v. United States, supra; Melone v. Commissioner, supra; Myers v. Commissioner, 287 F.2d 400 (6th Cir.), cert. denied, 368 U.S. 828, 82 S.Ct. 48, 7 L.Ed.2d 31 (1961). See also United States Freight Co. v. United States, 422 F.2d 887, 893 — 894 (Ct.Cl.1970) (purchaser afforded ordinary loss treatment for down payment sacrificed when intended purchase of stock not completed and sale or exchange accordingly not resulting). The Tax Court relied upon Rule 1 of § 100 of the New York Personal Property Law (McKinney’s Consol.Laws, c. 41, 1962), one of the pre-Code rules for ascertaining intention as to when “the property in the goods [is to pass] to the buyer.” But this provision related to the sale of chattels; stock transfers were governed by § 162 of the Personal Property Law, which required that “[t]itle . to the shares . . . can be transferred only” by delivery of the certificates, either endorsed or with accom panying assignment or power of attorney. Coyne v. Chatham Phenix National Bank & Trust Co., 155 Misc. 656, 660, 281 N.Y.S. 271, 277 (City Ct. N.Y.1935). Federal tax law is concerned with the “benefits and" }, { "docid": "23248062", "title": "", "text": "86, 96, 92 Ct.Cl. 217, 238 (1940), cert. denied, 313 U.S. 578, 61 S.Ct. 1095, 85 L.Ed. 1535 (1941)), and should adequately apprise the Internal Revenue Service that a refund is sought and for certain years. Newport Industries, Inc. v. United States, 60 F.Supp. 229, 104 Ct.Cl. 38 (1945); Rosengarten v. United States, 181 F.Supp. 275, 278-279, 149 Ct.Cl. 287, 293-294, (1960), cert. denied, 364 U.S. 822, 81 S.Ct. 60, 5 L.Ed.2d 53; Newton v. United States, 163 F.Supp. 614, 619, 143 Ct.Cl. 293, 300 (1958); Sweeney v. United States, Ct.Cl. No. 188-55, decided Jan. 18, 1961, 285 F.2d 444, 446; Philipsborn v. United States, 53 F.2d 133, 188-139, 72 Ct.Cl. 545, 554-55 (1931), cert. denied, 285 U.S. 548, 52 S.Ct. 405, 76 L.Ed. 939 (1932). It is not enough that the Service have in its possession information from which it might deduce that the taxpayer is entitled to, or might desire, a refund; nor is it sufficient that a claim involving the same ground has been filed for another year or by a different taxpayer. Rosengarten v. United States, supra; Byron Weston Co. v. United States, 87 F.Supp. 955, 956-957, 115 Ct.Cl. 232, 234-235 (1950). On the other hand, the writing should not be given a crabbed or literal reading, ignoring all the surrounding circumstances which give it body and content. The focus is on the claim as a whole, not merely the written component. See Newton v. United States, supra, 163 F.Supp. at 619, 143 Ct.Cl. at 300 (1958); Higginson v. United States, 81 F.Supp. 254, 267-268, 113 Ct.Cl. 131, 157-158 (1948). In addition to the writing and some form of request for a refund, the only essential is that there be made available sufficient information as to the tax and the year to enable the Internal Revenue Service to commence, if it wishes, an examination into the claim. Under these standards, and in the light of the particular circumstances, this court has found informal refund claims based upon an objection on the back of a check paying the tax (Night Hawk Leasing Co. v. United States, 18" }, { "docid": "2835011", "title": "", "text": "taxable gain that could be computed. Al though it recognized the emotion, tension and practical necessities involved in divorce negotiations and resultant property settlements, the Court nevertheless concluded that there was an arm’s length transaction between husband and wife, The Court then concluded that the value of the relinquishment of the marital rights could be measured: It must be assumed, we think, that the parties acted at arm’s length and that they judged the marital rights to be equal in value to the property for which they were exchanged. There was no evidence to the contrary here. Absent a readily ascertainable value it is accepted practice where property is exchanged to hold, as did the Court of Claims in Philadelphia Park Amusement Co. v. United States, 126 F.Supp. 184, 189, 130 Ct.Cl. 166, 172 (1954), that the values “of the two properties exchanged in an arms length transaction are either equal in fact, or are presumed to be equal.” Id. at 72, 82 S. Ct. at 1194; accord, Seas Shipping Company v. Commissioner of Internal Revenue, 2 Cir. 1967, 371 F.2d 528, cert. denied, 387 U.S. 943, 87 S.Ct. 2076, 18 L.Ed.2d 1330 (computing fair market value of shares of stock); Southern Natural Gas Company v. United States, 1969, 412 F.2d 1222,188 Ct.Cl. 302 (stock); Tasty Baking Company v. United States, 1968, 393 F.2d 992, 184 Ct.Cl. 56 (value of employees’ services, past and future, presumed to equal the fair market value of property contributed to employee pension trust). The presumed-equivalence-in-value rule of Davis has generally been limited to “cases involving valuation of property for which there is little or no market.” Seas Shipping Company v. Commissioner, supra, 371 F.2d at 529; Southern Natural Gas Company v. United States, supra, 412 F.2d at 1252. However, there will be “little or no market” even for shares of stock traded over an established exchange if there are other factors such as the large size of the block in question which the market price does not reflect. Seas Shipping Company v. Commissioner, supra. In such circumstances use of the Davis presumed-equivalence-in-value rule may" }, { "docid": "21268663", "title": "", "text": "ascertained from all of the facts and circumstances”. [H.R.Rep.No.1337, supra, 83rd Cong., 2d Sess. a268; see: S. Rep.No.1622, supra, 83rd Cong., 2d Sess. 426, U.S.Code Cong, and Admin.News 1954, pp. 4410, 5069; Treas.Reg. 118, § 39.22 (a) — 15, 26 C.F.R. § 39.22(a) — 15 (1953).] By the enactment of § 1032, the question of corporate intent or purpose in determining whether or not the corporation was in fact “dealing” in its shares was eliminated as one of the determining “facts and circumstances”, in keeping with the statutory pattern that issuance of stock in exchange for property should not generally be made a taxable transaction. [Cf.: Int.Rev.Code of 1954, §§ 305, 351, 354, 355, 361, 1032, 1036, 26 U.S.C. §§ 305, 351, 354, 355, 361, 1032, 1036; United States v. Anderson, Clayton & Co., 350 U.S. 55, 76 S.Ct. 25, 100 L.Ed. 43 (1955); General Electric Co. v. United States, 299 F.2d 942, 945-947 (Ct.C1.1962); Girard Trust Corn Exch. Bank v. United States, 191 F.Supp. 551 (E.D.Pa.1961).] By the same token, then, § 1032 should not be construed to require a determination of motive or intent on the part of purchasers of a corporation’s stock; otherwise the statutory purpose to objectify the applicable standard with respect. to such transactions would be frustrated. Such a standard, as applied to § 1032, is emphasized in Treasury Regulation § 1.1032-1 (a) [26 C.F.R. § 1.1032-1 (a)], which declares that: “The disposition by a corporation of shares of its own stock * * * for money or other property does not give rise to taxable gain or deductible loss to the corporation regardless of the nature of the transaction or the facts and circumstances involved”. In keeping with this view, during the course of trial of the case at bar, evidence of the state of mind of purchasers of plaintiff’s membership certificates was excluded under Fed.R.Civ.P. 43(c), 28 U.S.C., on the issue as to whether “stock” transactions under § 1032 had occurred during the tax period in dispute. However, as already observed, such evidence has been held to be relevant to the issue of" }, { "docid": "14071950", "title": "", "text": "donated. In 1939 it sold at an average price of $55.93 per share, 11,591 shares of treasury stock of which 5,583 had been donated and 6,008 purchased. In 1941 it sold at an average price of $66.74 per share, 7,877 shares of treasury stock all of which had been purchased. The Commissioner determined the deficiencies for 1939 by including in the respondent’s gross income for that year $88,925.99 as the gain upon its sales of stock and the deficiencies for 1941 by including $4,769.15 in its gross income as the gain upon the sales it made in that year. As before stated, the parties are in agreement as to the amount of such gains, and dispute only the taxability of them. As the decisions have already made too clear for further debate, Congress intended in § 22(a) of the Internal Revenue Code to include in gross income everything 'which in fact is “income derived from any source whatever.” Sec. 19.22(a)-l6 of T.R. 103, which has been held valid, Commissioner v. Air Reduction Co., Inc., 2 Cir., 130 F.2d 145, certiorari denied, 317 U.S. 681, 63 S.Ct. 201, 87 L.Ed. 546; Dow Chemical Co. v. Kavanagh, 6 Cir., 139 F.2d 42, deals specifically with the acquisition or disposition by a corporation of shares of its own capital stock. It provides, after the general observation that the real nature of the transaction is what counts and after expressly excluding the receipt of the subscription price of shares upon their original issuance as a transaction which can result in recognizable gain or loss, that “if a corporation deals in its own shares as it might in the shares of another corporation, the resulting gain or loss is to be computed in the same manner as though the corporation were dealing in the shares of another.” Since the respondent bought part of the shares it sold and was given the remainder we must decide whether (1) the respondent’s gains from the sales of 'the shares it had acquired by purchase are gross income within the above statute and regulations and, if so, (2) whether" }, { "docid": "8508849", "title": "", "text": "the common stock of the deceased at its book value as of July 31 preceding the stockholder’s death. One M. D. Anderson, one of the chief officers of the company, was originally issued 31,000 shares. During the development of the corporation, Mr. Anderson had transferred shares of his stock, pursuant to the agreement, to junior officials as they assumed more duties and responsibilities, until at the time of his death in 1939 he owned 18,574 shares. These shares the corporation purchased at their book value of $50.79 per share. This stock was not retired, but was retained as treasury stock. While in the treasury, it could not be voted nor were dividends paid on it. The company in 1944 sold 6,500 of these shares to junior officials at the then book value of $112.68 per share. The difference between the price paid Anderson’s estate and that received from the sale of the shares to the junior officials was $402,285, on which the United States imposed a long-term capital-gains tax of $100,571.25. Respondent paid the tax and sued in the Court of Claims to recover the amount. The respondent took the position that no long-term capital gain resulted because it was not dealing in its stock “as it might in the shares of another corporation,” as contemplated in Treasury Regulations 111, § 29.22 (a)-15. The Court of Claims agreed with respondent and entered judgment for recovery of the tax paid, with interest. 129 Ct. Cl. 295, 122 F. Supp. 837. We granted certiorari, 348 U. S. 936, because of the claim of conflict with decisions of the Courts of Appeals. The sole question therefore is whether, in the circumstances of this case, Treasury Regulations 111, § 29.22 (a)-15 makes the sale of this treasury stock of the corpora tion a taxable transaction under § 22 (a) of the Internal Revenue Code of 1939. Article 66 of Treasury Regulations 74, promulgated under the Revenue Act of 1928, provided that a corporation which purchases its own stock, holds it as treasury stock, and later sells it “realizes no gain or loss” from such" }, { "docid": "23329606", "title": "", "text": "had been paid, and “no reasonable person conid assume that payment would ever be likely to occur.” 135 F.2d 340, 341. In terms, the interest did not become payable unless a default occurred on the Series A bonds and those bonds were paid in full. “* * * [OJnly events approximating the bankruptcy of the debtor could bring about any reasonable possibility of payment of interest on the B bonds.” 135 F.2d 340, 342. On these facts the taxpayer sought to deduct the interest on the Series B bonds. . See Commissioner of Internal Revenue v. O. P. P. Holding Corp., 2 Cir., 1935, 76 F.2d 11; John Kelley Co., 1943, 1 T. C. 457, affirmed 1946, 326 U.S. 521, 66 S.Ct. 299, 90 L.Ed. 278; Commissioner of Internal Revenue v. Page Oil Co., 2 Cir., 1942, 129 F.2d 748. . Pepper v. Litton, 1939, 308 U.S. 295, 60 S.Ct. 238, 84 L.Ed. 281 (fraud); Taylor v. Standard Gas & Electric Co., 1939, 306 U.S. 307, 618, 59 S.Ct. 543, 83 L.Ed. 669 (abuse of power to dominate); Isidor Dobkin, 1950, 15 T.C. 31, affirmed per curiam 2 Cir., 1951, 192 F.2d 392. . A debenture dividend is normally taxable as a “dividend” to the extent of available earnings; and non-taxable, but reducing the basis of the stock, to the extent exceeding available earnings. See § 115(a) of 1934 Act; §§ 301(c), 316, and 317(a) of 1954 Code. Recapitalization exchanges are dealt with in § 112(b) (3) and (g) of the 1934 Act and §§ 354(a) and 368(a) (1) (E) of the 1934 Code. . See Plant v. Walsh, D.C.D.Conn.1922, 280 F. 722; Bulger Block Coal Co. v. United States, 1931, 48 F.2d 675, 71 Ct.Cl. 636; Helvering v. McGlue’s Estate, 4 Cir., 1941, 119 F.2d 167; Commissioner of Internal Revenue v. Goldwyn, 9 Cir., 1949, 175 F.2d 641; Crellin’s Estate v. Commissioner, 9 Cir., 1953, 203 F.2d 812, certiorari denied 346 U.S. 873, 74 S.Ct. 123, 98 L.Ed. 381. . Lansing Community Hotel Corp., 1950, 14 T.C. 183, affirmed 6 Cir., 1951, 187 F.2d 487; Toledo Blade Co., 1948," }, { "docid": "7940215", "title": "", "text": "taxable as a capital net gain instead of as ordinary income. In their claims they did not rely upon this alternative ground. This ground was first advanced on September 20, 1939, in a communication addressed to the Commissioner of Internal Revenue. This reads: “Furthermore, we call your attention to the fact that the Class ‘B’ stock of the Western Dairy Products Company which you have valued at 50$ a share for the purpose of determining gain or loss had an actual value at the time of the exchange in 1925 of approximately $10.00 a share. The value of 50$ per share was an arbitrary value fixed by the underwriters but the first sales of this stock in 1925 ranged from $5.-00 to $10.00 a share. Consequently, the amount of $125,366.98 representing profit from the sale of this stock, as shown in your report, is overstated. If it is finally determined that the liquidation of the Berch Ice Cream Company in 1925 was not a part of the plan of reorganization, and constituted a taxable transaction, then the basis for determining gain or loss on subsequent sale of the stock received is the fair market value of the Class ‘B’ stock of the Western Dairy Products Company, which ranged from $5.00 to $10.00 a share, and the arbitrary value of 50$ per share cannot be used as a base. Full facts and information regarding the value of this Class ‘B’ stock has previously been submitted to the Department and'is on file in your office.” Plainly, this has no reference whatever to plaintiffs’ position as set forth in their claims for refund and cannot be considered as an amendment thereof. When this communication was filed the statute had long since run and, therefore, plaintiffs are in no position to rely upon this ground. Wrightsman Petroleum Co. v. United States, 35 F.Supp. 86, 92 Ct.Cl. 217, certiorari denied, 313 U.S. 578, 61 S.Ct. 1095, 85 L.Ed. 1535; Hanna Furnace Corp. v. United States, 31 F.Supp. 136, 90 Ct.Cl. 439; United States v. Henry Prentiss & Co., 288 U.S. 73, 53 S.Ct. 283, 77" }, { "docid": "3722459", "title": "", "text": "The petitioners urge that the evidentiary facts established by the record bound the tax court to infer that their withdrawals were received as loans rather than distributions of corporate earnings. They make a very plausible case. All the documentary evidence, including the corporation’s books, is consistent with the theory of loans. Had the tax judge drawn the desired inference we could not say it was unsupported by substantial evidence. But he inferred the opposite and, if it was a permissible inference, we must accept it. It is not an appellate court’s function “to weigh the evidence, to draw inferences from the facts, and to choose between conflicting inferences.” Wilmington Trust Co. v. Helvering, 316 U.S. 164, 168, 62 S.Ct. 984, 986, 86 L.Ed. 1352. For reasons about to be stated we think the inference was a permissible one. That the withdrawals were recorded on the corporate books as debits against the taxpayers; that they were not proportionate to holdings of stock nor participated in by all the shareholders; and that the formalities of a dividend declaration were lacking is not conclusive against a finding that the withdrawals were dividends. Chattanooga Sav. Bank v. Brewer, 6 Cir., 17 F.2d 79, certiorari denied 274 U.S. 751, 47 S.Ct. 764, 71 L.Ed. 1332; Hadley v. Commissioner, 59 App.D.C. 139, 36 F.2d 543; Christopher v. Burnet, 60 App.D.C. 365, 55 F.2d 527; Anketell Lumber & Coal Co. v. United States, 1 F.Supp. 724, 76 Ct.Cl. 210; cf. Wiese v. Commissioner, 8 Cir., 93 F.2d 921, certiorari denied 304 U.S. 562, 58 S.Ct. 944, 82 L.Ed. 1529. If the sums withdrawn were actually intended to be loans, it seems extraordinary that they should have been allowed to roll up for nearly forty years until they reached the staggering total of more than $3,000,000 owing by persons who had nothing but their shares of stock with which to pay. The book value of the stock computed without including the petitioners’ “loans” as assets was about $1300 per share at the end of 1940. Hence the debt of each taxpayer was greater than the value of his" }, { "docid": "23548549", "title": "", "text": "had determined, the Tax Court entered its decision that there was no deficiency in the taxpayer’s income tax for its taxable year ended June 30, 1970. The Tax Court’s finding that the worthless stock represented a capital loss thus became irrelevant to the taxpayer’s 1970 liability. The Commissioner took no appeal from the Tax Court’s decision. Windle’s argument on appeal is directed to the Tax Court’s finding that the worthless stock represented a capital loss. The taxpayer contends that because the Tax Court found that the company’s predominant motive in acquiring the stock was related to business and not to investment, the worthless stock should have been considered an ordinary business loss. A substantial body of case law outside this circuit, said to have been evolved by lower courts from Corn Products Refining Co. v. Commissioner, 350 U.S. 46, 76 S.Ct. 20, 100 L.Ed. 29 (1955), is cited in support of this contention, e. g., Schiumberger Technology Corp. v. United States, 443 F.2d 1115, 1119-21 (5th Cir. 1971); Steadman v. Commissioner, 424 F.2d 1, 5-6 (6th Cir.), cert. denied, 400 U.S. 869, 91 S.Ct. 103, 27 L.Ed.2d 109 (1970); Union Pacific R.R. v. United States, 524 F.2d 1343,1358-59 (Ct.C1.1975), cert. denied, 429 U.S. 827, 97 S.Ct. 83, 50 L.Ed.2d 89 (1976); Waterman, Largen & Co. v. United States, 189 Ct.Cl. 364, 419 F.2d 845, 847 (1969), cert. denied, 400 U.S. 869, 91 S.Ct. 103, 27 L.Ed.2d 109 (1970); Booth Newspapers, Inc. v. United States, 303 F.2d 916, 920-21, 157 Ct.Cl. 886 (1962). The Commissioner does not dispute the existence of a sizable body of precedent in other circuits for a “predominant motive test”, and seems to concede that were that yardstick to be applied here, the Tax Court’s resolution of the worthless stock issue would indeed be open to question. But the Commissioner urges this circuit to reject any motive test at all. He argues that Congress defined the term “capital asset” as “property held by the taxpayer (whether or not connected with his trade or business),” 26 U.S.C. § 1221, and enumerated in the statute only five specific exclusions." }, { "docid": "8792170", "title": "", "text": "out the contours of section 165 of the Internal Revenue Code of 1954 as it applies to intangibles and to view the facts in this context, and it is our view that in this case loss treatment is justified. The courts and the Service in the cited authorities likewise appear to have reached reasonable results. We stress, though, that it will be the rare case in which the loss of an intangible, clearly a part of the goodwill of a business, or the entire goodwill of a business, can be deducted before the going concern is sold or abandoned. The burden will be on the taxpayer to establish that the loss qualifies as an identifiable event or a closed transaction under section 165 of the Internal Revenue Code of 1954. In its fourth defense, defendant assumes the claimed deduction to be allowable, but asserts that it may not be deducted in 1955. Defendant reasons that since a loss is deductible only if “sustained during the taxable year and not compensated for by insurance or otherwise” (Int.Rev.Code of 1954, section 165 (a)), there can be no deduction if there exists a reasonable prospect of recovery. This is a proper construction of the statutory rule as developed by many cases. United States v. S. S. White Dental Mfg. Co., 61 Ct.Cl. 143 (1925), aff’d, 274 U.S. 398, 47 S.Ct. 598, 71 L.Ed. 1120 (1937); Lewellyn v. Elec. Reduction Co., 275 U.S. 243, 48 S.Ct. 63, 72 L.Ed. 262 (1927); Juniper Inv. Co. v. United States, Ct.Cl., 338 F.2d 356, decided November 13, 1964; Minneapolis, St. P. & S. S. Marie R.R. Co. v. United States, Ct.Cl. No. 360-58, decided January 24, 1964; Wyman v. United States, 166 F.Supp. 766, 143 Ct.Cl. 846 (1958); Marks v. United States, 58 F.Supp. 182, 102 Ct.Cl. 508 (1944); Pacific Fruit Exchange v. United States, 26 F.Supp. 228, 88 Ct.Cl. 300 (1939); Montgomery v. United States, 23 F.Supp. 130, 87 Ct.Cl. 218 (1938), cert. denied, 307 U.S. 632, 59 S.Ct. 833, 83 L.Ed. 1514 (1939); Ruppert v. United States, 22 F.Supp. 428, 86 Ct.Cl. 396 (1938), cert." }, { "docid": "6193788", "title": "", "text": "gives rise to taxable gain or deductible loss depends upon the real nature of the transaction, which is to be ascertained from all its facts and circumstances. The receipt by a corporation of the subscription price of shares of its capital stock upon their original issuance gives rise to neither taxable gain nor deductible loss, whether the subscription or issue price be in excess of, or less than, the par or stated value of such stock. “But if a corporation deals in its own shares as it might in the shares of another corporation, the resulting gain or loss is to be computed in the same manner as though the corporation were dealing in the shares of another. * * * Any gain derived from such transactions is subject to tax, and any loss sustained is allowable as a deduction where permitted by the provisions of the Internal Revenue Code.” The foregoing regulation was applicable to all the years in question except 1952. Section 39.22 (a)-15 of Regulations 118, applicable to the year 1952, is identical with its predecessor. The problem of whether a corporation’ makes a profit, in a real sense, or in a tax sense, by dealing in its own shares, has been thoroughly discussed in the opinion of this court in the case of Anderson, Clayton & Co. v. United States, 122 F.Supp. 837, 129 Ct.Cl. 295, affirmed 350 U.S. 55, 76 S.Ct. 25, 100 L.Ed. 43. This opinion will not attempt any comparable discussion. The following opinion of the accounting profession is of interest. “Apparently there is general agreement that the difference between the purchase price and the stated value of a corporation’s common stock purchased and retired should be reflected in capital surplus. Your committee believes that while the net asset value of the shares of common stock outstanding in the hands of the public may be increased or decreased by such purchase and retirement, such transactions relate to the capital of the corporation and do not give rise to corporate profits or losses. Your committee can see no essential difference between (a) the purchase" }, { "docid": "11313664", "title": "", "text": "States, supra; and cf. Commissioner v. Snite, supra; Kirschenbaum v. Commissioner, 2 Cir., 155 F.2d 23; Alpers v. Commissioner, 2 Cir., 126 F.2d 58. Also we do not consider treasury stock to be an asset of the corporation unless the corporation deals in its own shares as it might in the shares of another corporation. Anderson, Clayton & Co. v. United States, 122 F.Supp. 837, 129 Ct.Cl. 295, certiorari granted, 348 U.S. 936, 75 S.Ct. 356. After a consideration of the purpose of section 115(g) and the many cases that have been decided under this section, we are of the opinion that the transaction in this case was a sale and not a distribution essentially equivalent to a taxable dividend. The plaintiff is entitled to recover and judgment will be entered for plaintiff in the sum of $11,070.57, with interest as provided by law. It is so ordered. JONES, Chief Judge, and LARA-MORE, MADDEN, and WHITAKER, Judges, concur. . Treasury Regulations 111. “Sec. 29.115-9. Distribution in redemption or cancellation of stock taxable as a dividend. — If a corporation cancels or redeems its stock (whether or not such stock was issued as a stock dividend) at such time and in such manner as to make the distribution and cancellation or redemption in whole or in part essentially equivalent to the distribution of a taxable dividend, the amount so distributed in redemption or cancellation of the stock, to the extent that it represents a distribution of earnings or profits accumulated after February 28, 1913, shall be treated as a taxable dividend. “The question whether a distribution in connection with a cancellation or redemption of stock is essentially equivalent to the distribution of a taxable dividend depends upon the circumstances of each ease. A cancellation or redemption by a corporation of a portion of its stock pro rata among all the shareholders will generally be considered as effecting a distribution essentially equivalent to a dividend distribution to the extent of the earnings and profits accumulated after February 28, 1913. On the other hand; a cancellation or redemption by a corporation of all" }, { "docid": "9456661", "title": "", "text": "of corporate assets following distribution should realistically be attributed to the stockholders or to the corporation. Commissioner of Internal Revenue v. Court Holding Co., 1945, 324 U.S. 331, 65 S.Ct. 707, 89 L.Ed. 981; United States v. Cumberland Public Service Co., 1950, 338 U.S. 451, 70 S.Ct. 280, 94 L.Ed. 251 affirming 1949, 83 F.Supp. 843, 113 Ct.Cl. 460. Other courts have tested completed dividend transactions under the “business purpose” doctrine of Gregoxy v. Helvering, 1935, 293 U.S. 465, 55 S.Ct. 266, 79 L.Ed. 596, when it appeared that distributions of property were sham transactions made only to avoid taxes. Commissioner of Internal Revenue v. Transport Trading & Terminal Corp., 2 Cir., 1949, 176 F.2d 570. This court has decided related problems. American Telegraph & Cable Co. v. United States, 1925, 61 Ct.Cl. 326, certiorari denied, 1926, 271 U.S. 660, 46 S.Ct. 473, 70 L.Ed. 1137; Guinness v. United States, 1947, 73 F.Supp. 119, 109 Ct.Cl. 84; Rudco Oil & Gas Co. v. United States, 1929, 82 F.Supp. 746, 113 Ct.Cl. 206; Cumberland Public Service Co. v. United States, supra; Telephone Directory Advertising Co. v. United States, 1956, 142 F.Supp. 884, 135 Ct.Cl. 670. The question presented by the case at bar is yet another aspect of the over-all problem, the question being whether the fact of liquidation prior to the actual collection of the accounts receivable prevents their being realized by and taxed to the corporation even though the corporation itself earned the money and fully perfected its right to receive the money prior to liquidation. The resolution of this problem must start with the decision of the Supreme Court in General Utilities & Operating Co. v. United States, 1935, 296 U.S. 200, 56 S.Ct. 185, 80 L.Ed. 154, a case which concerned the distribution by a corporation of appreciated stock as a dividend in kind to its stockholders. Relying on United States v. Kirby Lumber Co., 1931, 284 U.S. 1, 52 S.Ct. 4, 76 L.Ed. 131, the Commissioner declared a taxable gain to the utility corporation upon the distribution of the stock in payment of a dividend. The" }, { "docid": "19039508", "title": "", "text": "v. Air Reduction Co., 2 Cir., 130 F.2d 145; Aviation Capital v. Pedrick, 2 Cir., 148 F.2d 165, 160 A.L.R. 1080; Allen v. National Manufacture & Stores Corp., 5 Cir., 125 F.2d 239; Helvering v. Edison Bros. Stores, 8 Cir., 133 F.2d 575; Brown Shoe Co. v. Commissioner, 8 Cir., 133 F.2d 582; United States v. Stern Bros. and Co., 8 Cir., 136 F.2d 488; Edwin L. Wiegand Co. v. United States, 60 F.Supp. 464, 104 Ct.Cl. 111. As shown by the Tax Court decisions above referred to, the Tax Court has construed the Regulations as meaning that when a corporation purchases its own shares, not as an investment or for the purpose of resale at a profit, but for some other corporate purpose, such as for sale to its officers or employees under an incentive or profit-sharing plan, or for adjusting the respective holdings of different officers or directors, and later the stock is sold either to carry out that purpose or to further some other corporate purpose, such as to provide necessary capital for an expansion or replacement program, in which the element of profit on the resale is incidental, the corporation has not dealt in its own shares as it might in the shares of another corporation, and the resulting gain is not taxable. The cases which take the opposite view have construed the Regulations as meaning that regardless of the original purpose of the corporation in purchasing its shares, if the corporation does not actually cancel and retire the shares so purchased but later sells them, regardless to whom they are sold, the corporation has sold an asset in the same way as when it sells the shares of another corporation which it might own, and that any resulting gain is the same type of taxable income as would result from a profit derived from the sale of any other asset. We are of the opinion that this latter view is the correct one, in addition to being the view held at the present time by what seems to be the great weight of authority. Section" }, { "docid": "8571340", "title": "", "text": "stock upon their original issuance gives rise to neither taxable gain nor deductible loss, * * * “But if a corporation deals in its own shares as it might in the shares of another corporation, the resulting gain or loss is to, be computed in the same manner as though the corporation were dealing in the shares of another. * * * ” After finding the facts the court determined as a conclusion of law that “In purchasing and selling said 50 shares of stock the plaintiff [taxpayer] did not deal in its own shares either as it dealt or as it might have dealt in the shares of another corporation. Plaintiff did not deal in its own stock.” Judgment was accordingly rendered against the appellant and in favor of the taxpayer for $1,485.50 with interest and costs. The government contends that the court erred in so determining and adjudging. The judgment appealed from was rendered July 7, 1942. Thereafter on February 3, 1943, this court filed its opinions and decisions in Edison Bros. Stores, Inc., v. Helvering, 8 Cir., 133 F.2d 575, certiorari denied 63 S.Ct. 1166, 87 L.Ed. -, and Brown Shoe Co., Inc., v. Commissioner, 8 Cir., 133 F.2d 582. The issues presented here are the same as the questions decided in those cases, and the same arguments are urged in support of the contentions of the parties here as there. In the cited cases the court held that the purchase by a corporation of its own stock for the purpose of reselling it to its employees is immaterial under the statute and the regulations; that when a corporation buys its own stock, holds it in its treasury as an asset, and later sells it at a profit, such gain is taxable income. The Second and Fifth Circuit Courts of Appeals reached the same result in Allen v. National Manufacture & Stores Corp., 5 Cir., 125 F.2d 239, certiorari denied 316 U.S. 679, and Commissioner v. Air Reduction Company, 2 Cir., 130 F.2d 145, certiorari denied 317 U.S. 681, 63 S.Ct. 201, 87 L.Ed. -. These decisions" }, { "docid": "23248068", "title": "", "text": "we adopt them. In sufficient degree, the agent had before him the very elements defendant says were missing; plaintiff was not required, for this informal claim for refunds all of one type, to match particular amounts to particular years, or to point out that this claim related only to 1942, 1943, and 1945 (not to 1944, 1946 or 1947). An informal claim which is partially informative may be treated as valid even though “too general” or suffering from a “lack of specificity”' — at least where those defects have been remedied by a formal claim filed after the lapse of the statutory period but before the rejection of the informal request. United States v. Kales, supra, 314 U.S. at 194, 62 S.Ct. at 218. Plaintiff’s formal refund claims (in May 1953 and January 1954) were admittedly com píete and they were filed well before the rejections of all claims in 1955 and 1958. Any irregularities in the informal claim were thus cured retroactively. United States v. Memphis Cotton Oil Co., 288 U.S. 62, 71-72, 53 S.Ct. 278, 77 L.Ed. 619 (1933); United States v. Kales, supra; Jones v. United States, 5 F.Supp. 146, 150, 78 Ct.Cl. 549, 557 (1983), cert. denied, 293 U.S. 566, 55 S.Ct. 76, 79 L.Ed. 665 (1934); Higginson v. United States, supra, 81 F.Supp. 254, 268, 113 Ct.Cl. 131, 158 (1948); Cumberland Portland Cement Co. v. United States, supra, 104 F.Supp. 1010, 1015, 122 Ct.Cl. 580, 593-594 (1952); Newton v. United States, supra, 163 F.Supp. 614, 619, 143 Ct.Cl. 293, 301 (1958); Rosengarten v. United States, supra, 181 F.Supp. 275, 278-279, 149 Ct.Cl. 287, 293 (1960), cert. denied, 364 U.S. 822, 81 S.Ct. 60, 5 L.Ed. 2d 53; Hrcka v. Crenshaw, supra, 140 F.Supp. 350, 352-353 (E.D.Va., 1956), aff’d 237 F.2d 372 (C.A. 4, 1956). It is irrelevant that the formal demands did not refer to the informal claim and were not designated as amendments. Whatever the nomenclature, they supplied the missing information before the Revenue Service had rejected the informal claim, and were therefore equivalent to amendments in substance. None of this court’s earlier decisions" }, { "docid": "11313663", "title": "", "text": "of the corporation to recover the distributions. It is not necessary to answer the plaintiff’s first contention that there was no redemption of the stock here in question since it was held as treasury stock for the purpose of resale, because of the view we take on the primary question of equivalence. It may be noted however, that if all of the other essentials of this section were met, the mere fact that the corporation carried the stock as treasury stock would not in and of itself prevent the application of section 115(g). If the mere carrying of the stock as treasury stock would preclude the application of section 115(g), the section could easily be circumvented and the intent of Congress completely frustrated by a close corporation through the simple expedient of distributing earnings for stock and indefinitely carrying the stock on the corporation’s books as treasury stock. See Keefe v. Cote, supra; Boyle v. Commissioner, 3 Cir., 187 F.2d 557, certiorari denied, 342 U.S. 817, 72 S.Ct. 31, 96 L.Ed. 618; Wall v. United States, supra; and cf. Commissioner v. Snite, supra; Kirschenbaum v. Commissioner, 2 Cir., 155 F.2d 23; Alpers v. Commissioner, 2 Cir., 126 F.2d 58. Also we do not consider treasury stock to be an asset of the corporation unless the corporation deals in its own shares as it might in the shares of another corporation. Anderson, Clayton & Co. v. United States, 122 F.Supp. 837, 129 Ct.Cl. 295, certiorari granted, 348 U.S. 936, 75 S.Ct. 356. After a consideration of the purpose of section 115(g) and the many cases that have been decided under this section, we are of the opinion that the transaction in this case was a sale and not a distribution essentially equivalent to a taxable dividend. The plaintiff is entitled to recover and judgment will be entered for plaintiff in the sum of $11,070.57, with interest as provided by law. It is so ordered. JONES, Chief Judge, and LARA-MORE, MADDEN, and WHITAKER, Judges, concur. . Treasury Regulations 111. “Sec. 29.115-9. Distribution in redemption or cancellation of stock taxable as a dividend." }, { "docid": "21268662", "title": "", "text": "prompted the act and the intent with which the act was done, in order to ascertain whether fees paid for membership certificates, as in the present case, were meant to be “in exchange for stock”, or were exchanged for services or other benefits. [Cf. Affiliated Gov’t Employees’ Distrib. Co., 37 T.C. 909 (1962).] However, I am of the opinion, for reasons now to be stated, that the proper test in determining recognition of gain or loss under § 1032 is whether “money or other property” was in fact surrendered to a corporation in return for its “stock”, without regard to the motive or intent of either party to the transaction. [Compare Community T.V. Ass’n v. United States, supra, 203 F. Supp. 270.] Section 1032 has no counterpart in the Internal Revenue Code of 1939, and the purpose of its enactment in 1954 was to remove uncertainties in then-existing law, where recognition of gain or loss was dependent upon “whether the transaction constitutes the dealing by a corporation in its own shares which is to be ascertained from all of the facts and circumstances”. [H.R.Rep.No.1337, supra, 83rd Cong., 2d Sess. a268; see: S. Rep.No.1622, supra, 83rd Cong., 2d Sess. 426, U.S.Code Cong, and Admin.News 1954, pp. 4410, 5069; Treas.Reg. 118, § 39.22 (a) — 15, 26 C.F.R. § 39.22(a) — 15 (1953).] By the enactment of § 1032, the question of corporate intent or purpose in determining whether or not the corporation was in fact “dealing” in its shares was eliminated as one of the determining “facts and circumstances”, in keeping with the statutory pattern that issuance of stock in exchange for property should not generally be made a taxable transaction. [Cf.: Int.Rev.Code of 1954, §§ 305, 351, 354, 355, 361, 1032, 1036, 26 U.S.C. §§ 305, 351, 354, 355, 361, 1032, 1036; United States v. Anderson, Clayton & Co., 350 U.S. 55, 76 S.Ct. 25, 100 L.Ed. 43 (1955); General Electric Co. v. United States, 299 F.2d 942, 945-947 (Ct.C1.1962); Girard Trust Corn Exch. Bank v. United States, 191 F.Supp. 551 (E.D.Pa.1961).] By the same token, then, § 1032 should" } ]

[ { "docid": "23208452", "title": "", "text": "is not intended to prevent employers from changing the job responsibilities of their 40 to [70] year old employees. Neither is the Act intended to give 40 to [70] year old employees the right to walk out and sue their employer because they dislike their changed job responsibilities.” Frazer v. KFC National Management Co., 491 F.Supp. 1099, 1105 (M.D.Ga.1980). To establish a violation of the ADEA, therefore, a plaintiff must prove that she suffered a materially adverse change in the terms or conditions of her employment because of her employer’s discriminatory conduct. Dorsch v. L.B. Foster Co., 782 F.2d 1421, 1424 (7th Cir.1986); see 29 U.S. C. § 621(a)(1) (stressing that the ADEA was designed to promote the interests of older workers who had lost jobs or suffered similar disadvantages in their efforts to retain employment). The district court found that the record before it failed to present a genuine issue of fact that the District’s reassignment of Spring to the dual principalship of Lincoln-Erdman and Jackson was a materially adverse change in the terms or conditions of her employment. In doing so, the court noted that other principals had had dual building assignments in the past; that other principals also were reassigned under the district-wide reorganization; that Lon-go cited legitimate business reasons for transferring Spring from the Grant elementary school; that the socio-economic backgrounds of the students at Lincoln-Erdman and Jackson were upper middle class, whereas at Grant the students’ backgrounds were more diverse; that the Lincoln and Jackson schools had no special programs, whereas Grant had a program for emotionally disturbed children; that the number of students at both Lincoln-Erd-man and Jackson was less than or equal to the number of students at Grant; that the staffs of the schools were of a relatively equal size; and, last but not least, that Spring received a new two-year employment contract and a merit pay increase. According to the district court, the only negative aspect of Spring’s new job assignment was that she would have to travel farther from home to get to work, and she would be reimbursed for" } ]

[ { "docid": "19781771", "title": "", "text": "366 (2d Cir.1980) (holding that plaintiffs proffered evidence that she had tailored her master’s and doctoral coursework to prepare her for teaching junior high students so that her reassignment from teaching junior high art classes to elementary school art classes rendered her twenty years of experience useless was sufficient to establish an adverse employment action); with, e.g., Missick v. City of New York, 707 F.Supp.2d 336, 349 n. 5 (E.D.N.Y.2010) (refusing to recognize plaintiffs objection to having been reassigned from teaching younger children to teaching sixth grade as an adverse employment actions); Ticali v. Roman Catholic Diocese of Brooklyn, 41 F.Supp.2d 249, 265 (E.D.N.Y.1999) (holding that teacher’s transfer to pre-kindergarten class from first grade class was not an adverse employment action because teacher produced “no material evidence that her transfer obliged her to perform tasks that were less appropriate for her skills than her prior position or adverse to her in any other legally cognizable way”). While defendants failed to scrupulously honor each of Sotomayor’s teaching preferences, there is no evidence that her assignments were “materially less prestigious, materially less suited to h[er] skills and expertise, or materially less conducive to career advancement” such that they constituted an adverse employment action. See Galabya, 202 F.3d at 641. 4. Teaching Load “The assignment of a heavier teaching load to plaintiff for [a given] semester does not constitute an adverse employment action.” Browne, 419 F.Supp.2d at 333-34; see also, e.g., DelaPaz v. N.Y.C. Police Dep’t, No. 01 Civ. 5416, 2003 WL 21878780, at *4 (S.D.N.Y. Aug. 8, 2003) (finding that the assignment of extra work to plaintiff did not qualify as an adverse employment action); Fridia v. Henderson, No. 99 Civ. 10749, 2000 WL 1772779, at *7 (S.D.N.Y. Nov. 30, 2000) (finding that the plaintiffs allegations of excessive work did not amount to an adverse employment action). The reasonable work load assigned to the plaintiff does not trigger a finding of discrimination in this case. 5. Room Assignment Mere undesirable classroom assignments generally do not rise to the level of an adverse employment action. See, e.g., Galabya, 202 F.3d at 640 (holding" }, { "docid": "3476544", "title": "", "text": "1412, 1420 (8th Cir.1995) (job transfer with poor working conditions was not an adverse employment action); Flaherty v. Gas Research Inst., 31 F.3d 451, 457 (7th Cir.1994) (job transfer without loss in salary benefits or responsibilities was not adverse action though the plaintiff had to report to a former subordinate); Murphy v. Yellow Freight Sys., Inc., 832 F.Supp. 1543, 1550-51 (N.D.Ga.1993) (no adverse employment action found where plaintiff did not receive as high of a pay raise as she thought she deserved, she received night and weekend shifts where that was a normal alternating assignment for all employees, employer told her that her clothing violated the company’s dress code, and plaintiff complained that her supervisor documented their conversations in writing and put his notes in her personnel file); Steiner v. Showboat Operating Co., 25 F.3d 1459, 1465 (9th Cir.1994), cert. denied, 513 U.S. 1082, 115 S.Ct. 733, 130 L.Ed.2d 636 (1995) (transferring female employee to another shift was not an adverse employment action); Harlston v. McDonnell Douglas Corp., 37 F.3d 379, 382 (8th Cir.1994) (reassigning plaintiff to more stressful job was not an adverse action). Finally other courts have noted that a plaintiffs subjective perception that one position is more desirable than another is not controlling. Kelleher v. Flawn, 761 F.2d 1079, 1086 (5th Cir.1985). Here, Burlington Northern argues that White’s reassignment to track labor duties did not materially disadvantage White. First, White maintained her position as a track laborer throughout her employment with the railroad. Even when assigned responsibility for operating the forklift, White also worked on track maintenance tasks. Further, White never suffered a termination, a demotion evidenced by a wage or salary decrease, a less distinguished job title, a material loss of benefits, or significantly diminished material responsibilities. White does not dispute that most lateral transfers are not adverse employment actions. Instead, she says the district court properly found that White suffered an adverse employment action because of the “unique circumstances” language in Hollins. 188 F.3d at 662 (quoting the Grady factor that a materially adverse change in employment might be indicated by “other indices that might" }, { "docid": "10835087", "title": "", "text": "title, a material loss of benefits, significantly diminished material responsibilities, or other indices that might be unique to a particular situation”), with Flaherty v. Gas Research Institute, 31 F.3d 451, 456 (7th Cir.1994) (a “bruised ego” is not enough); Kocsis v. Multi-Care Management, Inc., 97 F.3d 876, 887 (6th Cir.1996) (demotion without change in pay, benefits, duties, or prestige insufficient) and Harlston v. McDonnell Douglas Corp., 37 F.3d 379, 382 (8th Cir.1994) (reassignment to more inconvenient job insufficient). Id. at 761, 118 S.Ct. 2257; see also id. at 768, 118 S.Ct. 2257 (Thomas, J., dissenting) (“In race discrimination cases, employer liability has turned on whether the plaintiff has alleged an adverse employment consequence, such as firing or demotion, or a hostile work environment. If a supervisor takes an adverse employment action because of race, causing the employee a tangible job detriment, the employer is vicariously liable for resulting damages.”). These developments allow us to announce the following rule: a plaintiff who is made to undertake or who is denied a lateral transfer — that is, one in which she suffers no diminution in pay or benefits— does not suffer an actionable injury unless there are some other materially adverse consequences affecting the terms, conditions, or privileges of her employment or her future employment opportunities such that a reasonable trier of fact could conclude that the plaintiff has suffered objectively tangible harm. Mere idiosyncracies of personal preference are not sufficient to state an injury. See, e.g., DiIenno v. Goodwill Indus., 162 F.3d 235, 236 (3d Cir.1998); Doe, 145 F.3d at 1448 (finding “no case, in [the 11th] or any other circuit, in which a court explicitly relied on the subjective preferences of a plaintiff to hold that plaintiff had suffered an adverse employment action”); Smart v. Ball State Univ., 89 F.3d 437, 441 (7th Cir.1996) (emphasizing that “not everything that makes an employee unhappy is an actionable adverse action”). In both Ellerth and Faragher v. City of Boca Raton, 524 U.S. 775, 118 S.Ct. 2275, 141 L.Ed.2d 662 (1998), the Court specifically identified “discharge, demotion, or undesirable reassignment” as three examples" }, { "docid": "21630368", "title": "", "text": "employees they had previously trained. Few workers in today’s job market would choose to give up access to computers so they could spend the winter on trenchers and with shovels, digging the holes that made way for other workers to complete the skilled part of the labor. This preference is not idiosyncratic; it is universal. The district court also likened this case to Flaherty v. Gas Research Inst., 31 F.3d 451 (7th Cir.1994). Flaherty’s position as principal scientist was to be eliminated and he was instead offered a position as senior project manager. The company considered this a lateral transfer with no change in salary or benefits. The responsibilities of the two jobs were comparable although the new position held greater job growth potential. 31 F.3d at 457. Flaherty objected to the new position largely because it involved a title change and required him to report to a former subordinate who was merely a manager when he had previously reported to a senior vice president. 31 F.3d at 457. We found that the title change and different reporting relationship were largely semantic “where the employee’s salary, benefits, and level of responsibility would remain unchanged.” Id. We noted that the change in reporting may well have bruised Flaherty’s ego but a plaintiffs perception that a lateral transfer would be personally humiliating is insufficient, absent other evidence, to establish a materially adverse employment action. Id. It is the other evidence that distinguishes the instant case, evidence that the level of responsibility diminished significantly and that skills involving gas line repair and equipment maintenance were set aside so that the plaintiffs could learn to dig ditches to the satisfaction of a manager who had to be restrained from calling them “niggers.” Traylor v. Brown is similarly distinguishable because the plaintiff there was not demoted or disciplined and her job responsibilities were not materially diminished. 295 F.3d 783 (7th Cir.2002). Crady is no more comparable than the other cases on which the district court relied. Crady v. Liberty Nat’l Bank & Trust Co. of Indiana, 993 F.2d 132 (7th Cir.1993). Crady was hired as" }, { "docid": "8685080", "title": "", "text": "Thus, the court concludes that Mr. Johnson has not established a prima-facie case for race discrimination. Aka, 156 F.3d at 1288; Johnson, 836 F.Supp. at 18. Because Mr. Johnson has failed to present specific facts that would enable a reasonable jury to find in his favor on this claim, the court grants the defendant’s motion for summary judgment on the race discrimination claim. Greene, 164 F.3d at 675; Celotex, 477 U.S. at 322, 106 S.Ct. 2548. D. The Plaintiff Fails to Establish a Prima-Facie Case of Retaliatory Reassignment The defendant argues that the plaintiff fails to establish a prima-facie case of retaliatory reassignment because the plaintiff provides no evidence that the transfer to the General Investigations Unit was an adverse action. The court concludes that the reassignment was not an adverse action and therefore grants the motion for summary judgment as it pertains to the transfer. In Brown v. Brody, the D.C. Circuit held that: [A] plaintiff who is made to undertake or who is denied a lateral transfer — -that is, one in which she suffers no diminution in pay or benefits- — does not suffer an actionable injury unless there are some other materially adverse con sequences affecting the terms, conditions, or privileges of her employment or her future employment opportunities such that a reasonable trier of fact could conclude that the plaintiff has suffered objectively tangible harm. 199 F.3d 446, 457 (D.C.Cir.1999) (emphasis added). The plaintiff bears the burden of showing that the transfer caused materially adverse consequences, which could include a considerable change in benefits, significantly different responsibilities, a lost promotion, or a termination. Id. at 452, 456; Flaherty v. Gas Research Inst., 31 F.3d 451, 457 (7th Cir.1994) (explaining that a “bruised ego” is insufficient when contesting a lateral transfer). Minor changes in opportunities or work-related duties do not constitute actionable injuries unless a decrease in salary or work-hour changes accompanies them. Stewart v. Evans, 275 F.3d 1126, 1134 (D.C.Cir.2002); Forkkio, 306 F.3d at 1130-31. Other than asserting vaguely that the transfer “deprived [him] of the [ability] to maximize the liaison opportunities he had developed" }, { "docid": "23481889", "title": "", "text": "had a tangential effect on her employment, it did not rise to the level of an ultimate employment decision intended to be actionable under Title VII. In Harlston, 37 F.3d at 382, we stated that “[cjhanges in duties or working conditions that cause no materially significant disadvantage ... are insufficient to establish the adverse conduct required to make a prima facie ease.” There, we held that a secretary’s reassignment to a different position without any reduction in title, salary or benefits, even though the new position involved fewer secretarial duties and was more stressful, did not constitute an adverse employment action. We stated that “[t]his describes nothing ‘more disruptive than a mere inconvenience or an alteration of job responsibilities.’ ” Id. (quoting Crady v. Liberty Nat’l Bank & Trust Co., 993 F.2d 132, 136 (7th Cir.1993)). See also Flaherty v. Gas Research Inst., 31 F.3d 451, 457 (7th Cir.1994) (holding a semantic change in title and a “bruised ego” did not constitute adverse employment action where pay, benefits and level of responsibility remained the same); Spring v. Sheboygan Area Sch. Dist., 865 F.2d 883, 886 (7th Cir.1989) (finding “public humiliation” is not sufficient to establish age discrimination because “public perceptions were not a term or condition of [the plaintiffs] employment”). The clear trend of authority is to hold that a “purely lateral transfer, that is, a transfer that does not involve a demotion in form or substance, cannot rise to the level of a materially adverse employment action.” Williams v. Bristol-Myers Squibb Co., 85 F.3d 270, 274 (7th Cir.1996) (emphasis in original). A transfer involving only minor changes in working conditions and no reduction in pay or benefits will not constitute an adverse employment action, “[otherwise every trivial personnel action that an irritable ... employee did not like would form the basis of a discrimination suit.” Id. Appellant did not suffer the type of adverse employment action that is necessary to establish a prima facie case of discrimination under Title VII. Appellant offers no evidence to show that an exchange of her staff, while her salary, benefits, responsibilities, title and" }, { "docid": "16959992", "title": "", "text": "suffered an adverse employment action”); Smart v. Ball State Univ., 89 F.3d 437, 441 (7th Cir.1996) (“not everything that makes an employee unhappy is an actionable adverse action”); Flaherty v. Gas Research Institute, 31 F.3d 451, 456 (7th Cir.1994) (a “bruised ego” is not enough). As the Seventh Circuit has stated: Obviously a purely lateral transfer, that is, a transfer that does not involve a demotion in form or substance, cannot rise to the level of a materially adverse employment action. A transfer involving no reduction in pay and no more than a minor change in working conditions will not do, either. Otherwise every trivial personnel action that an irritable, chip-on-the-shoulder employee did not like would form the basis of a discrimination suit. The Equal Employment Opportunity Commission, already staggering under an avalanche of filings too heavy for it to cope with, would be crushed, and serious complaints would be lost among the trivial. Williams v. Bristol-Myers Squibb Co., 85 F.3d 270, 274 (7th Cir.1996) (cited with approval in Galabya v. New York City Bd. of Educ., 202 F.3d 636, 641 (2d Cir.2000)). If ever there was a case of a “chip-on-the-shoulder” plaintiff, this is it. To be adverse, an employment action must involve the deprivation of “some ‘tangible job benefits’ such as ‘compensation, terms, conditions or privileges’ of employment.’ ” Alfano v. Costello, 294 F.3d 365, 373 (2d Cir.2002) (quoting Karibian v. Columbia Univ., 14 F.3d 773, 778 (2d Cir.), cert. denied, 512 U.S. 1213, 114 S.Ct. 2693, 129 L.Ed.2d 824 (1994)). Adverse employment actions are considered material if they are “of such quality or quantity that a reasonable employee would find the conditions of her employment altered for the worse.” Torres v. Pisano, 116 F.3d 625, 632 (2d Cir.), cert. denied, 522 U.S. 997, 118 S.Ct. 563, 139 L.Ed.2d 404 (1997). Here, plaintiff has failed to present any evidence, aside from his own personal preferences, showing that any of his transfers or reassignments could be considered adverse under these standards. While I recognize that a transfer may constitute an adverse action under some circumstances, such as where it" }, { "docid": "14888851", "title": "", "text": "159 F.3d 1346 (2d Cir.1998), there is no dispute that, as with a Title VII claim, a plaintiffs subjective feelings concerning his employer’s actions are insufficient to establish the “adverse employment action” necessary to support a First Amendment retaliation claim. For example, the plaintiff in Garber, an Orthodox Jew employed by the New York City Police Department, wrote more than 700 letters over a nearly 25 year period complaining about the acts of various police officers. In 1995, the plaintiff was transferred from a job he “cherished” to another position with the same job description, job title, days and hours worked, salary and benefits. The plaintiff then commenced an action alleging both Title VII and First Amendment retaliation claims. In dismissing the plaintiffs First Amendment claim, Judge Keenan held that, “[wjithout intending to minimize the strength of Plaintiffs feelings about the transfer, ... his purely subjective feelings about a transfer which, by objective standards, did not negatively alter the terms and conditions of his employment in any respect, does not rise to the level of a First Amendment violation.” Garber, 1997 WL 525396, at *5. The Second Circuit affirmed. See Garber v. N.Y.C. Police Dep’t, 159 F.3d 1346 (Table), 1998 WL 514222 (2d Cir. June 12, 1998). The higher court agreed that “a plaintiffs subjective percep tion that a demotion has occurred is not enough,” and held that, although it did not intend to minimize the plaintiffs “unhappiness about the transfer, we cannot say that it rises to the level of a constitutional violation.” Id. at *3. See also Collins v. Christopher, 48 F.Supp.2d 397, 410 (S.D.N.Y.1999) (Parker, J.) (plaintiffs allegations that her recommendations were not followed insufficient to establish adverse employment action); Mishk v. Destefano, 5 F.Supp.2d 194, 202 (S.D.N.Y.1998) (Parker, J.) (reorganization of plaintiffs unit in ways with which plaintiff disagreed insufficient to support First Amendment retaliation claim); Bal v. Hughes, No. 92 CIV 5453, 1998 WL 43129, at *5 (S.D.N.Y. Feb.2, 1998), aff'd, 166 F.3d 1199 (2d Cir.1998) (requiring objective harm for retaliatory conduct to support First Amendment retaliation claim). Therefore, Proposed Claim 3— Plaintiffs’ First Amendment" }, { "docid": "7569470", "title": "", "text": "does not involve a demotion in form or substance, cannot rise to the level of a materially adverse employment action. A transfer involving no reduction in pay and no more than a minor change in working conditions will not do, either. Otherwise every trivial personnel action that an irritable, ehip-on-the-shoulder employee did not like would form the basis of a discrimination suit. The Equal Employment Opportunity Commission, already staggering under an avalanche of filings too heavy for it to cope with, would be crushed, and serious complaints would be lost among the trivial. Williams v. Bristol-Myers Squibb Co., 85 F.3d 270, 274 (7th Cir.1996); see also Ledergerber, 122 F.3d at 1144 (quoting the same); Garber v. New York City Police Dept., No. 97-9191, 1998 WL 514222, at *4 (2d Cir. June 12, 1998) (unpublished opinion) (quoting the same); Dekalb County Sch. Dist., 145 F.3d at 1449 (quoting the same); but see Randlett, 118 F.3d at 862 (concluding that a refusal to transfer can form the basis for a Title VII anti-retaliation claim when the plaintiff has submitted evidence showing that such transfers for hardship reasons are so customary that they are a “privileges” of employment). Stancu might have argued, but did not, that the transfer he sought was not purely lateral because he thought that the position at Valley Forge would be more secure. After all, Stancu thought it apparent that Gables would soon lose their management contract at Indian Creek. Yet even this argument would fail. As we stated in Mat-tern, “Title VIPs anti-retaliation provision refers to ultimate employment decisions, and not to an ‘interlocutory or mediate’ decision which can lead to an ultimate decision.” Mattern, 104 F.3d at 708. Transferring an employee to a less secure (but otherwise similar) position is obviously an “interlocutory or mediate decision which can lead to an ultimate decision.” Had Gables denied Stancu the transfer and then let him go when the Indian Creek contract expired, Stancu may have had a cognizable anti-retaliation claim. But Stancu did not lose his job, and was in fact transferred to Valley Forge when the Indian Creek" }, { "docid": "16959991", "title": "", "text": "cannot be considered “ad verse,” however. They may not have been to plaintiffs liking, but more than that is required. See Hunt v. Rapides Healthcare Sys., LLC, 277 F.3d 757, 771 n. 8 (5th Cir.2001) (“the focus is on the objective qualities of the positions, rather than an employee’s subjective preference for one position over another. That subjective preference, alone, is an insufficient basis for finding an adverse employment action”); Davis v. Town of Lake Park, Florida, 245 F.3d 1232, 1239 (11th Cir.2001) (“the employee’s subjective view of the significance and adversity of the employer’s action is not controlling; the employment action must be materially adverse as viewed by a reasonable person in the circumstances”); Brown v. Brody, 199 F.3d 446, 457 (D.C.Cir.1999) (“Mere idiosyncra-cies of personal preference are not sufficient to state an injury”); Doe v. Dekalb County Sch. Dist., 145 F.3d 1441, 1448 (11th Cir.1998) (finding “no case, in [the 11th] or any other circuit, in which a court explicitly relied on the subjective preferences of a plaintiff to hold that plaintiff had suffered an adverse employment action”); Smart v. Ball State Univ., 89 F.3d 437, 441 (7th Cir.1996) (“not everything that makes an employee unhappy is an actionable adverse action”); Flaherty v. Gas Research Institute, 31 F.3d 451, 456 (7th Cir.1994) (a “bruised ego” is not enough). As the Seventh Circuit has stated: Obviously a purely lateral transfer, that is, a transfer that does not involve a demotion in form or substance, cannot rise to the level of a materially adverse employment action. A transfer involving no reduction in pay and no more than a minor change in working conditions will not do, either. Otherwise every trivial personnel action that an irritable, chip-on-the-shoulder employee did not like would form the basis of a discrimination suit. The Equal Employment Opportunity Commission, already staggering under an avalanche of filings too heavy for it to cope with, would be crushed, and serious complaints would be lost among the trivial. Williams v. Bristol-Myers Squibb Co., 85 F.3d 270, 274 (7th Cir.1996) (cited with approval in Galabya v. New York City Bd." }, { "docid": "8685081", "title": "", "text": "she suffers no diminution in pay or benefits- — does not suffer an actionable injury unless there are some other materially adverse con sequences affecting the terms, conditions, or privileges of her employment or her future employment opportunities such that a reasonable trier of fact could conclude that the plaintiff has suffered objectively tangible harm. 199 F.3d 446, 457 (D.C.Cir.1999) (emphasis added). The plaintiff bears the burden of showing that the transfer caused materially adverse consequences, which could include a considerable change in benefits, significantly different responsibilities, a lost promotion, or a termination. Id. at 452, 456; Flaherty v. Gas Research Inst., 31 F.3d 451, 457 (7th Cir.1994) (explaining that a “bruised ego” is insufficient when contesting a lateral transfer). Minor changes in opportunities or work-related duties do not constitute actionable injuries unless a decrease in salary or work-hour changes accompanies them. Stewart v. Evans, 275 F.3d 1126, 1134 (D.C.Cir.2002); Forkkio, 306 F.3d at 1130-31. Other than asserting vaguely that the transfer “deprived [him] of the [ability] to maximize the liaison opportunities he had developed with the MPD,” the plaintiff does not specify a harm caused by the transfer. Compl. at 9. Moreover, Mr. Johnson did not receive a diminution in pay or benefits. Mot. for Summ. J. at 20, Exs. X, Y. As the plaintiff has not demonstrated that the reassignment resulted in any “materially adverse consequences,” he has not demonstrated that his reassignment was an adverse action. Brown, 199 F.3d at 457. Consequently, the plaintiff has failed to establish a prima-facie case of retaliation. Jones, 205 F.3d at 433. Thus, the court grants the defendant’s motion for summary judgment on the claim of retaliatory reassignment. Greene, 164 F.3d at 675. E. The Court Denies the Defendant’s Motion for Summary Judgment on the Plaintiffs Claim of Retaliatory Termination Under the three-part McDonnell Douglas analysis', the plaintiff survives summary judgment in a Title VII case by establishing a prima-facie case and demonstrating that the defendant’s proffered legitimate, non-discriminatory reason is pre-textual. McDonnell Douglas, 411 U.S. at 802-05, 93 S.Ct. 1817. In the instant case, the defendant argues that the court" }, { "docid": "8932552", "title": "", "text": "376 in October 1995, and the fifteen day reassignment to the central home care unit in December 1995. Nevertheless, Adeniji presented no evidence that similarly situated employees of other races and national origins were not transferred to other units or reassigned for fifteen days. Nor did he show that he was singled out to be reassigned specifically to unit 376 while employees of other races and national origins remained in MILs or that unit 376 was a less desirable unit to work in. Evidence of a transfer alone is insufficient to make out a case of discrimination. See, e.g., Garber v. New York City Police Dep’t, 159 F.3d 1346 (table), No. 97-9191, 1998 WL 514222 at *4 (2d Cir. June 12, 1998) (“We agree that ‘[ojbviously a pure lateral transfer, that is, a transfer that does not involve a demotion in form or substance, cannot rise to the level of a materially adverse employment action. A transfer involving no reduction in pay and no more than a minor change in working conditions will not do either.’ ... Plaintiff, conceding that his change in position has not threatened his salary or benefits, attempts to rest his assertion that the transfer constituted an adverse employment action only on his unhappiness at being removed from a position he ‘cherished.’ It is not enough. In the circumstances here presented, we are unable to find that plaintiffs transfer constituted a materially adverse change in the terms and conditions of employment.”) (quoting Williams v. Bristol-Myers Squibb Co., 85 F.3d 270, 274 (7th Cir.1996) (Posner, C.J.)); Lambert v. Genesee Hosp., 10 F.3d 46, 58 (2d Cir.1993) (“The district court also properly granted summary judgment for the defendants on plaintiffs’ Title VII ... claims of discrimination in the transfer of employees to the 360 and 385 presses, since the plaintiffs failed to produce any evidence to support an inference of discriminatory motive in the assignment of employees to the various printer positions.”), cert. denied, 511 U.S. 1052, 114 S.Ct. 1612, 128 L.Ed.2d 339 (1994); Little v. New York, 96 Civ. 5132, 1998 WL 306545 at *5-6 (E.D.N.Y. June" }, { "docid": "22335764", "title": "", "text": "of special education classes presents a more difficult question, but we conclude that the record is insufficient to permit the inference that this transfer constituted an adverse employment action. Appellant’s failure to create a genuine issue of material fact becomes clear when his case is compared to Rodriguez v. Board of Educ., 620 F.2d 362 (2d Cir.1980). In Rodriguez, the plaintiff was a junior high school art teacher with twenty years of experience. In obtaining a master’s and doctoral degree in art and art education, she had focused her studies on art programs for junior high school students. Her doctoral dissertation was titled, “A Model Arts Program for the Middle School of Eastchester School District Number 1.” Rodriguez, 620 F.2d at 364. On being transferred to teach elementary school art, she proffered evidence to show that the two jobs were “profoundly different,” so different, in fact, as to render her twenty years of experience “useless.” Id. at 366. Additionally, the plaintiff proffered evidence that showed that the transfer was “in effect, a demotion that would constitute a serious professional setback and stigma to her career.” Id. at 365. Notwithstanding this evidence, the district court granted summary judgment for defendants, finding that there had been no adverse employment action because plaintiff had not lost salary, benefits, seniority, or tenure. Id. ’at 365. Reversing this determination, we held that the transfer was a “radical change in the nature of the work,” which thus constituted “interference with a condition or privilege of employment.” Id. at 366. Rodriguez may be read for the proposition that a transfer is an adverse employment action if it results in a change in responsibilities so significant as to constitute a setback to the plaintiffs career. Accord Williams v. Bristol-Myers Squibb Co., 85 F.3d 270, 274 (7th Cir.1996) (“Obviously a purely lateral transfer, that is, a transfer that does not involve a demotion in form or substance, cannot rise to the level of a materially adverse employment action.”); Harlston v. McDonnell Douglas Corp., 37 F.3d 379, 382 (8th Cir.1994) (to be adverse, change in work assignment must cause “materially" }, { "docid": "19917941", "title": "", "text": "had no substantive input into these matters, and indeed that she was not even required to review the correspondence. Nor is there any evidence that this occupied any substantial amount of her time. On the whole, her loss of job responsibilities, and the episodic and more formalized criticism that she encountered from Con-nor, are similar to the facts detailed by the First Circuit in Marrero. In that case, plaintiffs transfer to another secretarial position came with more work for her (that appeared to be temporary), an increased scrutiny of her performance, a probationary period to ensure that she could handle the new duties, and an instruction not to handle certain confidential mail and phone calls. The First Circuit concluded that the transfer was not a materially adverse employment action, judged by an objective standard, because the changes did not amount in substance to a demotion. 304 F.3d at 25. It was not enough that the plaintiff felt “stigmatized and punished by the transfer.” Id. By the same token, the facts of Billings’s transfer are far removed from those cases where courts have found that the plaintiffs did suffer materially adverse actions as a result of a job transfer or the removal of significant responsibilities. See, e.g., Melendez-Arroyo v. Cutler-Hammer de P.R. Co., 273 F.3d 30 (1st Cir.2001); cf. Simas v. First Citizens’ Federal Credit Union, 170 F.3d 37 (1st Cir.1999). The fact that Billings’s reporting structure also changed does not require a different conclusion. For example, in Flaherty v. Gas Research Institute, the plaintiff argued that the fact that in his new position he report to a former subordinate, whereas he previously reported to a senior vice president, demonstrated that a facially lateral transfer was in substance a demotion. 31 F.3d 451, 457 (7th Cir.1994). The Seventh Circuit disagreed, reasoning that the change was “largely semantic where the employee’s salary, benefits, and level of responsibility would remain unchanged.” Id. Being placed lower on the organizational totem pole may have bruised plaintiffs ego, but it was not enough to establish a materially adverse employment action. Id. Likewise, in MacCormack, the plaintiff" }, { "docid": "7176312", "title": "", "text": "second prong of a prima facie case for discrimination, the only adverse employment allegation that survives the defendant’s statute of limitations challenge is the plaintiffs claim that the defendant demoted him from Vice President and General Manager to what the plaintiff characterizes as a contract proposal writer position, thereby stripping him of his supervisory authority, separating Mm away from his staff, and asking him to report to one of his peer colleagues who had earlier allegedly called him a “black b[i]tch.” PL’s Opp’n at 26; Compl. ¶¶ 16-25. The parties dispute whether the plaintiffs imminent transfer out of the National Capitol Region Vice President and General Manager position to the new position would have been a lateral transfer not amounting to an actionable claim or actionable as a demotion. “An employee suffers an adverse employment action if he experiences materially adverse consequences affecting the terms, conditions, or privilege of employment or future employment opportunities such that a trier of fact could find objectively tangible harm.” Brown v. Brody, 199 F.3d at 457. “A tangible employment action constitutes a significant change in employment status, such as hiring, firing, failing to promote, reassignment with sig nificantly different responsibilities, or a decision causing a significant change in benefits.” Brown v. Brody, 199 F.3d at 456 (comparing Crady v. Liberty Nat. Bank & Trust Co. of Ind., 993 F.2d 132, 136 (7th Cir.1993)) (where another Circuit opined that “[a] materially adverse change might be indicated by a termination of employment, a demotion evidenced by a decrease in wage or salary, a less distinguished title, a material loss of benefits, significantly diminished material responsibilities, or other indices that might be unique to a particular situation”), with Flaherty v. Gas Research Institute, 31 F.3d 451, 456 (7th Cir.1994) (where the same Circuit concluded that a “bruised ego” is not enough); Kocsis v. Multi-Care Management, Inc., 97 F.3d 876, 887 (6th Cir.1996) (where it was concluded that a demotion without change in pay, benefits, duties, or prestige did not amount to adverse action) and Harlston v. McDonnell Douglas Corp., 37 F.3d 379, 382 (8th Cir.1994) (where it" }, { "docid": "22457338", "title": "", "text": "Flaherty’s attempt to show a materially adverse employment action here. The undisputed facts show that Thomas (as well as Burnett) offered Flaherty the fuel cell project manager position. Thomas and Burnett each informed Flaherty that the company considered this a lateral transfer that would not change his salary or benefits. Moreover, Flaherty’s responsibilities would have been comparable to those assigned him as a principal scientist, and would have included primary responsibility for six GRI contracts worth approximately $6 million. The company also maintains, and Flaherty has not refuted, that the fuel cell\" position presented Flaherty with greater growth potential than his program quality position, which GRI was eliminating. Flaherty does not dispute these facts but points out that the fuel cell position would have required that he report to a former subordinate who was merely a manager, whereas he previously had reported to a senior vice president. In addition, he maintains that his own title would have changed from principal scientist to senior project manager. Yet those changes are largely semantic where the employee’s salary, benefits, and level of responsibility would remain unchanged. Although the reporting relationship may have bruised Flaherty’s ego, we indicated in' Spring that a plaintiffs perception that a lateral transfer would be personally humiliating is insufficient, absent other evidence, to establish a materially adverse employment action. 865 F.2d at 885-86. Moreover, Crady holds that the loss of an existing title also would not satisfy this element of the prima facie case. Because a change in title would often go hand in hand with a hew reporting relationship, the two together have little or no cumulative effect. Unable to establish that the fuel cell position was materially adverse, Flaherty contends that GRI’s offer was not genuine because Thomas had no authority to extend it. But again, Flaherty points to no evidence to support his bald assertion. The evidence instead shows that Thomas had absolute authority to make such offers and that he routinely did so in his position with human resources. Although Flaherty may have honestly believed that Thomas lacked the authority to make a genuine offer," }, { "docid": "19917942", "title": "", "text": "removed from those cases where courts have found that the plaintiffs did suffer materially adverse actions as a result of a job transfer or the removal of significant responsibilities. See, e.g., Melendez-Arroyo v. Cutler-Hammer de P.R. Co., 273 F.3d 30 (1st Cir.2001); cf. Simas v. First Citizens’ Federal Credit Union, 170 F.3d 37 (1st Cir.1999). The fact that Billings’s reporting structure also changed does not require a different conclusion. For example, in Flaherty v. Gas Research Institute, the plaintiff argued that the fact that in his new position he report to a former subordinate, whereas he previously reported to a senior vice president, demonstrated that a facially lateral transfer was in substance a demotion. 31 F.3d 451, 457 (7th Cir.1994). The Seventh Circuit disagreed, reasoning that the change was “largely semantic where the employee’s salary, benefits, and level of responsibility would remain unchanged.” Id. Being placed lower on the organizational totem pole may have bruised plaintiffs ego, but it was not enough to establish a materially adverse employment action. Id. Likewise, in MacCormack, the plaintiff claimed that a department reorganization that resulted in a different reporting structure for him was a retaliatory adverse employment action. 423 Mass, at 661, 672 N.E.2d 1. The Supreme Judicial Court ruled that plaintiffs complaints “amounted] to no more than subjective feelings of disappointment and disillusionment” because he did not establish that “he had been disadvantaged in respect to salary, grade, or other objective terms and conditions of employment.” Id. at 663, 672 N.E.2d 1. The other evidence, whether considered individually or as a whole, does not amount to a materially adverse action. In the context of this case, “[t]o be adverse, an action must materially change the conditions of plaintiff’s] employ.” Gu v. Boston Police Dep’t, 312 F.3d 6, 14 (1st Cir. 2002). There is no evidence that her prohibition from the Selectmen’s office or- the ban on social contact with Hazen during office hours have materially affected her. In any event, they are not materially adverse actions under the circumstances. Likewise, the criticism about her job per formance and the reprimand, while certainly" }, { "docid": "12917802", "title": "", "text": "“adverse employhient action,” the position sought or lost has been objectively better in some respect. See, e.g., Lulac Council 4433 & 4436 v. City of Galveston, 979 F.Supp. 514, 518-19 (S.D.Tex.1997) (plaintiffs were transferred to less prestigious positions, which were clearly seen as demotions; other officers typically seek to be transferred out of, rather than into, the department to which plaintiffs were transferred). Courts have also frequently found that lateral transfers do not constitute an “adverse employment action” in discrimination cases brought under the closely related Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. § 621 et seq. See, e.g., Williams v. Bristol-Myers Squibb Co., 85 F.3d 270, 274 (7th Cir.1996) (lateral transfer Insufficient to constitute adverse employment action even though it resulted in drastic reduction in commission income); Flaherty v. Gas Research Inst., 31 F.3d 451, 457 (7th Cir.1994) (“employee’s salary, benefits, and level of responsibility would remain unchanged”; change in title and reporting relationship, and employee’s negative perception of transfer, insufficient to show employment action was adverse); Crady v. Liberty Nat’l Bank & Trust Co., 993 F.2d 132, 136 (7th Cir.1993) (loss of “assistant vice president” title, but no reduction in salary); Spring v. Sheboygan Area Sch. Dist., 865 F.2d 883, 885-86 (7th Cir.1989) (longer commute and negative public perception). The court finds these cases persuasive and concludes that to avoid summary judgment on her failure to transfer claim, Craven must show that the position sought was objectively better than her position at the time, in some non-trivial way. As noted by the Seventh Circuit, such a requirement is a practical necessity: Obviously a purely lateral transfer, that is, a transfer that does not involve a demotion in form or substance, cannot rise to the level of a materially adverse employment action. A transfer involving no reduction in pay and no more than a minor change in working conditions will not do, either. Otherwise'every trivial personnel action that an irritable, chip-on-the-shoulder employee did not like would form the basis of a discrimination suit. The Equal Employment Opportunity Commission, already staggering under an avalanche of filings too heavy for" }, { "docid": "14888845", "title": "", "text": "in one location over another); Bunis v. Runyon, No. 94 Civ.2063, 1997 WL 639241, at *3 (S.D.N.Y. Oct. 16, 1997) (plaintiffs unhappiness about denial of shift change request “not enough to transform that denial into an adverse employment action within the meaning of Title VII”); cf. Nonnenmann v. City of N.Y., 174 F.Supp.2d 121, 132-33 (S.D.N.Y.2001) (refusal, to transfer plaintiff to job location. more convenient for him, insufficient to constitute adverse employment action). In fact, even courts that define “adverse employment actions” broadly follow this logic. See Brown v. Brody, 199 F.3d 446, 457 (D.C.Cir.1999) (plaintiff who was “temporarily reassigned to a position she thought was undesirable, and ... was later not selected for a position she did find desirable” failed to demonstrate adverse employment action; “[mjere idiosyncracies of personal preference are not sufficient”); Horn v. County of San Digeo, 124 F.3d 211 (Table), 1997 WL 579145, at *2 (9th Cir. Sept.18, 1997) (unpublished opinion) (transfer to position plaintiff felt was less prestigious, and which plaintiff found humiliating, amounted only to “a subjective loss of job satisfaction rather than an adverse employment action”); Doe, 145 F.3d at 1448-54 (after noting that it had found “no case, in this or any other circuit, in which a court explicitly relied on the subjective preferences of a plaintiff to hold that that plaintiff had suffered an adverse employment action,” court held that transfer from one teaching position to another, where plaintiff had a “deep, personal commitment” to prior position, insufficient to demonstrate adverse employment action); Flaherty v. Gas Research Inst., 31 F.3d 451, 457 (7th Cir.1994) (plaintiffs “bruised ego” as a result of transfer which plaintiff found “personally humiliating” insufficient to constitute adverse employment action); see also Strother v. S. Cal. Permanente Med. Group, 79 F.3d 859, 869 (9th Cir.1996) (“mere ostracism in the workplace is not enough to show an adverse employment decision”); Welsh v. Derwinski, 14 F.3d 85, 86 (1st Cir.1994) (recognizing that “not every unpleasant matter ... creates a cause of action” under Title VII). Accordingly, because Plaintiffs have predicated their proposed Title VII claims (Proposed Claims 1 and 2)" }, { "docid": "13699454", "title": "", "text": "tasks between different departments, and with that shift in tasks, a shift in the placement of certain employees. Indeed, [plaintiff] was not the only employee transferred from R & D.”), aff'd, 76 Fed.Appx. 366 (2d Cir.2003). It is true, of course, that retaliatory transfers are “not limited to pecuniary emoluments,” and can arise from a “discriminatorily-motivated diminution of duties.” Preda v. Nissho Iwai Am. Corp., 128 F.3d 789, 791 (2d Cir.1997) (citation omitted); see also Harris v. City of New York, No. 03 Civ. 6167(DLC), 2004 WL 2943101, at *4 (S.D.N.Y. Dec. 21, 2004) (“Lesser actions such as ... a diminution in the complexity and prestige of work assignments, and transfers may also be considered adverse.”). But the only evi dence 'that Plaintiffs responsibilities were diminished comes in the form of his own subjective view of his old position, which he was “quite happy” with, as compared to his new position, which was “less desirable” to him. Plaintiffs own subjective dissatisfaction, however, is insufficient. Kessler v. Westchester Cnty. Dep’t of Soc. Servs., 461 F.3d 199, 209 (2d Cir.2006) (“[T]he standard for assessing ... a reassignment is an objective, rather than a subjective, one.”); see also Johnson v. Eastchester Union Free Sch. Dist., 211 F.Supp.2d 514, 518 (S.D.N.Y.2002) (“Plaintiffs mere dissatisfaction with the transfer and his preference for his former position ... are insufficient to constitute a materially adverse employment action.”); Garber v. N.Y.C. Police Dep’t, No. 95 Civ. 2516(JFK), 1997 WL 525396, at *7 (S.D.N.Y. Aug. 22, 1997), aff'd, 159 F.3d 1346 (2d Cir.1998) (“Plaintiffs dissatisfaction with the transfer, standing alone, does not support his claim of an adverse employment action.”). Considering Plaintiffs reassignment in context, the Court finds no evidence from which a reasonable juror could conclude that his new assignments as Director of Special Projects were objectively less complex or prestigious than his responsibilities in the TPT/TLS position. The Court, however, agrees with Plaintiff that a jury could find that his transfer from Director of Special Projects in DNP to his position at DAMP — first as Senior Project Manager, then as Senior Policy Analyst — was materially" } ]

[ { "docid": "5866773", "title": "", "text": "MEMORANDUM OPINION AND ORDER HAIGHT, District Judge: Plaintiffs Holiday Inns, Inc. (“HI”) and Holiday Inns (Lebanon), Inc. (“HI-L”) bring this action against defendant Aetna Insurance Company (“Aetna”) to recover under an insurance policy in force when plaintiffs’ hotel in Beirut, Lebanon was severely damaged by events occurring during a period from October, 1975 to April 9,1976. Aetna contends that the damage resulted from excluded causes. This Court’s opinion of June 20, 1979 held that Aetna had the burden of proving that proposition. After extensive pre-trial discovery, the issue of coverage under the policy was tried to the Court without a jury. The quantum of plaintiffs’ recovery, assuming coverage, was reserved. Thus this decision is limited to whether or not the loss is covered by the policy. I. The Decision of the Second Circuit in Pan American World Airways, Inc. v. Aetna Casualty & Surety Co. For reasons that will become apparent, I begin with an incident occurring over the skies of London on September 6, 1970. On that day members of the Popular Front for the Liberation of Palestine (“PFLP”) hijacked a Pan American jet aircraft. The aircraft ultimately landed at Cairo where, after all passengers were evacuated, the hijackers destroyed it. Pan Am instituted suit because none of the several insurers whose policies covered the aircraft accepted coverage. The litigation resolved itself into a struggle between the “all risk” insurers and the “war risk” insurers, the latter’s policies being intended to cover causes of loss excluded under the all risk policies. Affirming the judgment of this Court, 368 F.Supp. 1098 (S.D.N.Y.1973) (Frankel, D.J.), the Second Circuit held the all risk insurers liable because “none of the all risk exclusions, considered in a light most favorable to the insured, fairly describes the cause of the present loss.” Pan American World Airways, Inc. v. Aetna Casualty & Surety Co., 505 F.2d 989, 1022 (2d Cir.1974) (hereinafter “Pan Am”). The Second Circuit decided Pan Am on October 15, 1974. At that time HI was negotiating, through brokers, with present defendant Aetna the all risk policy forming the subject matter of the case" } ]

[ { "docid": "2582405", "title": "", "text": "the defendant’s contract of insurance.” However, there was absolutely no evidence in Metal Cutting that a fire or explosion ensued from the mechanical breakdown. If a mechanical-breakdown exclusion that did not limit the class of insured ensuing perils had been at issue in Metal Cutting — indeed, if the exclusion had been identical to the exclusion in the instant case — the insured in Metal Cutting should have recovered. III. Lake Charles’s insurance policies covered all risks except those explicitly excluded from coverage, and excluded coverage for mechanical breakdowns only when no “insured peril ensue[d].” Lake Charles might reasonably have assumed that the catastrophic damage to its ship loader was an insured ensuing peril, and absent a clear and intelligible exclusion in the policies, the insurers cannot take shelter in ambiguities. The judgment of the district court therefore is AFFIRMED, and the case is REMANDED for further proceedings consistent with this opinion. . See Lake Charles Harbor & Term. D. v. Imperial Casualty, 670 F.Supp. 189 (W.D.La.1987). . See, e.g., Calcasieu-Marine Nat. Bank v. American Employers’ Ins. Co., 533 F.2d 290, 295 (5th Cir.), cert. denied, 429 U.S. 922, 97 S.Ct. 319, 58 L.Ed.2d 289 (1976); Rodriguez v. Northwestern Nat. Ins. Co., 358 So.2d 1237, 1241 (La.1978). . Calcasieu, 533 F.2d at 295; Borden, Inc. v. Howard Trucking Co., 454 So.2d 1081, 1090 (La.1983); Benton Casing Service, Inc. v. Avemco Ins. Co., 379 So.2d 225, 232 (La.1979). See also Taylor v. Security Industrial Ins. Co., 454 So.2d 1260, 1263 (La.App.1984). . Cf. Halpern v. Lexington Ins. Co., 558 F.Supp. 1280, 1283-84 (E.D.La.1983), affirmed, 715 F.2d 191 (1983). . 651 F.Supp. 417 (M.D.Ga.1987). . Id. at 420-21. See also Jersey Ins. Co. of New York v. Heffron, 242 F.2d 136, 139-40 (4th Cir.1957). . 421 F.2d 319 (6th Cir.1970). . Id. at 321. . Id. . Id. (footnote omitted). . 227 So.2d 790 (La.App.1969). . Id. at 791 (emphasis added). . Id." }, { "docid": "19338736", "title": "", "text": "processing, or manufacture of products; or work being performed upon property and directly attributable thereto; or malfunction; except ensuing loss from a peril not otherwise excluded by this Policy .... Policy at Preamble and 2-3, Ex. A to Parash Aff. To demonstrate its entitlement in the first instance to coverage for a loss under this all-risks policy, Plaintiff need merely “prove the existence of the policy and a fortuitous loss of the covered property.” Allied Van Lines v. Centennial Ins. Co., 685 F.Supp. 344, 345 (S.D.N.Y.1988). A loss is fortuitous unless it “results from an inherent defect, ordinary wear and tear, or intentional misconduct of the insured.” Ingersoll v. M/V Bodena, 829 F.2d 293, 307 (2d Cir.1987). As the Policy is an all risk policy, the burden falls upon the insurer, Defendant, “to prove by a preponderance of the evidence that the loss occurred through a specifically excluded peril.” ABI Asset Corp. v. The Twin City Fire Ins. Co., No. 96 Civ.2067(AGS), 1997 WL 724568, at * 1 (S.D.N.Y., Nov.18, 1997), citing Pan American World Airways v. Aetna Casualty & Surety Co., 505 F.2d 989, 999 (2d Cir.1974). Such “exclusions will be given the interpretation which is most beneficial to the insured.” Pan American, 505 F.2d at 999. Where, as here, its legal position is based on an exclusion provision of the policy, the insurer bears the burden of demonstrating that its interpretation is the only reasonable one. Pan American, 505 F.2d at 999-1000. To sustain its burden under this Policy, Defendant must prove that there was “faulty workmanship, material, construction or design” and that Plaintiffs loss “result[ed] from” the faulty condition. Material questions of fact are present with respect to both factors. Defendant attributes the loss to faulty design decisions in connection with the original construction of the building, arguing that the failure to design for the installation of soft joints and flashing constitutes a design defect within the scope of the exclusion. In support of this contention, Defendant cites PCA’s March 9, 1999 report (authored by Roux) which identified three “primary factors” that caused or contributed to the" }, { "docid": "23282975", "title": "", "text": "(same). The rule of contra proferentem in New York “would seem to have special vigor when applied to a policy ... which is by its own terms denominated a ‘comprehensive general liability policy.’ ” National Screen Service Corp. v. United States Fidelity and Guaranty Co., 364 F.2d 275, 279-80 (2d Cir.1966). In effect, New York law creates a presumption. Like other burden of proof rules, when the state law “supplies the rule of decision,” “the effect of” a presumption or burden of proof “is determined in accordance with State law.” Fed.R.Evid. 302. See, e.g., Dick v. New York Life Ins. Co., 359 U.S. 437, 79 S.Ct. 921, 3 L.Ed.2d 935 (1959) (“Under the Erie rule presumptions (and their effects) and burden of proof are ‘substantive’.”). Numerous courts at all levels of government have reiterated these fundamental principles for construing insurance contracts under New York state law. See, e.g., Ace Wire & Cable Co., Inc. v. Aetna Casualty & Surety Co., 60 N.Y.2d 390, 398, 469 N.Y.S.2d 655, 658, 457 N.E.2d 761, 764 (1983); Ploen v. Aetna Casualty and Surety Co., 138 Misc.2d 704, 525 N.Y.S. 522, 527 (Sup.Ct. Nassau Co.1988); Vargas, 651 F.2d at 839-40; Pan American World Airways, Inc. v. Aetna Casualty & Surety Co., 505 F.2d 989, 999-1000 (2d Cir.1974); Board of Education v. CNA Insurance Co., 647 F.Supp. 1495, 1502 (S.D.N.Y.1986); AHP, 565 F.Supp. at 1492-93; Schering, 544 F.Supp. at 620. When construing an ambiguous provision, the court must remain as faithful as possible to the clear intent of the parties. “No construction of an ambiguous provision is permitted that is inconsistent with the contract’s plain meaning or with the parties’ clear intentions.... To disregard express language in an insurance contract because of a claimed ambiguity ‘would violate the more fundamental rule of construction’ that requires a court to construe the contract as a whole and, whenever possible, give effect to all of its parts.’ ” AHP, 565 F.Supp. at 1492 (citation omitted). Of course, where ambiguity is found, “plain meaning” and “clear intentions” will not usually be in abundant supply. The court must do its best" }, { "docid": "19709668", "title": "", "text": "granted as to all other claims. Submit order accordingly, returnable within five days from date, and upon at least three days’ notice of settlement. So ordered. . Plaintiffs originally claimed that the retention of the $53,789.68 constituted conversion of plaintiffs’ funds and a breach of contract. By consent order, these claims have been settled. . N.Y.U.C.C. § 2-201 (McKinney’s 1964). . See Doc. No. 02475-02480 (Amax Controller’s Manual). . See, e.g., Plaintiffs’ Exhbt. 84 (discretionary authority of Amax personnel to invest company funds). . Schering Corp. v. Home Ins. Co., 712 F.2d 4, 9 (2d Cir.1983). . Beacon Enters. Inc. v. Menzies, 715 F.2d 757, 762 (2d Cir.1983) (quoting Heyman v. Commerce & Indus. Ins. Co., 524 F.2d 1317, 1320 (2d Cir. 1975)). . Schering Corp. v. Home Ins. Co., 712 F.2d 4, 9 (2d Cir.1983). . Id. (quoting Heyman v. Commerce & Indus. Ins. Co., 524 F.2d 1317, 1320 (2d Cir.1975)). . The parties do not dispute that in this diversity action New York’s substantive law applies. . Plaintiffs’ Exhbt. 38. . \"[M]ost authorities consider 'implied authority’ to be merely a sub-group of actual authority.” Lind v. Schenley, 278 F.2d 79, 84 (3rd Cir.1960) (citing Mechem, Agency §§ 51-60 (4th ed. 1952)); see also Masuda v. Kawasaki Dockyard Co., 328 F.2d 662, 664-65 (2d Cir.1964). . Lind v. Schenley Indus., Inc., 278 F.2d 79, 85 (3rd Cir.1960), quoted in Masuda v. Kawasaki Dockyard Co., 328 F.2d 662, 664-65 (2d Cir. 1964). . Masuda v. Kawasaki Dockyard Co., 328 F.2d 662, 665 (2d Cir.1964); see General Overseas Films, Ltd. v. Robin Inti, Inc., 542 F.Supp. 684, 688-89 (S.D.N.Y.1982). . Lind v. Schenley Indus., Inc., 278 F.2d 79, 85 (3rd Cir.1960). . See, e.g., Plaintiffs’ Exhbt. 88 (Ayres' job description). . See Rosefielde Deposition at 65-69. . Plaintiffs’ Exhbt. 84. . Wen Kroy Realty Co. v. Public Nat’l Bank & Trust Co., 260 N.Y. 84, 90, 183 N.E. 73, 74 (1932) (citation omitted), quoted in Masuda v. Kawasaki Dockyard Co., 328 F.2d 662, 665 (2d Cir. 1964). . Hedeman v. Fairbanks, Morse & Co., 286 N.Y. 240, 248-49, 36 N.E.2d 129," }, { "docid": "15605758", "title": "", "text": "legal construction. Specifically, plaintiff maintains the words “marriage” and “ward,” as used by the insurance policy to define “family member,” are ambiguous and, therefore, should be construed in the manner most favorable to her. A district court appropriately grants a motion for summary judgment only when the moving party fails to show a genuine issue of any material fact and the moving party is entitled to judgment as a matter of law. Celotex Corp. v. Catrett, _ U.S. _, 106 S.Ct. 2548, 2552-53, 91 L.Ed.2d 265 (1986); Vreeken v. Davis, 718 F.2d 343, 347 (10th Cir.1983); Fed.R.Civ.P. 56(c). Where different ultimate inferences may properly be drawn, the case is not one for summary judgment. United States v. Diebold, 369 U.S. 654, 655, 82 S.Ct. 993 [994], 8 L.Ed.2d 176; American Fidelity & Casualty Co. v. London & Edinburgh Ins. Co., 354 F.2d 214, 216 (4th Cir.). The court must examine the summary judgment papers in the light most favorable to the party opposing the motion. Frey v. Frankel, 361 F.2d 437, 442 (10th Cir.). All the ambiguities and disagreements must be resolved in favor of the party against whom summary judgment is sought. Heyman v. Commerce And Industry Insurance Company, 524 F.2d 1317, 1321 (2d Cir.). Webb v. Allstate Life Ins. Co., 536 F.2d 336, 339-40 (10th Cir.1976). “Generally [the] terms of an insurance policy must be considered not in a technical but in a popular sense, and they should be construed according to their plain, ordinary and accepted use in common speech, unless it affirmatively appears that a different meaning was intended.” National Aviation Underwriters, Inc. v. Altus Flying Service, Inc., 555 F.2d 778, 782 (10th Cir.1977); see Webb, 536 F.2d at 339. Where the insurance policy contains equivocal or ambiguous language, a court should interpret the policy favorably to the insured. Young v. Fidelity Union Life Ins. Co., 597 F.2d 705, 707 (10th Cir.1979); Hercules Casualty Ins. Co. v. Preferred Risk Ins. Co., 337 F.2d 1, 4 (10th Cir.1964). By relying on the Oklahoma statutory definition of “ward,” see Okla.Stat. tit. 30, § 2 (1981), the district court" }, { "docid": "22845683", "title": "", "text": "have been covered. Clause 17(a) insures against “all risks of physical loss or damage from any external cause.” All risk coverage covers all losses which are fortuitious no matter what caused the loss, including the insured's negligence, unless the insured expressly advises otherwise. Goodman v. Fireman’s Fund Ins. Co., 600 F.2d 1040, 1042 (4th Cir.1979). A loss is fortuitous unless it results from an inherent defect, ordinary wear and tear, or intentional misconduct of the insured. Id. An insured satisfies its burden of proving that its loss resulted from an insured peril if the cargo was damaged while the policy was in force and the loss was fortuitous. Atlantic Lines Ltd. v. American Motorists Ins. Co., 547 F.2d 11, 12 (2d Cir.1976); accord Morrison Grain Co. v. Utica Mut. Ins. Co., 632 F.2d 424, 430-31 (5th Cir. 1980). The circumstances surrounding the placement of the Ingersoll cargo on deck and the resultant loss can fairly be characterized as fortuitous. It was the carrier that breached the contract of carriage by placing the cargo on deck. Ingersoll certainly did not engage in any intentional misconduct to cause the misplacement of its cargo. Moreover, even if the carrier was negligent in placing the cargo outside the area of the ship’s hold, all risk coverage would still apply. Construing Ingersoll’s policy as providing full coverage for shipments stowed on deck without the shipper’s consent is consistent with the purpose for which the policy was issued. All risk open cargo policies, such as the one issued to Ingersoll, provide broad coverage for shippers. See, e.g., Greene v. Cheetham, 293 F.2d 933 (2d Cir. 1961); Groban v. S.S. Pegu, 331 F.Supp. 883 (S.D.N.Y.1971), affd sub nom. Groban v. American Casualty Ins. Co., 456 F.2d 685 (2d Cir.1972). A shipper not located near a port has no practical control over how a steamship line may ultimately carry and protect its cargo. Even if it issues clear instructions as to stowage directly to the carrier, it has no guarantee that the carrier will comply. A carrier may negligently or inadvertently place cargo intended to be stowed below" }, { "docid": "2372057", "title": "", "text": "other jurisdictions. Prather v. American Motorists Ins. Co., 2 N.J. 496, 67 A.2d 135 (1949). See Pan American World Airways, Inc. v. Aetna Cas. & Sur. Co., 505 F.2d 989, 1001 & n. 10 (2d Cir.1974); Close-Smith v. Conley, 230 F.Supp. 411 (D.Or.1964); 13 Appleman § 7389 at 192-96 (1976 & 1986 Supp.); 2 Couch § 15:52 at 291 (1984 & 1985 Supp.); 11 Couch § 44.261 at 405-06 ,& n. 11 (1982 & 1985 Supp.) (“[TJhere is no coverage with respect to a type of claim which falls directly within a particular coverage clause which was not purchased by the insured.”). Here, there is no dispute that the premium amount was substantially less than it would have been had recall and recall-related expenses been included. We again return to one rock hard fact: Johnson & Johnson knew it could purchase recall insurance and elected not to do so. It is, of course, possible in construing a policy for a court to consider that alternative language explicitly placing the asserted coverage clearly outside the policy could have been used, such as the language of the Insurance Services Office (“ISO”) policy to which plaintiff points which clearly excepts first party recall claims. Nevertheless, it is quite clear under New Jersey law that that fact is merely an aid to construction, and not conclusive. Mazzilli v. Accident & Cas. Ins. Co., 35 N.J. 1, 7, 170 A.2d 800, 803 (1961); Ellmex Const. Co. v. Republic Ins. Co., 202 N.J.Super. 195, 204, 494 A.2d 339, 344 (App.Div.1985); Aetna Ins. Co. v. Weiss, 174 N.J.Super. 292, 416 A.2d 426 (App.Div.1980); American Legion Tri-County Mem. Hosp. v. St. Paul Fire & Marine Ins. Co., 106 N.J.Super. 393, 397, 256 A.2d 57, 59 (App.Div.1969); American Policyholders Ins. Co. v. Portale, 88 N.J.Super. 429, 439-40, 212 A.2d 668, 674 (App.Div.1965); Kook v. American Sur. Co., 88 N.J.Super. 43, 51-52, 210 A.2d 633, 638 (App.Div.1965). Moreover, if an alternative type of coverage is available and known to the insured, as here first-party recall insurance was both available and known, such coverage will not be imputed to the policy" }, { "docid": "13774992", "title": "", "text": "Daburlos v. Commercial Ins. Co., 521 F.2d 18, 24 (3d Cir.1975); Williams v. Nationwide Ins. Co., 571 F.Supp. 414, 416-17 (M.D.Pa.1983); Nationwide Mut. Ins. Co. v. United States Fid. & Guar. Co., 529 F.Supp. 194, 200-03 (E.D.Pa.1981); Cornwell v. State Farm Fire & Cas. Co., 527 F.Supp. 310, 312-13 (E.D.Pa.1981); and Mattes v. National Fidelity Life Ins. Co., 506 F.Supp. 955, 958-61 (M.D.Pa.1980), aff'd, 659 F.2d 1069 (3d Cir.1981), cert. denied, 454 U.S. 966, 102 S.Ct. 509, 70 L.Ed.2d 383 (1981). The law of Alabama appears consistent with that of Pennsylvania regarding the principles that “any ambiguities in the policy are to be resolved in favor of the insured” and that exceptions to coverage must be interpreted as narrowly as possible in order to provide maximum coverage for the insured and “construed most strongly against the company drafting and issuing the policy.” Employers Insurance Co. of Alabama, Inc. v. Jeff Gin Co., 378 So.2d 693, 695 (Ala.1979). See also, e.g., Burton v. State Farm Fire & Casualty Co., 533 F.2d 177, 178 (5th Cir.1976); Cotton States Insurance Co. of Atlanta v. Diamond Housing Mobile Homes, 430 F.Supp. 503, 506 (N.D.Ala.1977); and Bituminous Casualty Corp. v. Harris, 372 So.2d 342, 344 (Ala.App.1979). Indeed, these principles are “well established” throughout all American jurisdictions. 43 AM.JUR.2d 368 (1969). See Kleckner v. Mutual Life Insurance Co. of New York, 822 F.2d 1316, 1318 (3d Cir.1987) (applying New Jersey law). Therefore, Burnhope must clear at least two significant hurdles to succeed in any aspect of his Motion: he must show that he is entitled to prevail even if (1) All doubts regarding pertinent facts and inferences therefrom are resolved against him; and (2) All ambiguities in the insurance contracts are likewise resolved against him. These are difficult hurdles to clear. It is necessary that we keep these principles foremost in our mind in considering the three difficult legal issues related to fidelity policies raised by the Defendant which we identified at page 442 supra. E. ESTABLISHMENT OF POTENTIAL LOSSES TO THE DEBTOR-INSURED AS TO EACH OF THE CLAIMS IN ISSUE, EVEN THOUGH THE LOSSES WERE" }, { "docid": "22076434", "title": "", "text": "in insurance contracts to be construed against the insurer. 544 F.Supp. at 620. The trial court erroneously invoked this doctrine because contra preferentem is used only as a matter of last resort, after all aids to construction have been employed but have failed to resolve the ambiguities in the written instrument. See, e.g., Union Ins. Soc’y of Canton, Ltd v. William Gluckin & Co., 353 F.2d 946, 951 (2d Cir.1965). This is clearly the law in New York. Hartford Accident & Indem. Co. v. Wesolowski, 33 N.Y.2d 169, 172, 350 N.Y.S.2d 895, 305 N.E.2d 907 (1973). To conclude otherwise would require every ambiguously drafted policy to be automatically construed against the insurer, a proposition not even Schering supports. Moreover, there is an unresolved question whether the rule of contra preferentem is even applicable in a situation involving a large, sophisticated, counselled entity such as Schering, since a number of courts have recognized that in cases involving bargained-for contracts, negotiated by sophisticated parties, the underlying adhesion contract rationale for the doctrine is inapposite. See, e.g., Eagle Leasing Corp. v. Hartford Fire Ins. Co., 540F.2d 1257, 1261 (5th Cir.1976), cert. denied, 431 U.S. 967, 97 S.Ct. 2926, 53 L.Ed.2d 1063 (1977). This court has not decided the issue and, contrary to appellee’s position, Pan American World Airways, Inc. v. Aetna Casualty & Surety Co., 505 F.2d 989 (2d Cir.1974) does not require invocation of contra preferentem. In that case we found the insured had no bargaining power notwithstanding its size and experience, because no company offered “all risk” insurance on terms other than those Pan Am was forced to accept. Id. at 1003. The product liability market appears to be more competitive, and insured have at least some measure of bargaining power. In any event, the trial court should not have resorted to contra preferentem for the reasons we have set forth." }, { "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": "9379584", "title": "", "text": "Paul Fire & Marine Ins. Co., 472 F.3d 33, 48 (2d Cir.2006) (interpreting the word “cause” in an insurance contract governed by New York law and stating that “[i]n a case where a covered and [non-covered] peril combine to cause a covered loss, courts typically apply the efficient proximate cause rule — meaning, that the insured is entitled to coverage only if the covered peril is the predominant cause of the loss or damage” (internal quotation marks omitted)); Siegel v. Chubb Corp., 33 A.D.3d 565, 825 N.Y.S.2d 441, 442 (1st Dep’t 2006). We should expect that if parties wish to override the settled principle that concurrent operation of a non-listed peril will not necessarily defeat coverage, they will be reasonably clear about it. See Pan Am. World Airways, Inc. v. Aetna Cas. & Sur. Co., 505 F.2d 989, 1007 (2d Cir.1974) (recognizing that the efficient proximate cause rule is “adumbrated by the maxim contra proferentem: if the insurer desires to have more remote causes determine the scope of exclusion, he may draft language to effectuate that desire”). These parties were not. Second, Lexington knows how to make itself plain on these matters. A separate provision in the policy (of the type commonly called an “anti-concurrent clause,” see, e.g., Coney Island Auto Parts Unlimited, Inc. v. Charter Oak Fire Ins. Co., 619 Fed.Appx. 28, 29 (2d Cir.2015) (summary order)), excludes from coverage certain perils and provides expressly that the exclusions apply “regardless of any other cause or event contributing concurrently ... to the loss.” App. 1284. Lexington could have included similar language in Additional Coverage 8: for instance, “We insure for direct physical loss to covered property involving collapse — only if the collapse is caused exclusively by one of the following perils. You are not covered if any other cause or event contributes concurrently to the loss.” Why use so equivocal a phrase to achieve such an important purpose if a term so admirably serving that purpose was close at hand? Finally (and most fundamentally), insurance policies are to be construed, and ambiguity assessed, in light of the reasonable expectations" }, { "docid": "16550542", "title": "", "text": "damage to the urea occurred while the policy was in force. We find these contentions unpersuasive. (i) Insurer argues first that Morrison should have had the burden of bringing itself within the express coverage of the insurance policy by showing that the loss of or damage to the urea was occasioned by an external cause. It is true that the burden of proof generally is upon the insured to show that a loss arose from a covered peril. S. Felicone & Sons Fish Co. v. Citizens Casualty Co. of N.Y., 430 F.2d 136 (5th Cir. 1970), cert. denied, 401 U.S. 939, 91 S.Ct. 936, 28 L.Ed.2d 219 (1971); Northwestern Mutual Life Ins. Co. v. Linard, 498 F.2d 556 (2nd Cir. 1974). However, as a reviewing Court we must view each contract in the light of the setting of the parties and their reasonable expectations as to risks and protection against them, and an insurance policy in such a way as to effectuate its purpose. The District Court correctly construed the policy here as an “all risks” policy. See, Atlantic Lines Limited v. American Motorists Insurance Company, 547 F.2d 11 (2nd Cir. 1976). As has been recognized in other circuits, “it would appear that all risks insurance arose for the very purpose of protecting the insured in those cases where difficulties of logical explanation or some mystery surround the [loss of or damage to] property.” It would seem to be inconsistent with the broad protective purposes of “all risks” insurance to impose on the insured, as Insurer would have us do, the burdenjrf proving the precise cause of the loss or damage. It is not surprising, therefore, that courts which have considered claims under insurance poR icies with essentially the same insuring language as the policy before us have consistently refused to require the insured to demonstrate that the loss or damage was occasioned by an external cause. We similarly refuse to impose such a burden in this case. (ii) Insurer mounts an additional attack on the Court’s allocation of the burden of proof charging that the Court failed to impose" }, { "docid": "6672969", "title": "", "text": "allowed for all fortuitous losses not resulting from misconduct or fraud, unless the policy contains a specific provision expressly excluding the loss from coverage. C.H. Leavell & Co. v. Fireman’s Fund Ins. Co., 372 F.2d 784, 787 (9th Cir.1967). The burden is on the insurer issuing an “all risk” policy to show that the loss comes within an exclusion specified in the policy, Chase Rand Corp. v. Central Ins. Co. of Baltimore, 152 F.2d 963, 964 (2d Cir.1945); thus, Charter Oak has the burden of establishing that the “earth movement” exclusion applies, under the facts of this case. “The insurer’s interpretation, especially when it concerns an exclusion to the overall coverage, must be clearly expressed in the policy ... The rules of contract construction are especially narrow when applied to the exclusionary provisions of insurance policies.” Rummel v. Lexington Ins. Co., 123 N.M. 752, 759, 764, 945 P.2d 970, 977, 982 (1997). “The experienced all risk insurers should have expected the exclusions drafted by them to be construed narrowly against them and should have calculated their premiums accordingly.” Pan Am. World Airways, Inc. v. Aetna Cas. & Sur. Co., 505 F.2d 989, 1004 (2d Cir.1974). The construction of an insurance policy is a matter of law which can be decided on summary judgment. Adams-Arapahoe Joint School Dist. v. Continental Ins. Co., 891 F.2d 772, 774 (10th Cir.1989); Quaker State Minit-Lube, Inc. v. Fireman’s Fund Ins. Co., 868 F.Supp. 1278, 1287 (D.Utah 1994), aff'd, 52 F.3d 1522 (10th Cir.1995). In construing an insurance policy, the Court in a diversity case looks to the law of the forum state and, if the state Supreme Court has not addressed the issue, the Court’s duty is to determine, as best it can, how the issue would be resolved by the state Supreme Court. Quaker State Minit-Lube, supra, 52 F.3d at 1527. Charter Oak argues that, since the structural damage occurred as a result of soil moving, this unambiguously brings the occurrence within the earth movement exclusion. However, the New Mexico Supreme Court has construed “earth movement” to cover only naturally-occurring phenomena such as earthquake" }, { "docid": "15605759", "title": "", "text": "the ambiguities and disagreements must be resolved in favor of the party against whom summary judgment is sought. Heyman v. Commerce And Industry Insurance Company, 524 F.2d 1317, 1321 (2d Cir.). Webb v. Allstate Life Ins. Co., 536 F.2d 336, 339-40 (10th Cir.1976). “Generally [the] terms of an insurance policy must be considered not in a technical but in a popular sense, and they should be construed according to their plain, ordinary and accepted use in common speech, unless it affirmatively appears that a different meaning was intended.” National Aviation Underwriters, Inc. v. Altus Flying Service, Inc., 555 F.2d 778, 782 (10th Cir.1977); see Webb, 536 F.2d at 339. Where the insurance policy contains equivocal or ambiguous language, a court should interpret the policy favorably to the insured. Young v. Fidelity Union Life Ins. Co., 597 F.2d 705, 707 (10th Cir.1979); Hercules Casualty Ins. Co. v. Preferred Risk Ins. Co., 337 F.2d 1, 4 (10th Cir.1964). By relying on the Oklahoma statutory definition of “ward,” see Okla.Stat. tit. 30, § 2 (1981), the district court construed “ward” in technical, legal terms as a person over whom a guardian is appointed by a court. Although one of the definitions of “ward” in Webster’s Third New International Dictionary 2575 (3d ed. 1981) is in accordance with this definition, “ward” is also there defined as “a person ... under the protection or tutelage of a person.” Id.; see also The Random House College Dictionary 1482 (revised ed. 1980). The insurance policy does not define “ward” or expressly limit coverage to those situations where “ward” status is conferred by legal appointment or placement. Under these circumstances, “[t]he court may look to dictionary definitions of the ambiguous term, and if there is a range of reasonable meanings the court must apply the meaning which provides the most coverage for the insured.” Poland v. Martin, 761 F.2d 546, 548 (9th Cir.1985). Consequently, we conclude that “ward” is ambiguous and should not be restricted to a technical, legal definition including only a person on behalf of whom a legal guardian has been appointed by a court of" }, { "docid": "19709667", "title": "", "text": "at risk. However, the fact that plaintiffs believed they had a contract with Amax for the 108 and were acting to protect their “investment” in the plane does not justify a finding that, if in fact no contract was in effect between them, Amax was enriched, and unjustly so, by the value of the monitoring services. In view of plaintiffs’ position that they had a contract for resale to French, it was in their own interests to take whatever steps were available to them to assure that the 108 was in operation by the end of the year, for if it were not plaintiffs’ price arrangement would collapse. Plaintiffs’ services were entirely voluntary and were designed to and had the effect of protecting their own interests, and even if they incidentally benefitted Amax, they do not give rise to an equitable claim of unjust enrichment. The claims for unjust enrichment must therefore be dismissed. In sum, defendant’s motion for summary judgment is denied as to plaintiffs’ claim for breach of a sales contract; it is granted as to all other claims. Submit order accordingly, returnable within five days from date, and upon at least three days’ notice of settlement. So ordered. . Plaintiffs originally claimed that the retention of the $53,789.68 constituted conversion of plaintiffs’ funds and a breach of contract. By consent order, these claims have been settled. . N.Y.U.C.C. § 2-201 (McKinney’s 1964). . See Doc. No. 02475-02480 (Amax Controller’s Manual). . See, e.g., Plaintiffs’ Exhbt. 84 (discretionary authority of Amax personnel to invest company funds). . Schering Corp. v. Home Ins. Co., 712 F.2d 4, 9 (2d Cir.1983). . Beacon Enters. Inc. v. Menzies, 715 F.2d 757, 762 (2d Cir.1983) (quoting Heyman v. Commerce & Indus. Ins. Co., 524 F.2d 1317, 1320 (2d Cir. 1975)). . Schering Corp. v. Home Ins. Co., 712 F.2d 4, 9 (2d Cir.1983). . Id. (quoting Heyman v. Commerce & Indus. Ins. Co., 524 F.2d 1317, 1320 (2d Cir.1975)). . The parties do not dispute that in this diversity action New York’s substantive law applies. . Plaintiffs’ Exhbt. 38. . \"[M]ost authorities" }, { "docid": "13405837", "title": "", "text": "8 L.Ed.2d 176 (1962) (per curiam)). ■ “The Court must adopt the construction of [an] insurance contract which most nearly corresponds with the intention of the parties as ascertained from the words employed by them in their plain, ordinary and usual meaning.” River Servs. Co. v. Hartford Accident & Indem. Co., 449 F.Supp. 622, 626 (N.D. Ohio 1977). Ohio courts called upon to interpret insurance policies must construe the provisions of those policies strictly against the insurer only when the policy provisions are ambiguous. Sutton v. Spencer, 56 Ohio App.3d 147, 565 N.E.2d 854, 856 (1989). Moreover, any reasonable interpretation of an insurance policy that results in coverage for the insured must be adopted. River Servs., 449 F.Supp. at 626. Unlike a named peril insurance policy, an all-risk insurance policy extends coverage “to risks that are not ordinarily included in other types of insurance coverage.” Essex House v. St. Paul Fire & Marine Ins. Co., 404 F.Supp. 978, 987 (S.D. Ohio.1975). However, not all property risks are covered by such a policy. Essex House, 404 F.Supp. at 987; see also Aetna Casualty & Sur. Co. v. Yates, 344 F.2d 939, 940 (5th Cir.1965) (calling the term “all-risk” a misnomer). An all-risk policy does not cover risks that are either specifically excluded from coverage by a provision in the policy or losses that occur as a result of the insured’s fraud or other misconduct. Essex House, 404 F.Supp. at 993; C.H. Leavell & Co. v. Fireman’s Fund Ins. Co., 372 F.2d 784, 787 (9th Cir.1967). In addition, an all-risk policy, like any other insurance policy, insures only against fortuitous losses. Essex House, 404 F.Supp. at 987; Compagnie Des Bauxites De Guinee v. Insurance Co. of N. Am., 554 F.Supp. 1075, 1080 (W.D.Pa.1983), rev’d on different grounds, 724 F.2d 369 (3d Cir.1983). In order to withstand defendant’s motion for summary judgment, plaintiff was' required to present evidence (1) that it sustained a physical loss and (2) that the loss was the result of a fortuitous event. Harbor House Condominium Ass’n v. Massachusetts Bay Ins. Co., 703 F.Supp. 1313, 1317 (N.D.Ill.1988), aff'd, 915" }, { "docid": "16550581", "title": "", "text": "to property. . This Circuit has already held that in a claim under an “all risks” policy, the insured is not required to negative each of the policy exceptions in order to recover: [4] There was a loss, and it was established by positive evidence. The assured did not''haj£g to go further to demonstrate that such loss was not caused by one of the excepted conditions. To escape the broad undertaking -of this comprehensive cover, the insurer had the burden of establishing that. Jewelers Mutual Insurance Co. v. Balogh, 272 F.2d 889, 892 (5th Cir. 1959). . See, Atlantic Lines, 547 F.2d at 12; Redna Marine Corp. v. Poland, 46 F.R.D. 81, 1969 AMC 1809 (S.D.N.Y. 1969). See also, Northwestern Mutual, 498 F.2d at 561, n.5: this was not a so-called ‘all risks’ policy wherein all losses attributable to external causes are covered, absent specific exclusion thereof, [cites omitted] In an ‘all risks’ policy the burden is plainly on the underwriter to show that an exception to coverage applies. But see, Monarch Industrial Corp. v. American Motorist Insurance Co., 1967 AMC 2488 (S.D. N.Y. 1967). . See, Texas Eastern Transmission v. Marine-Office, Etc., 579 F.2d 561, 564 (10th Cir. 1978): The general rule ... is that the burden is upon the insured to prove that a loss occurred and that it was due to some fortuitous event or circumstance, (emphasis added) See also, Atlantic Lines, 547 F.2d at 12; Northwestern Mutual, 498 F.2d at 561, n.5; British & Foreign Marine Inc. Co. v. Gaunt [1921] A.C. 41, 46-47; Redna, 46 F.R.D. at 87. . Quoted with approval in Texas Eastern Transmission, 579 F.2d at 564. . Texas Eastern Transmission, 579 F.2d at 564; Atlantic Lines, 547 F.2d at 12. . Redna, 46 F.R.D. at 87. See also, Federal Ins. Co. v. Tamiami Trail Tours, Inc., 117 F.2d 794, 796 (5th Cir. 1941); C. H. Leavell & Co. v. Fireman’s Fund Ins. Co., 372 F.2d 784, 789 (9th Cir. 1967). . Insurer has abandoned its claim that Kearney misrepresented the quality of the bags. . See discussion in part (i) supra." }, { "docid": "16550579", "title": "", "text": "Cir., 1962, 300 F.2d 631, 1962 A.M.C. 1593, cert. denied, 1962, 370 U.S. 925, 82 S.Ct. 1562, 8 L.Ed.2d 505. . See, Walker & Sons, Inc. v. Valentine, 431 F.2d 1235, 1239, 1970 AMC 2261 (5th Cir. 1970); Gulfstream Cargo, Ltd. v. Reliance Insurance Company, 409 F.2d 974, 980-81, 1969 AMC 781 (5th Cir. 1969). . See, Walter v. Marine Office of America, 537 F.2d 89, 94-95, 1977 AMC 1471 (5th Cir. 1976); Irwin, 455 F.2d at 829-30. . As we launch into an analysis of the complex legal issues and fact questions involved in this case, we are reminded of the words of Justice Bradley written over a century ago but still true today: “[Tjhe contract of marine insurance is an exotic in the common law.” Insurance Co. v. Dunham, 78 U.S. (11 Wall.) 1, 32, 20 L.Ed. 90 (1870). . Morrison Grain Co., Inc. v. Utica Mut. Ins. Co., 446 F.Supp. 415, 420,-AMC-(M.D. Fla. 1977), quoting Welded Tube Co. v. Hartford Fire Insurance Co., 1973 AMC 555 (E.D.Pa. 1972). . 446 F.Supp. at 422. . See, Walter, 537 F.2d at 95; Motor Vehicle Cas. Co. v. Atlantic Nat’l. Ins. Co., 374 F.2d 601 (5th Cir. 1967); Am. Agricultural Chem. Co. v. Tampa Armature Works, Inc. & Am. Agricultural Chem. Co. v. Nye, 315 F.2d 856 (5th Cir. 1963) (Brown, C. J., concurring); Indem. Ins. Co. of N. Am. v. DuPont, 292 F.2d 569 (5th Cir. 1961); U. S. Indus., Inc. v. Camco, Inc., 277 F.2d 292 (5th Cir. 1960); Fidelity-Phenix Fire Ins. Co. v. Farm Air. Serv., Inc., 255 F.2d 658 (5th Cir. 1958); Am. Fidelity & Cas. Co. v. St. Paul-Mercury Indem. Co., 248 F.2d 509 (5th Cir. 1957). . See, Walter, 537 F.2d at 95; 13 Appleman, Insurance Law and Practice (1943) at § 7386. . See, Atlantic Lines, 547 F.2d at 13; Betty v. Liverpool and London and Globe Insurance Co., 310 F.2d 308, 311 (4th Cir. 1962). Although these cases concerned the disappearance of property, we believe that their observation concerning the purpose of “all risks” insurance is equally applicable to cases involving damage" }, { "docid": "20339576", "title": "", "text": "(2d Cir.1970). . Quinn v. Syracuse Model Neighborhood Corp., 613 F.2d 438, 445 (2d Cir. 1980). . Sobering Corp. v. Home Ins. Co., 712 F.2d 4, 9 (2d Cir. 1983) (quoting Heyman, 524 F.2d at 1320); see also Katz v. Goodyear Tire and Rubber Co., 737 F.2d 238 at 244 (2d Cir. 1984). . Schering Corp., 712 F.2d at 9; Quinn, 613 F.2d at 444; Heyman, 524 F.2d at 1320 (citing Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 1608, 26 L.Ed.2d 142 (1970)). . Sobering Corp., 712 F.2d at 9; Heyman, 524 F.2d at 1320. . SEC v. Research Automation Corp., 585 F.2d 31, 33 (2d Cir.1978); see also Wyler v. United States, 725 F.2d 156, 160 (2d Cir.1983); Sobering Corp., 712 F.2d at 9. . Quinn, 613 F.2d at 445. . Sobering Corp. v. Home Ins. Co., Ill F.2d 4, 9 (2d Cir.1983); Home Ins. Co. v. Aetna Casualty and Sur. Co., 528 F.2d 1388, 1390 (2d Cir.1976); Heyman v. Commerce and Indus. Ins. Co., 524 F.2d 1317, 1320 (2d Cir.1975). . American Home Prod. Corp. v. Liberty Mut. Ins. Co., 565 F.Supp. 1485, 1492 (S.D.N.Y.1983); Coppotelli v. Insurance Co. of North America, 484 F.Supp. 1327, 1329 (E.D.N.Y.), aff'd in part, rev’d in part on other grounds, 631 F.2d 146 (2d Cir.1980). . Tokio Marine and Fire Ins. Co. v. McDonnell Douglas Corp., 617 F.2d 936, 940 (2d Cir.1980). . Sobering Corp., Ill F.2d at 9; Heyman, 524 F.2d at 1320; Emons Indus., Inc. v. Liberty Mut. Fire Ins. Co., 567 F.Supp. 335, 338 (S.D.N.Y. 1983); Mallad Constr. Corp. v. County Fed. Sav. & Loan, 32 N.Y.2d 285, 290, 344 N.Y.S.2d .925, 930, 298 N.E.2d 96, 99 (1973). . The American College Dictionary 394 (1970); see also Webster’s New International Dictionary of the English Language 839 (2d ed. 1950) (\"Employee: One employed by another; one who works for wages or salary in the service of an employer.’’) . In interpreting the definition of employee in a similar fidelity bond, the Sixth Circuit has stated that the principal test of an employer and employee" }, { "docid": "16550580", "title": "", "text": "422. . See, Walter, 537 F.2d at 95; Motor Vehicle Cas. Co. v. Atlantic Nat’l. Ins. Co., 374 F.2d 601 (5th Cir. 1967); Am. Agricultural Chem. Co. v. Tampa Armature Works, Inc. & Am. Agricultural Chem. Co. v. Nye, 315 F.2d 856 (5th Cir. 1963) (Brown, C. J., concurring); Indem. Ins. Co. of N. Am. v. DuPont, 292 F.2d 569 (5th Cir. 1961); U. S. Indus., Inc. v. Camco, Inc., 277 F.2d 292 (5th Cir. 1960); Fidelity-Phenix Fire Ins. Co. v. Farm Air. Serv., Inc., 255 F.2d 658 (5th Cir. 1958); Am. Fidelity & Cas. Co. v. St. Paul-Mercury Indem. Co., 248 F.2d 509 (5th Cir. 1957). . See, Walter, 537 F.2d at 95; 13 Appleman, Insurance Law and Practice (1943) at § 7386. . See, Atlantic Lines, 547 F.2d at 13; Betty v. Liverpool and London and Globe Insurance Co., 310 F.2d 308, 311 (4th Cir. 1962). Although these cases concerned the disappearance of property, we believe that their observation concerning the purpose of “all risks” insurance is equally applicable to cases involving damage to property. . This Circuit has already held that in a claim under an “all risks” policy, the insured is not required to negative each of the policy exceptions in order to recover: [4] There was a loss, and it was established by positive evidence. The assured did not''haj£g to go further to demonstrate that such loss was not caused by one of the excepted conditions. To escape the broad undertaking -of this comprehensive cover, the insurer had the burden of establishing that. Jewelers Mutual Insurance Co. v. Balogh, 272 F.2d 889, 892 (5th Cir. 1959). . See, Atlantic Lines, 547 F.2d at 12; Redna Marine Corp. v. Poland, 46 F.R.D. 81, 1969 AMC 1809 (S.D.N.Y. 1969). See also, Northwestern Mutual, 498 F.2d at 561, n.5: this was not a so-called ‘all risks’ policy wherein all losses attributable to external causes are covered, absent specific exclusion thereof, [cites omitted] In an ‘all risks’ policy the burden is plainly on the underwriter to show that an exception to coverage applies. But see, Monarch Industrial Corp. v." } ]

[ { "docid": "12297257", "title": "", "text": "in the rung would have been disclosed upon such an examination, but there was no testimony that it would, and, as the record stands, the failure to inspect had no connection with the injury. The same considerations do not, however, dispose of the count for unseaworthiness. The ladder was clearly unseaworthy, since it broke in ordinary use, and, if the defendant had been in possession of the ship, as owner, and not under the operating contract, it would have been liable under the doctrine of Seas Shipping Company v. Sieracki. In that case the Supreme Court decided that, quite independently of any warranty of seaworthiness, a shipowner was liable to a longshoreman who had been injured by the unseaworthiness of the ship. This, the court held, was not a consensual, but an imposed, liability; and indeed the opinion suggested that it had been a mistake ever to suppose that in origin the liability for, unseaworthiness demanded any warranty, express or implied. In the case at bar the defendant was not in possession of the ship, as owner, when the plaintiff was injured; neither was it an “owner pro hac vice” by virtue of its possession under the operating contract. Was there nevertheless a direct personal liability running from it to the plaintiff? Is that a proper corollary of Seas Shipping Co. v. Sieracki, supra; and, if so, what are the limits of such a liability? In the only two cases where the question has come up, it must be owned that the answer has been “No.” (Our own decision in Re New York Dock Co. was rendered before Seas Shipping Co. v. Sieracki, supra, and for that reason has no bearing upon the question.) The argument in these cases was that, since the “bare-boat charterer” is liable, as' “owner pro hac vice,” the owner out of possession should not also be held, because, as we understand it, there is no personal relation between him and the longshoreman. If these decisions had held no more than that the owner-demisor is not liable for any unseaworthiness arising after the charter, we should" } ]

[ { "docid": "22821570", "title": "", "text": "based on the ship’s unseaworthiness ; although apparently it is a proper factor in fixing the amount of the recovery. Pope & Talbot v. Hawn, 346 U.S. 406, 74 S.Ct. 202, 98 L.Ed. 143. Be that as it may, Judge Ryan expressly found that the libellant was free from negligence, and the respondents have not challenged the finding. The respondents also argue that there can be no maritime lien without a liability “in personam” for which it is security; and that, since we have found them free of personal liability, because the unseaworthiness arose after the demise, no lien can be imposed upon the ship. They cite as an authority for this some passages from The Western Maid, 257 U.S. 419, 42 S.Ct. 159, 66 L.Ed. 299; but the issue there was altogether foreign to the case at bar. All that the Supreme Court held was that since the United States had never consented to assume any liability for the torts of its agents, no maritime liens for collision could arise against ships owned by it, or demised to it, which could be enforced after the ships had passed to private persons, or after the demises had come to an end. In other words, the immunity of the United States extended not only to direct suits against itself, but to property that it owned absolutely, or as demisee, for conduct that, if committed by private persons, would have made them, or the property liable. It is still true that ships of the United States are as immune from maritime liens as they were before the Suits in Admiralty Act was passed, but § 743 gives relief “in personam” “wherever it shall appear that had the vessel or cargo been privately owned and possessed a libel in rem might have been maintained.” Therefore, we are to decide whether a suit will lie “in rem” by precisely the same rules as though only private persons had been concerned in the event. That does not indeed answer the question whether a maritime lien can be imposed upon a ship for a claim on" }, { "docid": "11334393", "title": "", "text": "and were placing the next cover of the middle section alongside it. The libellant was carrying the forward end of this cover by a hook, and to set it in place he had to step upon one of the covers already laid in the after section. As he did so, that cover rocked or swayed and threw him off his balance, so that he fell between the “kingbeams” of the middle section to the deck below. Although the cover did not slip from the flange of the “kingbeam” or of the hatch, as it crossed the “queenbeam” in the aftei'section, it rested upon a protuberance, called a “pad-eye,” on the top of the “queen-beam,” and did not therefore lie flat upon the flange of the “kingbeam.” There had been one cover in the pile with a recess, or “cut-out\" to fit over the “pad- eye,” but the longshoremen had not selected that particular cover for that place, but another that had no “cut-out.” They had failed to do so because they assumed that the covers had been undisturbed over night after they had been taken off and piled on the 18th, and it was the usual practice when recovering a hatch to put back the covers in the order in which they were piled. During the night a gang of cleaners, also in the charterer’s employ, had taken down the pile, and in repiling the covers had not put them back in the same order, and the libellant and his companion did not notice that the right cover was not placed over the “pad-eye.” The libellant’s claim of unseaworthiness was twofold: (1) the absence of the “queen-beam” from the middle section; and (2) the wrong cover placed over the “pad-eye” of the “queenbeam” in the after section. Judge Ryan held that the libellant had failed to show that the absence of the “queenbeam” in the middle section had contributed to the libellant’s fall; and (2) that the respondent, having demised the ship, was not liable for any unseaworthiness that resulted from placing the wrong cover over the “pad-eye” after the" }, { "docid": "23035361", "title": "", "text": "such an inspection, it would not have disclosed any patent defects. There was nothing the matter with the coal. It was all of the bituminous variety, and any bituminous coal is liable, under certain unfavorable, conditions, to spontaneous combustion. It is equally clear to us that there is no sufficient testimony in the record which shows that the method of loading the coal on the vessels was improper; and there is absolutely no evidence whatever that the ships were not loaded in accordance with the regular method. The libels do not allege that any improper methods of loading were adopted. The only testimony suggesting that a different method might have been adopted came from one of the experts called by the libel-ants, and his testimony was purely speculative. He was not engaged in the shipping business, but was the head of a fuel engineering company. He thought it dangerous to take coal on board in hot weather; but there is no testimony showing that great steamships suspend loading in hot weather. He suggested that the coal being loaded on ships from barges ought to be protected from the sun by tarpaulins; but there is no testimony that, such a method has ever been adopted. His testimony was not convincing. Even if a case of improper loading had been made out, It would only prove that the masters were negligent in permitting the coal to be so loaded, and the owners of the ship would be responsible, as the negligence of their agents, the masters, would be imputable to them, and they would not be entitled to recover. In Olsen v. United States Shipping Co., 213 Fed. 18, 129 C. C. A. 607, the owner of a vessel sought to recover damages from the charterer because of improper loading. We held in that case that there could be no recovery, and'that the matter of loading was under the absolute control of the master, and that it was his duty to see that the cargo was properly loaded, and that it was no excuse to him that the charterers insisted on loading" }, { "docid": "11334399", "title": "", "text": "the test has been whether the charterer either can immediately dictate the details of an employee’s service, or by contract can prescribe in advance what those whom he may employ, such as stevedores or the like, shall perform. In the case of harbor scows and the like, even the presence of a bargee on board, as a caretaker, does not prevent the charter from being a demise. The distinction is neither thin nor unreasonable that an owner shall be liable, as in Petterson v. Alaska S. S. Co., 9 Cir., 205 F.2d 478, affirmed 347 U.S. 396, 74 S.C. 601, 98 L.Ed. 798, for defective gear brought on board by a stevedore, but shall not be for unseaworthiness, developing while a demisee is operating the ship. In the first situation the owner has chosen the stevedore and ordinarily has his own officers on board to oversee what goes on; in the second, he has turned over all management to the demisee. Even under a system of compensation regardless of fault — which we should welcome — the question would still remain whether the liability ought to extend beyond the demisee, on whose initiative and for whose profit the venture had been undertaken, and should also include the demisor, who has done no more than put the demisee into possession of the ship, just as those would have done who should provide him with any other means appropriate to his undertaking. Once it is settled that the ship on delivery is well found in hull and gear, we can see no a priori reason why recovery should not be limited to the demisee. We do not consider the question whether, aside from any personal liability of the demisee, a maritime lien was imposed upon the demised ship because of unseaworthiness occurring after the demise, for neither in his libel nor at any other time did the libellant elect that the suit “shall proceed in accordance with the principles of a libel in rem.” We held in Schnell v. United States, supra, 166 F.2d 479, that the failure so to elect in" }, { "docid": "22821565", "title": "", "text": "seaworthiness has from time immemorial been measured by her fitness for the service' in hull, gear and stowage, that in all these respects the ship at bar was well provided, and that the libellant’s injuries were due solely to the negligence of himself, or his companion, Di Donna, or both, in selecting the wrong hatch' cover to place over the “pad-eye.” It is indeed true that to constitute unseaworthiness the defect must be in the ship’s hull, gear or stowage, and even as to these she need not be perfectly, but only “reasonably,” fit for her service. However, it is at times hard to say whether a defect in hull or gear that arises as a momentary step or phase in the progress of work on board should be considered as an incident in a continuous course of operation, which will fasten liability upon the owner only in case it is negligent, or as an unfitness of the ship that makes her pro tanto unseaworthy. The respondents plausibly argue, for instance, that when a strongback is dislodged by the negligence of a winchman, or of those who direct him, or when some one of the crew carelessly turns - a lever that drops a boat from its davits, there is a moment, however short,, during which the ship is unfit and during which her unfitness causes the injury; yet on such occasions she is not deemed unseaworthy. On the other hand, if the wrong hatch cover had been placéd over the “pad-eye” the day before the libellant stepped on it, this ship would have been unseaworthy; for that was in effect just what we decided in Mollica v. Compania Sud Americana, 2 Cir., 202 F.2d 25. There the plaintiff fell in an ill lighted hold, and we allowed recovery because the mate had failed to order the “lampman” to rig the necessary extra lights, plenty of which were on board!. It is true that that decision turned upon whether the unseaworthiness arose before the owner had given up control to the stevedores, which we there erroneously thought to be a" }, { "docid": "22762916", "title": "", "text": "judge went on to hold that it must make Waterman whole because of an indémnity clause in the bareboat charter agreement. 183 F. Supp. 69. The Court of Appeals for the Third Circuit reversed the judgment, holding that neither Waterman nor Pan-Atlantic could be held personally liable for the unseaworthiness and that a libel in rem against a ship could not be sustained unless there was an underlying personal liability to support the in rem action. 307 F. 2d 203. Having previously reserved in Guzman v. Pichirilo, 369 U. S. 698, 700 n. 3 (1962), the question of whether personal liability is essential to the liability of a ship, we granted certiorari. 371 U. S. 938. In determining that there was no underlying personal liability for the unseaworthiness of the vessel, the Court of Appeals held that (1) Waterman, the actual owner, could not be made to respond in damages because the unseaworthiness of its ship arose after it had been demised under bareboat charter to Pan-Atlantic, and (2) Pan- Atlantic could not. have been held personally liable in damages to petitioner for the unseaworthiriess because Pan-Atlantic was petitioner’s employer under the Longshoremen’s and Harbor Workers’ Compensation Act, and, while that Act permits actions for damages against third persons, it provides that compensation liability of an employer under the Act is exclusive and in place of all other liability on his part. We find it unnecessary to decide whether a ship may ever be held liable for its unseaworthiness where no personal liability could be asserted because, in our view, , the Court of Appeals erred in holding that Pan-Atlantic could not be held personally liable' for the unseaworthiness of the ship which caused petitioner’s injury. Pan-Atlantic was operating the Yaka as demisee or bareboat charterer from Waterman. Under such arrangements full possession and control .of the vessel are delivered up to the charterer for a period of time. The ship is then directed by its Master and manned by his crew; it makes his voyages and carries the cargo he chooses. Services performed on board the ship are primarily" }, { "docid": "11334397", "title": "", "text": "it would have was certainly reasonable. There remains the question whether the respondent is liable because of the unseaworthiness of the hatch cover, placed where it was after the ship had been delivered upon a demise. That it would have been liable only if the ship had been unfit, when delivered to the demisee, we held in Cannella v. Lykes S. S. Co., supra, 174 F.2d 794, and we adhere to that ruling, so that the issue depends upon whether the charter was a demise. The only reasons urged by the libellant why it was not, were that it limited the ship’s operation to “Trade Route 1,” and reserved to the owner the power to remove “the Master or Chief Engineer * * * if it shall have reason to be dissatisfied with his conduct, or if it con siders his employment to be prejudicial to the interests of the United States.” However, if either of these officers was removed, the charterer alone could appoint the new master or engineer, so that the management of the ship’s affairs was always to be within the complete control of the charterer’s employees. The limit upon the ship’s trading limits was certainly irrelevant, and the same appears to us to be true of the power of removal. The transfer of liability by reason of a demise can have for its rational basis only the owner’s absence of power to keep the ship seaworthy. It is of course true that by a succession of removals the owner might be able in the end to procure a master or an engineer who would be amenable to his directions; that was not the purpose of the provision, and a series of removals with that in view would have been a plain abuse of the power. While the master or the engineer held his office he was subject to the orders of the charterer quite as much as though the respondent had had no power to remove him. While we have been unable to find that the point has ever been passed upon, over and over again" }, { "docid": "11334391", "title": "", "text": "HAND, Circuit Judge. This is an appeal from a decree in a suit under the Suits in Admiralty Act, dismissing the libel of a longshoreman, who was injured by a fall through an open hatch, while working on board a ship, owned by the United States, but ' chartered to the Moore-MeCormaek Lines, Inc. The suit was based upon the unseaworthiness of the ship by reason of undisputed facts, for which, however, Judge Ryan held that the respondent was not liable, although he assessed the damages at' $55,000- .'against the possibility of a reversal — incidentally, a most desirable practice. The accident happened as follows. The hatch covers for No. 5 upper tweendecks of the ship had been taken off by a gang of longshoremen on -the afternoon of September 18, 1951, and had been stowed in piles alongside the side of the hatch; they were each , five feet long and twenty-two inches wide. The hatch was divided into three sections by two “kingbeams” about twenty feet long, running athwartships, and resting upon flanges at the edges of the hatch. These beams were five feet apai't, so that the covers spanned the distance between them, resting upon flanges along . the edges of the beams. In the center of each of the three sections, so formed, ran another beam — a “queenbeam” — also athwartships, to support the center of the covers, presumably against the stowage of exceptionally heavy cargo. Thus each section was divided into two slits or channels, not quite two and one half feet wide. On the day in question, owing to a defect in one of the “queenbeams” it had not been placed in the middle section, so that that section was an open space about five feet wide. The other two “queenbeams” were in position and on the 19th the gang of longshoremen, of whom the libellant was one, had replaced all the covers on the forward section and several starboard covers on the after section. The libellant and a fellow longshoreman had also placed one or two starboard covers on the middle section," }, { "docid": "22194807", "title": "", "text": "Mr. Justice Clark delivered the opinion of the Court. Petitioner, a longshoreman, was injured while unloading the M/Y Carib, of Dominican registry, when a shackle broke causing one of the ship’s booms to fall upon and severely injure him. He brought this suit in admiralty to recover damages resulting from the unsea-worthy condition of the ship. The libel was in rem against the Carib and in personam against respondent Pichirilo, her owner. The defense was that the Carib had been demised to petitioner’s employer, Bordas & Company, at all times pertinent hereto, including the time when the unseaworthy condition arose. The United States District Court for the District of Puerto Rico, where the Carib lay, held against the ship and the respondent Pichirilo, finding there was no such demise, and judgment for $30,000 was awarded. The Court of Appeals reversed, holding that the Carib was under a demise to petitioner’s employer, which relieved the owner of personal responsibility for unseaworthiness, and that the Carib was not liable in rem because no personal responsibility could be visited upon either the owner or the charterer. 290 F. 2d 812. There being a conflict on the latter point between the Courts of Appeals, see Grillea v. United States, 232 F. 2d 919 (C. A. 2d Cir. 1956), we granted certiorari, 368 U. S. 895. Concluding that the District Court’s findings relative to the operative facts of a demise charter party were not clearly erroneous, we hold that the Court of Appeals erred in reversing its judgment. To create a demise the owner of the vessel must completely and exclusively relinquish “possession, command, and navigation” thereof to the demisee. United States v. Shea, 152 U. S. 178 (1894); Leary v. United States, 14 Wall. 607 (1872); Reed v. United States, 11 Wall. 591 (1871). See generally Gilmore & Black, The Law of Admiralty, 215-219; Robinson, Admiralty, 593-601; Scrutton, Charterparties (16th ed., McNair & Mocatta), 4r-7. It is therefore tantamount to, though just short of, an outright transfer of ownership. However, anything short of such a complete transfer is a time or voyage charter party" }, { "docid": "3474544", "title": "", "text": "the containers in the course of discharge. (c) The percentage of apples that were bruised in both the broken and unbroken containers was 14 percent of the total amount of the apples comprising the cargo belonging to libellant. 37. The respondent-stevedore was employed by the i'espondent-carrier to discharge cargo from the ship at the port of New York, including that of libellant’s eight shipments of apples. 38. The discharge of the ship was made under the supervision and control of the ship’s master and chief officer who remained in charge and who directed and supervised the discharge procedure. 39. (a) To the extent that it was not prevented by the respondent-carrier from doing so, the respondent-stevedore performed the cargo discharge operations in a reasonably careful, prudent and workmanlike manner. (b) Whatever injuries were physically inflicted upon the containers and their contents during the course of the discharge operations are attributable solely to the fact that only one section of the hatch covers were permitted by the ship’s representatives to be removed although the stevedore had requested that the three sections be removed; and, as a result, the stevedore’s employees were not afforded reasonably adequate and proper working space and place. By virtue of the foregoing improper conduct on the part of the ship’s representatives, the stevedore’s employees were required to walk on a portion of the containers without the use of walking boards and some drafts of the cargo hit the hatch coaming and beams left in the hatchway. 40. Respondent-carrier discharged and delivered 43,169 containers, the full quantity that had been placed on board at Buenos Aires. ^CONCLUSIONS OF LAW ^1. This Court has jurisdiction of the parties and of the subject matter of each of the consolidated actions. 2. Libellant was the owner of the cargo in suit. 3. The rights of libellant and the respondent-earrier and the vessel are governed by the U. S. Carriage of Goods by Sea Act, 46 U.S.C. §§ 1300-1315. 4. (a) Libellant has established its right of recovery against the respondent-carrier, the vessel, and the respondent-underwriter for compensatory damages with respect to" }, { "docid": "11334395", "title": "", "text": "ship had been delivered. These are the only questions that we need consider. First, as to the absence of the “queenbeam” from the middle section. The reason for this was concededly that the “queenbeam” was defective, and, if its absence contributed to the libellant’s fall, the respondent is liable, this being a defect in the ship’s gear, for a demisor is liable for unseaworthiness of the hull or gear, existing when the demise is made. Moreover, the owner always has the burden of proving that the ship is seaworthy when delivered, and we will assume, arguendo, that the respondent had the burden of proving that she remained so after delivery, though that is indeed open to much question. However, as the “queenbeam” was certainly defective, the burden of proof as to the ship’s fitness need not concern us. On the other hand, the libellant, not the respondent had the burden of proving that the unseaworthiness was one of the causes of the libellant’s fall. Judge Ryan found that the “queenbeam” would not have stopped it, and that is a finding of fact in strictest sense, which we should therefore accept unless it was “clearly erroneous.” We do not see how it can be seriously argued that the “queenbeam” would certainly have saved the libellant. There would still have been a space of over two feet through which his body could easily have passed; and while it is true that he might have caught hold of the beam as he fell, how can we say that he would have succeeded? If, for instance, his back had been to the middle section when he lost his footing, it would have been impossible for him to catch hold of the beam. Indeed, how can we say with any show of assurance what would have happened, however he faced? Had the burden of proof been on the respondent to prove that the beam, if in place, would not have saved the libellant, a finding that it would not have might be open to reversal; but a finding that the libellant failed to prove that" }, { "docid": "7063632", "title": "", "text": "the libelant’s fall was the presence of oil and grease approximately two feet in diameter; that oil and grease had dripped down from the gantry crane and other machinery above the aft end of the No. 7 hatch and accumulated during the operation of the crane from morning until libelant met with his accident at 4:20 P. M.; that its continued presence constituted an unseaworthy condition. Respondent’s own witness testified that when oil spillage created a hazardous condition, it was the duty of officers to cause its removal either by placing sawdust or a chemical absorbent material thereon, but there is no proof that even this was done. The vessel on this ground alone is liable in rem. The evidence sustains a further finding that at the time of the accident the vessel was also unseaworthy because it lacked adequate devices or appurtenances to minimize or arrest the drippings from various parts of the gantry crane during the course of operations. The absence of such safeguards rendered the vessel not reasonably fit to permit libelant to perform his task with reasonable safety and she is liable in rem. Finally, the evidence also warrants a finding that Coastal, the owner, turned over the vessel to Sea-Land in an unseaworthy condition in that it then lacked adequate devices to minimize or reduce the spillage of oil. The gantries leaked oil while the vessel was being converted and before she was turned over to Sea-Land. In an effort to correct this condition, as already noted, drip pans were installed. The defense witness testi fied that after the vessel had been turned over to Sea-Land they were removed because they created a “greater hazard” since they overflowed when it rained and the oil drippings spilled on the deck and other working areas with the ship’s motion. Thus there was a failure to supply proper appurtenances at the time of the delivery of the vessel to Sea-Land under the demise charter and Coastal is held liable in personam. The libelant suffered a compound fracture and dislocation of the distal joint, right thumb; contusion and abrasion" }, { "docid": "22990027", "title": "", "text": "MARIS, Circuit Judge. The basic question which this case raises is whether the failure of the shipowner to provide a safe place to work affords to an injured seaman an independent ground for the recovery of damages without proof of negligence or unseaworthiness. It appears that the libellant, a cook on the Rufus W. Peclcham, slipped on a substance, apparently Jello, while going down a stairway leading to the chill box to get food for the crew. For injuries to his knee thus sustained he brought this suit. There was. no evidence as to when or how the substance got on the step. The district court held that the evidence failed to establish negligence and also that it did not show that the owner had failed to maintain the ship in a seaworthy condition. Concluding that there was no basis for holding that the respondent was liable to the libellant for damages merely because of the temporarily unsafe condition o<f the stairway in question, the court entered judgment for the respondent on the libellant’s claim for damages. 87 F.Supp. 203. We think that the district court was right in holding that in the absence of evidence of negligence or unseaworthiness the respondent was not liable for failing to provide a safe place to work. “If,” as Chief Judge Kirkpatrick said in his opinion, 87 F.Supp. 203, 205, “the place where a seaman works is. unsafe that is a fact which may establish that the ship was unseaworthy or that t'he employees were negligent, but” there is “no basis for holding that there is a third and separate ground of liability in this regard.” In the .present case the district court concluded that the evidence failed to establish negligence. There being no evidence as to how long a time the Jello had been on the step prior to the accident, a finding that the ship’s officers were negligent in failing to remove it after they knew or should have known of its existence would, we think, not hav-e been warranted. Nor can we say that the district court erred in concluding" }, { "docid": "11334396", "title": "", "text": "and that is a finding of fact in strictest sense, which we should therefore accept unless it was “clearly erroneous.” We do not see how it can be seriously argued that the “queenbeam” would certainly have saved the libellant. There would still have been a space of over two feet through which his body could easily have passed; and while it is true that he might have caught hold of the beam as he fell, how can we say that he would have succeeded? If, for instance, his back had been to the middle section when he lost his footing, it would have been impossible for him to catch hold of the beam. Indeed, how can we say with any show of assurance what would have happened, however he faced? Had the burden of proof been on the respondent to prove that the beam, if in place, would not have saved the libellant, a finding that it would not have might be open to reversal; but a finding that the libellant failed to prove that it would have was certainly reasonable. There remains the question whether the respondent is liable because of the unseaworthiness of the hatch cover, placed where it was after the ship had been delivered upon a demise. That it would have been liable only if the ship had been unfit, when delivered to the demisee, we held in Cannella v. Lykes S. S. Co., supra, 174 F.2d 794, and we adhere to that ruling, so that the issue depends upon whether the charter was a demise. The only reasons urged by the libellant why it was not, were that it limited the ship’s operation to “Trade Route 1,” and reserved to the owner the power to remove “the Master or Chief Engineer * * * if it shall have reason to be dissatisfied with his conduct, or if it con siders his employment to be prejudicial to the interests of the United States.” However, if either of these officers was removed, the charterer alone could appoint the new master or engineer, so that the management of" }, { "docid": "22762915", "title": "", "text": "Mr. Justice Black delivered the opinion of the Court. Petitioner, a longshoreman, filed a libel in rem in a United States District Court against the steamship Yaka to recover for injuries he sustained while engaged in loading the vessel. The Yaka’s owner, Waterman Steamship Corporation, appeared as claimant of the ship but brought in as an additional defendant petitioner’s employer, Pan- Atlantic Steamship Corporation, which at the time of’ the accident was operating Waterman’s ship under a bareboat charter and whose negligence Waterman alleged caused petitioner’s injury. The district judge found that at the time of the injury petitioner was in the ship standing on a stack of rectangular, wooden, pallets used in loading the vessel and that the sole cause of the injury was a latent defect in one of the planks of a pallet,' which caused it to break. The judge held that the defective pallet supplied by- Pan-Atlantic rendered Waterman’s Yaka unseaworthy and that therefore petitioner could recover against the ship. But since the defective pallet was furnished by Pan-Atlantic, the trial judge went on to hold that it must make Waterman whole because of an indémnity clause in the bareboat charter agreement. 183 F. Supp. 69. The Court of Appeals for the Third Circuit reversed the judgment, holding that neither Waterman nor Pan-Atlantic could be held personally liable for the unseaworthiness and that a libel in rem against a ship could not be sustained unless there was an underlying personal liability to support the in rem action. 307 F. 2d 203. Having previously reserved in Guzman v. Pichirilo, 369 U. S. 698, 700 n. 3 (1962), the question of whether personal liability is essential to the liability of a ship, we granted certiorari. 371 U. S. 938. In determining that there was no underlying personal liability for the unseaworthiness of the vessel, the Court of Appeals held that (1) Waterman, the actual owner, could not be made to respond in damages because the unseaworthiness of its ship arose after it had been demised under bareboat charter to Pan-Atlantic, and (2) Pan- Atlantic could not. have been" }, { "docid": "11334398", "title": "", "text": "the ship’s affairs was always to be within the complete control of the charterer’s employees. The limit upon the ship’s trading limits was certainly irrelevant, and the same appears to us to be true of the power of removal. The transfer of liability by reason of a demise can have for its rational basis only the owner’s absence of power to keep the ship seaworthy. It is of course true that by a succession of removals the owner might be able in the end to procure a master or an engineer who would be amenable to his directions; that was not the purpose of the provision, and a series of removals with that in view would have been a plain abuse of the power. While the master or the engineer held his office he was subject to the orders of the charterer quite as much as though the respondent had had no power to remove him. While we have been unable to find that the point has ever been passed upon, over and over again the test has been whether the charterer either can immediately dictate the details of an employee’s service, or by contract can prescribe in advance what those whom he may employ, such as stevedores or the like, shall perform. In the case of harbor scows and the like, even the presence of a bargee on board, as a caretaker, does not prevent the charter from being a demise. The distinction is neither thin nor unreasonable that an owner shall be liable, as in Petterson v. Alaska S. S. Co., 9 Cir., 205 F.2d 478, affirmed 347 U.S. 396, 74 S.C. 601, 98 L.Ed. 798, for defective gear brought on board by a stevedore, but shall not be for unseaworthiness, developing while a demisee is operating the ship. In the first situation the owner has chosen the stevedore and ordinarily has his own officers on board to oversee what goes on; in the second, he has turned over all management to the demisee. Even under a system of compensation regardless of fault — which we should welcome" }, { "docid": "11334394", "title": "", "text": "had been undisturbed over night after they had been taken off and piled on the 18th, and it was the usual practice when recovering a hatch to put back the covers in the order in which they were piled. During the night a gang of cleaners, also in the charterer’s employ, had taken down the pile, and in repiling the covers had not put them back in the same order, and the libellant and his companion did not notice that the right cover was not placed over the “pad-eye.” The libellant’s claim of unseaworthiness was twofold: (1) the absence of the “queen-beam” from the middle section; and (2) the wrong cover placed over the “pad-eye” of the “queenbeam” in the after section. Judge Ryan held that the libellant had failed to show that the absence of the “queenbeam” in the middle section had contributed to the libellant’s fall; and (2) that the respondent, having demised the ship, was not liable for any unseaworthiness that resulted from placing the wrong cover over the “pad-eye” after the ship had been delivered. These are the only questions that we need consider. First, as to the absence of the “queenbeam” from the middle section. The reason for this was concededly that the “queenbeam” was defective, and, if its absence contributed to the libellant’s fall, the respondent is liable, this being a defect in the ship’s gear, for a demisor is liable for unseaworthiness of the hull or gear, existing when the demise is made. Moreover, the owner always has the burden of proving that the ship is seaworthy when delivered, and we will assume, arguendo, that the respondent had the burden of proving that she remained so after delivery, though that is indeed open to much question. However, as the “queenbeam” was certainly defective, the burden of proof as to the ship’s fitness need not concern us. On the other hand, the libellant, not the respondent had the burden of proving that the unseaworthiness was one of the causes of the libellant’s fall. Judge Ryan found that the “queenbeam” would not have stopped it," }, { "docid": "17717772", "title": "", "text": "charging that the incompetency was known, or could with reasonable care have been known, to the ship’s officers. This objection, if relied upon by the respondent, should have been taken before answer, by an exception, so that, if held good, the libelant might, if so advised, have amended. Exit .we are of the opinion that the allegations of the libel are sufficient. The libel alleges the dxity of the ship to operate the winch, and (hat it required an experienced and skillfxil man to operate it, so as to avoid injuring the stevedores who were in the hold receiving the cotton as it was lowered down; that the col ton which fell on the libelant was dropped upon him in the hold by the negligent operation of the winch; that the master of the ship had taken away an experienced person who had before been' operating it, and had substituted an ordinaxy laborer, entirely inexperienced in handling a winch driven by steam; and that, by reason of the neglect by the master of the ship of the dxity to employ a competent winchman, the libelant was injured. It is contended for the appellee that the mere employment of an incompetent winchman would not make the ship liable, unless it was further alleged and proved that the incompetency was known to the master, or might have been known to him. The admiralty courts discourage prolixity and technicalities in pleading. The libel shoxild state the facts necessary to give the coxirt jxxrisdiction. It should not contain conclusions of law, but a statement of fads, in the form prescribed by admiralty rxxle 23, expressed with brevity, clearness, and certainty. 1 Conk. Adm. (2d Ed.) 72. The gravamen of this libel is the neglect of duty by the officers of the ship, is not providing a competent winchman. The allegation is that the regular winchman was sent to other duties by the master, and that in his place he put an ordinary laborer, without experience or shill. It is true that the libelant must sustain the burden of showing that, with reasonable care, the" }, { "docid": "22762917", "title": "", "text": "held personally liable in damages to petitioner for the unseaworthiriess because Pan-Atlantic was petitioner’s employer under the Longshoremen’s and Harbor Workers’ Compensation Act, and, while that Act permits actions for damages against third persons, it provides that compensation liability of an employer under the Act is exclusive and in place of all other liability on his part. We find it unnecessary to decide whether a ship may ever be held liable for its unseaworthiness where no personal liability could be asserted because, in our view, , the Court of Appeals erred in holding that Pan-Atlantic could not be held personally liable' for the unseaworthiness of the ship which caused petitioner’s injury. Pan-Atlantic was operating the Yaka as demisee or bareboat charterer from Waterman. Under such arrangements full possession and control .of the vessel are delivered up to the charterer for a period of time. The ship is then directed by its Master and manned by his crew; it makes his voyages and carries the cargo he chooses. Services performed on board the ship are primarily for his benefit. It has long been recognized in the law of admiralty that for many, if not most, purposes the bareboat charterer is to be treated as the owner, generally called owner pro hac vice. We have no doubt, and indeed Pan-Atlantic admits, that, barring explicit statutory exemption, the. bareboat charterer is personally liable for the unseaworthiness of a chartered vessel, and that this liability will support a libel in rem against the vessél. Since the unseaworthiness of the Yaka is no longer in dispute, the only question is whether the Longshoremen’s Act prevents recovery by petitioner for Pan-Atlantic’s breach of its warranty of seaworthiness. In Seas Shipping Co. v. Sieracki, 328 U. S. 85 (1946), we held that a shipowner’s warranty of seaworthiness extended to a longshoreman injured while loading the ship, even though the longshoreman was employed by an independent contractor. In doing so, we noted particularly the hazards of marine service, the helplessness of the men to ward off the perils of unseaworthiness, the harshness of forcing them' to shoulder their" }, { "docid": "8634536", "title": "", "text": "that it was neither a time charter, nor a bare boat charter, rather than that there was no charter at all. A demise, of course, is not a time charter, and it need not be of a bare boat. United States v. Shea, 1894, 152 U.S. 178, 14 S.Ct. 519, 38 L.Ed. 403. The evidence showed that respondent, permanently residing within the Dominican Republic, had had' no connection with the operation of the Caribe for some five years, except that he had appointed, or “employed,” the master. That action would not mean a control of the vessel so as to prevent a demise. See United States v. Shea, supra; Grillea v. United States, 2 Cir., 1956, 229 F.2d 687, 689-690; The Willie, 2 Cir., 1916, 231 F. 865. Bordas’ representative testified, without contradiction, that the master was under Bordas’ orders. Bordas paid the master, the crew, and all expenses of the vessel, and paid respondent a flat monthly sum. The suggestion that it was merely an agent for respondent is without merit. Libellant offers no explanation why an agent should be making fixed monthly payments to a principal, rather than the reverse. We hold the evidence indisputably shows that Bordas was operating the ship as a demisee. Reed v. United States, 1870, 11 Wall. 591, 601, 78 U.S. 591, 601, 20 L.Ed. 220 (“possession, command, and navigation”). In Vitozi v. Balboa Shipping Co., 1 Cir., 1947, 163 F.2d 286, we held that an owner who has surrendered all control by demise was not liable in personam for unseaworthiness. Possibly we erred in extending this rule indiscriminately to cases where the unseaworthy condition preceded the demise. See Cannella v. Lykes Bros. S. S. Co., 2 Cir., 1949, 174 F.2d 794, 795, certiorari denied, 338 U.S. 859, 70 S.Ct. 102, 94 L.Ed. 526. But we see no reason to reconsider when, as here, the defective condition arose only after the owner had parted with all possession. See Grillea v. United States, supra, 229 F.2d at pages 689, 690. The judgment in personam against respondent must be set aside. Respondent, as claimant to" } ]

[ { "docid": "13191892", "title": "", "text": "PER CURIAM. On November 14, 2002, this court certified the following question to the New York Court of Appeals: Where an insured has already complied with a policy’s notice of claim requirement, does New York require the insurer to demonstrate prejudice in order to disclaim coverage based on the insured’s failure to comply with the policy’s notice of suit requirement? ' Varrichio v. Chicago Ins. Co., 312 F.3d 544 (2d Cir.2002). The New York Court of Appeals accepted the certified question on December 12, 2002. The parties subsequently notified this court that they had entered into a settlement agreement that is conditional on the dismissal of this appeal and have requested that we dismiss the appeal. The New York Court of Appeals has informed us that, under the circumstances, it has no objection to the appeal being dismissed and has asked us to withdraw the certification. Accordingly we Withdraw the certification to the New York Court of Appeals and Dismiss the appeal." } ]

[ { "docid": "6154201", "title": "", "text": "notice of entry of judgment upon the attorney for the insured, or upon the insured, and upon the insurer, then an action may ... be maintained against the insurer under the terms of the policy or contract. If such a provision is not included in the policy, a court construing the policy will enforce it as if it did include the provision. N.Y. Ins. Law § 3103(a) (McKinney 1985). VAN GRAAFEILAND, Circuit Judge, concurring: New York is one of the minority of states that apply the “no prejudice” rule in cases involving late notices of occurrence. See Ostrager and Newman, Handbook on Insurance Coverage Disputes §§ 4.02[c][l]-[2], 4.04 (7th ed.1988). The question not yet answered by the New York Court of Appeals is whether New York will apply the same unyielding doctrine in cases involving late notices of claim or suit, or whether it will follow the majority of jurisdictions by holding that an “insured’s failure to forward demands or other court papers will not relieve an insurer of its duties to defend or indemnify absent a showing of prejudice to the insurer.” Id. § 402[b][2], at 90. In addition to the cases of Lauritano v. American Fidelity Fire Ins. Co., 3 A.D.2d 564, 162 N.Y.S.2d 553 (1957), aff'd, 4 N.Y.2d 1028, 177 N.Y.S.2d 530, 152 N.E.2d 546 (1958), Home Indem. Co. v. State Farm Mut. Auto. Ins. Co., 64 A.D.2d 212, 409 N.Y.S.2d 673 (1978), and Brooklyn Union Gas Co. v. North River Ins. Co., 124 A.D.2d 621, 508 N.Y.S.2d 26 (1986), cited by my colleague, there are other lower court decisions in New York that inject the requirement of prejudice into carriers’ defenses against coverage in cases of this nature. See, e.g., Aetna Ins. Co. v. Millard, 25 A.D.2d 341, 343-44, 269 N.Y.S.2d 588 (1966); Cohen v. East Coast Ins. Co., 54 Misc.2d 813, 815, 283 N.Y.S.2d 371 (1967); Zappia v. Allstate Ins. Co., 28 Misc.2d 723, 724, 212 N.Y.S.2d 698 (1961). These eases hold in substance that where, despite an insured’s failure to turn over process, the insured’s carrier is given an opportunity to defend, the carrier" }, { "docid": "6154185", "title": "", "text": "would resolve the uncertainty or ambiguity.” (citation omitted)). C.New York’s “No Prejudice” Rule Under the no prejudice rule, “the notice provision for á primary insurer operates as a condition precedent and ... the insurer need not show prejudice to rely on the defense of late notice.” Unigard Security, 79 N.Y.2d at 581, 584 N.Y.S.2d at 292, 594 N.E.2d at 573 (citations omitted). Thus the no prejudice rule is an exception to two principles of the common law of contracts: (1) that ordinarily one seeking to escape the obligation to perform under a contract must demonstrate a material breach or prejudice ...; and (2) that a contractual duty ordinarily will not be construed as a condition precedent absent clear language showing that the parties intended to make it a condition. Id. (citations omitted). The New York Court of Appeals has characterized the no prejudice rule as a “presumption of prejudice.” Unigard Security, 79 N.Y.2d at 584, 584 N.Y.S.2d at 294, 594 N.E.2d at 575 (stating, in a late notice of occurrence case, that a “reinsurer must demonstrate how [late notice] was prejudicial and may not rely on the presumption of prejudice that applies in the late notice disputes between primary insurers and their insureds” (emphases added)). Except in cases where some excuse makes the delayed notice reasonable, it is clear that the presumption is a conclusive one. New York v. Blank, 27 F.3d 783, 793-94 (2d Cir.1994) (stating that “under New York law, ‘[a]bsent a valid excuse’ the insured’s failure to provide notice “vitiates coverage’”) (quoting In re Allcity Ins. Co. and Jiminez, 78 N.Y.2d 1054, 1055, 576 N.Y.S.2d 87, 88, 581 N.E.2d 1342, 1343 (1991)). The no prejudice rule relieves the burden on the insurer to prove that prejudice resulted from the insured’s failure to provide notice. The New York Court of Appeals recently noted that other courts have articulated the various rationales for the no prejudice rule. Unigard Security, 79 N.Y.2d at 581-82, 584 N.Y.S.2d at 292, 594 N.E.2d at 573. Among those rationales cited by the Unigard Security Court were that ‘the insurer [must have] an opportunity to" }, { "docid": "17597537", "title": "", "text": "to govern the policy because there were “repeated references” to Indiana law in the UIM endorsement. Id. at 165. In Clover, however, the arbitration clause at issue was contained in the state-specific endorsement. See id. at 164 (“[I]t is the Indiana UIM endorsement itself[,] not merely the policy, which contains the arbitration clause whose scope is at issue.”). By contrast, the notice requirement at issue in this case is not contained in any of the provisions that reference New York law. 1. Identifying and Classifying the Conflict Applying the above framework, we must first determine whether there is an “actual” conflict between the New York and Pennsylvania late notice laws. Pennsylvania requires an insurer to establish it was prejudiced by an insured’s late notice before it can disclaim coverage on those grounds (the “prejudice rule”). Brakeman, 371 A.2d at 198. Under New York law, “absent a valid excuse” for late notice, an insured’s “failure to satisfy the notice requirement vitiates the policy” regardless of whether the insurer can show prejudice (the “no prejudice rule”). Security Mutual, 293 N.E.2d at 78. Because there are relevant differences between the New York and Pennsylvania late notice laws, we must proceed to the second prong of the inquiry and determine if this is a true or false conflict. Hammersmith contends there is a false conflict because only Pennsylvania’s interests will be harmed if the Court does not apply its law. Hammersmith reasons that the application of Pennsylvania law will not impair the interests underlying New York law because, if an insurer actually suffered “the harm New York’s rule is intended to avert ... [,] then [it could establish prejudice and] avoid its coverage obligation even under Pennsylvania law.” Appellant’s Br. 32. Conversely, applying New York’s no-prejudice rule would impair Pennsylvania’s interest in protecting an insured or accident victim from the “unnecessary forfeiture of insurance benefits.” Id. at 31. We disagree with Hammersmith and find there is a true conflict between Pennsylvania and New York law. As Hammersmith points out, Pennsylvania’s prejudice rule is designed to safeguard the interests of the insured and accident victim" }, { "docid": "17597525", "title": "", "text": "summary judgment, based on allegedly late notice, and Hammersmith moved for partial summary judgment, asserting that TIG’s delay in disclaiming coverage estopped TIG from avoiding liability. The District Court granted summary judgment to TIG and denied Hammers-mith’s motion for partial summary judgment. The District Court’s grant of summary judgment in favor of TIG did not resolve any of the issues concerning Aon, and the Court entered an Order under Rule 54, Fed.R.Civ.P., granting final judgment as to the issues between Hammers-mith and TIG. This appeal follows. On the choice of law issue, the District Court concluded that Pennsylvania’s choice-of-law rules require that an insurance contract be governed by the laws of the state in which the contract was issued and delivered, which was New York. As to the issue of late notice, the District Court held that, under New York law, an excess insurer is entitled to receive prompt notice and need not show prejudice from delay in receiving notice. The District Court concluded that, viewing the facts in the light most favorable to Ham-mersmith, TIG was not timely notified of the underlying accident and/or lawsuit, and thus DKM, the insured parent of CCC, was not entitled to coverage, absent some showing that TIG was estopped from disclaiming coverage based on its delay in doing so. In denying Hammersmith’s Motion for Partial Summary Judgment on the ground that TIG failed to disclaim coverage as soon as reasonably possible, the District Court held that TIG’s investigation of the facts and disclaimer were reasonable as a matter of law. III. Choice of Law The parties disagree as to which state law applies in this case. Hammers-mith urges Pennsylvania law, which requires an insurer to prove that the notice provision contained in the insurance contract was breached, and it suffered prejudice as a result. Brakeman v. Potomac Ins. Co., 472 Pa. 66, 371 A.2d 193 (1977). TIG maintains that the District Court correctly applied New York law, which does not require an insurer to establish prejudice in order to disclaim coverage based on late notice. Security Mut. Ins. Co. of N.Y. v. Acker-Fitzsimons" }, { "docid": "6712702", "title": "", "text": "459, 801 N.E.2d 835, the New York Court of Appeals addressed the reasonableness of an insurer’s delay of — coincidentally—48 days in disclaiming coverage. The Court of Appeals for the Second Circuit had certified to the New York Court of Appeals two questions: first, whether “an insurer who has discovered grounds for denying coverage [may] wait to notify the insured of denial of coverage until after the insurer has conducted an investigation into alternate, third-party sources of insurance ben-efitting the insured, although the existence or non-existence of alternate insurance sources is not a factor in the insurer’s decision to deny coverage”; and second, whether, “[i]f an investigation into alternate sources of insurance is not a proper basis for delayed notification under N.Y. Ins. Law § 3420(d), ... an unexcused delay in notification of 48 days [is] unreasonable as a matter of law under § 3420(d).” New York Univ. v. First Fin. Ins. Co. 322 F.3d 750, 752 (2d Cir.2003). The New York Court of Appeals answered the first question in the negative, and the second in the affirmative. 1 N.Y.3d at 68, 769 N.Y.S.2d 459, 801 N.E.2d 835. With respect to the first question, the court stated that it could not “accept ... that delay simply to explore other sources of insurance for the policyholder— an excuse unrelated to the insurer’s own decision to disclaim [which was based on the insured’s late notice of occurrence] — is permissible.” Id. at 69, 769 N.Y.S.2d 459, 801 N.E.2d 835. With respect to the second question, the court began by stating that while it “appreciate^] the desire for a fixed yardstick against which to measure the reasonableness, or unreasonableness, of an insurer’s delay[,] ... most often the question whether a notice of disclaimer has been sent ‘as soon as is reasonably possible’ will be a question of fact, dependent on all of the circumstances of a ease that make it reasonable, or unreasonable, for an insurer to investigate coverage.” Id. at 70, 769 N.Y.S.2d 459, 801 N.E.2d 835. The court also made clear, however, that not every case involving delayed disclaimer will necessarily" }, { "docid": "23289055", "title": "", "text": "did not believe the April 10, 1986 notice letter from the insureds was requesting coverage with respect to the intent-to-sue letter is not entitled to any consideration in light of the fact that the intent-to-sue-letter was referred to and enclosed. That statement is, in any event, irrelevant. Whether or not Lumbermens understood its assertion of defenses to be directed only to the 1981 complaints, any waiver of the late-notice-of-occurrence defense inferable from the disclaimer letters is a waiver of that defense with respect to any claims which arise from the occurrence for which late notice was waived. See Olin Corp., 743 F.Supp. at 1055. Here, it is uncontrovertible that the same occurrence gave rise to the 1981 complaints, the March 1986 intent-to-sue letter, and the December 1986 State CERCLA complaint. .Appellants do not. rely on the doctrine of estoppel, but solely on waiver. See Albert J. Schiff and Associates, Inc. v. Flack, 51 N.Y.2d 692, 697-99, 435 N.Y.S.2d 972, 974-75, 417 N.E.2d 84, 86-87 (distinguishing estoppel and waiver); Kiernan v. Dutchess County Mutual Ins. Co., 150 N.Y. 190, 194-95, 44 N.E. 698, 699-700 (1896) (same); 16B Appleman & Apple-man, Insurance Law & Practice, § 9081 (rev'd ed. 1981) (same). . Lumbermens also points to Guberman v. William Penn Life Ins. Co., 146 A.D.2d 8, 538 N.Y.S.2d 571 (2d Dep't 1989). Guberman holds that an insurer is barred from relying on a defense which it failed to assert in a disclaimer letter, only when the insured can demonstrate that she has suffered prejudice. Although the opinion is thoughtful and considered, we decline to follow it for several reasons. First, the opinion, which relies on the many out-of-state cases which impose the prejudice requirement where waiver is claimed, seems not merely to extend, but to contradict previous New York law as pronounced by the Court of Appeals and discussed above. Second, the opinion blurs the distinction between waiver and estoppel, a distinction the Court of Appeals has attempted to preserve, see Albert J. Schiff, 51 N.Y.2d at 697-98, 435 N.Y.S.2d at 974-75, 417 N.E.2d at 86-87, and mis-interprets Schiff’s explanation of the" }, { "docid": "6154203", "title": "", "text": "may not disclaim because of such failure. The differences between the “no prejudice” adherents and the requirement-of-prejudice adherents are highlighted in Lauritano, supra. The insurance policy in that case contained a notice of claim provision almost identical with the one at issue herein. There, the majority in the Appellate Division distinguished between notices of occurrence or accident, on the one hand, and notices of claim or suit, on the other, stating with regard to the latter that “[i]t would be a rare occasion indeed when the carrier could not be placed in just as good a position as it would have enjoyed had the insured complied fully with his obligations.” 3 A.D.2d at 571, 162 N.Y.S.2d 553. The dissent in Lauritano put this holding squarely in issue when it said: The provisions of the policy are unambiguous, and state that no action is maintainable “unless, as a condition precedent thereto, the insured shall have fully complied with all the terms of the policy.” Id. at 581, 162 N.Y.S.2d 553. The dissent followed this statement with the unqualified holding that the insured’s failure to deliver the summons and complaint to the carrier was “fatal to this action.” Id. In the face of this clear-cut divergence between the majority and the dissent, the Court of Appeals’ affirmance, albeit without opinion, should not be lightly dismissed. This affirmance made the Court of Appeals “responsible only for the point decided, and did not make [the Court’s members] guarantors of all the reasons given or opinions expressed.” See Rogers v. Decker, 131 N.Y. 490, 493, 30 N.E. 571 (1892). However, although an affirmance without opinion does not make the Appellate Division’s decision binding authority, it does make the decision “persuasive” authority. See Tepper v. Tannenbaum, 65 A.D.2d 359, 360-61, 411 N.Y.S.2d 588 (1978). In the light of all the foregoing, I am not convinced that the New York Court of Appeals would apply its “no prejudice” rule generally and without exception in all notice of claim or suit cases. I therefore would limit our holding to the facts of the instant case, where the carrier" }, { "docid": "23289044", "title": "", "text": "whether, under New York law, waiver of the late notice defense is conclusively established by Lumbermens’ assertion of several grounds for disclaiming coverage, without asserting the late notice grounds, in its November and May letters, or whether Lumbermens’ intent is a question that remains open for the trier of fact. As we held in Luria Bros. & Co. v. Alliance Assurance Co., 780 F.2d 1082, 1090-91 (2d Cir.1986), New York law establishes that an insurer is deemed, as a matter of law, to have intended to waive a defense to coverage where other defenses are asserted, and where the insurer possesses sufficient knowledge (actual or constructive) of the circumstances regarding the unasserted defense. The insureds’ here are thus entitled as a matter of law to prevail on their claim of waiver. Support for this conclusion comes from several decisions of the New York Court of Appeals. In General Accident Insurance Group v. Cirucci, 46 N.Y.2d 862, 864, 414 N.Y.S.2d 512, 514, 387 N.E.2d 223, 225 (1979) (per curiam), the court stated that “[although, under the facts of this case a disclaimer might have been premised on [a certain ground], since this ground was not raised in the letter of disclaimer, it may not be asserted now.” The court went on to offer an explanation for this per se rule: Although an insurer may disclaim coverage for a valid reason ... the notice of disclaimer must promptly apprise the claimant with a high degree of specificity of the ground or grounds on which the disclaimer is predicated. Absent such specific notice, a claimant might have difficulty assessing whether the insurer will be able to disclaim successfully. This uncertainty could prejudice the claimant’s ability to ultimately obtain recovery. In addition, the insurer’s responsibility to furnish notice of the specific ground on which the disclaimer is based is not unduly burdensome, the insurer being highly experienced and sophisticated in such matters. Id. That the court did not see a need to discuss any of the particular facts or circumstances of the situation, in support of its conclusion that the insurer had waived, is" }, { "docid": "6712692", "title": "", "text": "coverage for death or bodily injury arising out of a motor vehicle accident or any other type of accident occurring within this state” must provide the insured and the injured person or other claimant with written notice of its intent to disclaim “as soon as is reasonably possible.... ” N.Y. Ins. Law § 3420(d). “[A]n insurer cannot deny coverage if it delays unreasonably in issuing its denial, even if the insured has itself delayed unreasonably in notifying the insurer of the occurrence.” New York Univ. v. First Fin. Ins. Co., 322 F.3d 750, 753 n. 3 (2d Cir.2003). See also Arbitration Between Allcity Ins. Co. and Jimenez, 78 N.Y.2d 1054, 1056, 576 N.Y.S.2d 87, 581 N.E.2d 1342 (1991) (“an insurer who fails to timely disclaim liability or deny coverage ‘as soon as is reasonably possible,’ when required by Insurance Law § 3420(d), waives its affirmative defense of late notice”) (internal citations omitted); Schulman v. Indian Harbor Ins. Co., 40 A.D.3d 957, 958, 836 N.Y.S.2d 682, 684 (2d Dep’t 2007) (“The failure of an insured to timely notify the insurer of a claim does not excuse the insurer’s failure to timely disclaim coverage”). “Under this statute, it is not necessary for an insured to show prejudice caused by an insurer’s unreasonable delay in disclaiming liability or denying coverage.” Commercial Union Ins. Co. v. International Flavors & Fragrances, Inc., 822 F.2d 267, 274 n. 5 (2d Cir.1987) (citing Allstate Ins. Co. v. Gross, 27 N.Y.2d 263, 269, 317 N.Y.S.2d 309, 265 N.E.2d 736 (1970)). In addition, “[i]t is settled law that the subdivision applies whether the policy is primary or excess.” Zappone v. Home Ins. Co., 55 N.Y.2d 131, 135, 447 N.Y.S.2d 911, 432 N.E.2d 783 (1982). There is no “fixed yardstick against which to measure the reasonableness, or unreasonableness, of an insurer’s delay. ...” First Fin. Ins. Co. v. Jetco Contr. Corp., 1 N.Y.3d 64, 70, 769 N.Y.S.2d 459, 801 N.E.2d 835 (2003). “[M]ost often the question whether a notice of disclaimer has been sent ‘as soon as is reasonably possible’ will be a question of fact, dependent on all of" }, { "docid": "6712701", "title": "", "text": "all on the date of the loss and complete my coverage investigation. I could have denied coverage and continued to ask Mr. McAlpin for information and continued to ask Progressive for information, but it’s been my experience that once you deny coverage that is not a economical [sic] use of time. Id. at 107. Plaintiffs attorney replied, “So you’re saying that as of June 26th you had enough information to determine that you could deny based on late notice?” White answered, “No. Because I didn’t have a policy and if there was no policy in effect on the date of loss, there would be no reason to deny for late notice, you’d be denying for lack of a policy.” Id. at 108. Even drawing all reasonable inferences in RLI’s favor, I fail to see how this evidence could give rise to a factual issue as to the reasonableness of RLI’s 48-day delay in disclaiming coverage. I also conclude that RLI’s delay was unreasonable as a matter of law. In Jetco, 1 N.Y.3d 64, 769 N.Y.S.2d 459, 801 N.E.2d 835, the New York Court of Appeals addressed the reasonableness of an insurer’s delay of — coincidentally—48 days in disclaiming coverage. The Court of Appeals for the Second Circuit had certified to the New York Court of Appeals two questions: first, whether “an insurer who has discovered grounds for denying coverage [may] wait to notify the insured of denial of coverage until after the insurer has conducted an investigation into alternate, third-party sources of insurance ben-efitting the insured, although the existence or non-existence of alternate insurance sources is not a factor in the insurer’s decision to deny coverage”; and second, whether, “[i]f an investigation into alternate sources of insurance is not a proper basis for delayed notification under N.Y. Ins. Law § 3420(d), ... an unexcused delay in notification of 48 days [is] unreasonable as a matter of law under § 3420(d).” New York Univ. v. First Fin. Ins. Co. 322 F.3d 750, 752 (2d Cir.2003). The New York Court of Appeals answered the first question in the negative, and the second" }, { "docid": "11771496", "title": "", "text": "584 N.Y.S.2d 290, 292, 594 N.E.2d 571, 573 (1992) (\"It is settled New York law that ... the insurer need not show prejudice to rely on the defense of late notice.”) (citation omitted); Security Mut. Ins. Co. v. Acker-Fitzsimons Corp., 31 N.Y.2d 436, 340 N.Y.S.2d 902, 904-05, 293 N.E.2d 76, 78 (1972) (same); Olin Corp. v. Insurance Co. of North America, 966 F.2d 718, 723 (2d Cir.1992) (\"Under New York law, an insured’s failure to comply with a notice-of-occurrence provision is generally a complete defense even if the insurer was not prejudiced by the untimely notification.”); Utica Mut. Ins. Co. v. Fireman’s Fund Ins. Cos., 748 F.2d 118, 121 (2d Cir.1984) (same). . Accord Unigard Sec. Ins. Co. v. North River Ins. Co., 79 N.Y.2d 576, 584 N.Y.S.2d 290, 292, 594 N.E.2d 571, 573 (1992); AXA Marine & Aviation Ins. (UK) Ltd. v. Seajet Indus. Inc., 84 F.3d 622, 624-25 (2d Cir.1996); Commercial Union Ins. Co. v. International Flavors & Fragrances, Inc., 822 F.2d 267, 271 (2d Cir.1987). . The record demonstrates that Hartford did not \"monitor\" the Press litigation. In the same month that Sybron notified Hartford of the Press litigation, Hartford was sent a copy of a letter from Security to Sybron that requested Sybron to notify Hartford. Thus, Hartford received the first correspondence from Security some 21 months after the Press claims were initiated. Subsequent to this initial letter, Hartford received copies of other materials related to the Press suits. . An insurer has a statutory duty to disclaim liability for injuries that arise out of accidents that occur within the State of New York. See N.Y. Ins. Law § 3420(d); American Home Assurance Co., 984 F.2d at 79. Dr. Press was injured in Pennsylvania. . Under New York law, an insurer may be es-topped from asserting late notice if it delayed its disclaimer for an unreasonable amount of time and if the insured was prejudiced as a result. See American Home Assurance Co., 984 F.2d at 79. In this case, Sybron was not prejudiced by Hartford's failure to deny coverage. . Estoppel thus is to be" }, { "docid": "9783321", "title": "", "text": "Furthermore, First Investors asserts that Liberty Mutual’s Local Rule 3(g) statement is deficient as a matter of law. For each point, Liberty Mutual responds either “Admitted” or “Denied”. Due to the volume and sufficiency of the submissions as a whole and the unfair prejudice that would be inflicted upon Liberty Mutual due to its counsel’s deficiencies, the material facts set forth in First Investors’ Local Rule 3(g) statement are not deemed admitted. II. Liberty Mutual contends that First Investors failed to comply with the notice provi sions of the CGL and Umbrella policies and, thus, Liberty Mutual is relieved of its duty to defend and to indemnify the Barbosa, Corley, Hanley, Parsons, Quinn, Rayhill, Tarver, and Wilson claims. (Def. Mem. of Law in Opp’n at 49-50.) “The governing principle is that an insured must give notice to his or her insurer within the time limit provided in the insurance policy or within a reasonable time under all the circumstances and that, absent a valid excuse, failure to satisfy the notice requirement vitiates coverage.” Eveready Ins. Co. v. Saunders, 149 A.D.2d 456, 539 N.Y.S.2d 957, 957 (2d Dep’t 1989). First Investors does not proffer a valid excuse for its tardiness in the documents submitted to this Court and the time periods detailed by Liberty Mutual regarding notice far exceed what a reasonable person could determine is “practicable” under Section IV, Paragraph 2 of the insurance policies. See State of N.Y. v. Blank, 27 F.3d 783, 795 (2d Cir.1994) (noting that New York courts have held that reasonableness of time for notice may be determined as question of law). Liberty Mutual’s submission on this point, however, trips before crossing the finish line. “[A]n insurer who fails to timely disclaim liability or deny coverage ‘as soon as is reasonably possible,’ when required by Insurance Law § 3420(d), waives its affirmative defense of late notice.” Matter of Allcity Ins. Co. and Jimenez, 78 N.Y.2d 1054, 576 N.Y.S.2d 87, 88, 581 N.E.2d 1342, 1343 (1991). For example, in the Wilson claim, First Investors initially became aware of the claim in November of 1990, Liberty Mutual" }, { "docid": "23016510", "title": "", "text": "the issues of waiver and estoppel. Aetna, for its part, contends that the District Court erred in granting Burt summary judgment on the issue of Aetna’s duty to defend the bodily injury actions, because (a) section 3420(d) is inapplicable since the injuries did not result from an “accident” within the meaning of that statute; and (b) even if section 3420(d) is applicable, (i) it was not required to disclaim because it claims that no insurance policy exists, (ii) its prompt disclaimers on grounds other than late notice were sufficient to preserve its right to later disclaim on the ground of late notice, and (iii) its disclaimers on the basis of late notice were timely under the circumstances. Waiver and estoppel are distinct in New York insurance law. Waiver is the “voluntary and intentional relinquishment of a known might.” Albert J. Schiff Assocs., Inc. v. Flack, 51 N.Y.2d 692, 435 N.Y.S.2d 972, 975, 417 N.E.2d 84 (1980). Courts may find waiver where, for example, an insurance company disclaims coverage for failure to satisfy one Condition precedent but neglects to assert other such conditions. Id. Estoppel, on the other hand, arises where an insurer acts in a manner inconsistent with a lack of coverage, and the insured reasonably relies on those actions to its detriment. See id. Thus, estoppel requires a showing of prejudice to the insured. See id. Courts may hold that an insurer is estopped from asserting a defense of lack of coverage where, for example, an insurer, though not in fact obligated to provide coverage, defends the case without asserting any policy defenses, and as a consequence the insured reasonably suffers the detriment of losing control over its defense. See id. The cases upon which the District Court relied in holding that Burt was required to establish prejudice all involved an unreasonable delay in disclaiming coverage—ie., an action inconsistent with a lack of coverage—rather than a disclaimer based upon an alleged failure to satisfy one condition precedent or based upon a claim of non-coverage followed by a later disclaimer based upon an alleged failure to satisfy another such condition." }, { "docid": "11771483", "title": "", "text": "other defenses, we note, see supra note 6, that Sybron’s first defense, that Hartford was not prejudiced by the delay, is no defense at all. As we previously stated, it is well settled that lack of prejudice is not a valid defense in New York to untimely notice. See Unigard Sec. Ins. Co., 584 N.Y.S.2d 290, 594 N.E.2d at 573; Security Mut. Ins. Co., 340 N.Y.S.2d at 904-05, 293 N.E.2d at 78; Olin Corp., 966 F.2d at 723; Utica Mut. Ins. Co., 748 F.2d at 121. Lack of prejudice is no defense regardless of whether the insured breaches a notice-of-occurrenee or notice-of-claim provision. AXA Marine & Aviation Ins. (UK) Ltd., 84 F.3d at 625-28. In this case, Sybron delayed for 22 months before providing Hartford with notice. That inexcusable length of time is unreasonable as a matter of law, and that Hartford suffered no prejudice as a result of the delay is irrelevant. 1. Sybron next submits that Hartford waived its right to assert untimely notice. In support of this contention, Sybron points to the following facts: (1) Hartford failed to disclaim coverage because of late notice when notified of the Press claims; (2) prior to notice of the claims, Hartford had been “monitoring” the cases through Security; and (3) Hartford negotiated and signed the Settlement Agreement in which it agreed to pay $500,000 toward the Press settlement without ever mentioning its intent to assert late notice. “In the insurance context, New York law defines waiver as ‘a voluntary and intentional relinquishment of a known right.’ ” New York v. AMRO Realty Corp., 936 F.2d 1420, 1431 (2d Cir.1991) (quoting Albert J. Schiff Assocs., Inc. v. Flack, 51 N.Y.2d 692, 435 N.Y.S.2d 972, 974-75, 417 N.E.2d 84, 87 (1980)). Waiver can be proved by direct or circumstantial evidence that shows that the insurer, through its words or acts, intended to abandon the defense. Id. Applying these principles to this case, we hold that none of the evidence on which Sybron relies is sufficient, as a matter of law, to support a waiver. Hartford’s lack of response to Sybron’s notice is" }, { "docid": "6154202", "title": "", "text": "absent a showing of prejudice to the insurer.” Id. § 402[b][2], at 90. In addition to the cases of Lauritano v. American Fidelity Fire Ins. Co., 3 A.D.2d 564, 162 N.Y.S.2d 553 (1957), aff'd, 4 N.Y.2d 1028, 177 N.Y.S.2d 530, 152 N.E.2d 546 (1958), Home Indem. Co. v. State Farm Mut. Auto. Ins. Co., 64 A.D.2d 212, 409 N.Y.S.2d 673 (1978), and Brooklyn Union Gas Co. v. North River Ins. Co., 124 A.D.2d 621, 508 N.Y.S.2d 26 (1986), cited by my colleague, there are other lower court decisions in New York that inject the requirement of prejudice into carriers’ defenses against coverage in cases of this nature. See, e.g., Aetna Ins. Co. v. Millard, 25 A.D.2d 341, 343-44, 269 N.Y.S.2d 588 (1966); Cohen v. East Coast Ins. Co., 54 Misc.2d 813, 815, 283 N.Y.S.2d 371 (1967); Zappia v. Allstate Ins. Co., 28 Misc.2d 723, 724, 212 N.Y.S.2d 698 (1961). These eases hold in substance that where, despite an insured’s failure to turn over process, the insured’s carrier is given an opportunity to defend, the carrier may not disclaim because of such failure. The differences between the “no prejudice” adherents and the requirement-of-prejudice adherents are highlighted in Lauritano, supra. The insurance policy in that case contained a notice of claim provision almost identical with the one at issue herein. There, the majority in the Appellate Division distinguished between notices of occurrence or accident, on the one hand, and notices of claim or suit, on the other, stating with regard to the latter that “[i]t would be a rare occasion indeed when the carrier could not be placed in just as good a position as it would have enjoyed had the insured complied fully with his obligations.” 3 A.D.2d at 571, 162 N.Y.S.2d 553. The dissent in Lauritano put this holding squarely in issue when it said: The provisions of the policy are unambiguous, and state that no action is maintainable “unless, as a condition precedent thereto, the insured shall have fully complied with all the terms of the policy.” Id. at 581, 162 N.Y.S.2d 553. The dissent followed this statement with" }, { "docid": "17597536", "title": "", "text": "with respect to the controversy).” 584 F.2d at 1311. This analysis requires more than a “mere counting of contacts.” Cipolla, 267 A.2d at 856. “Rather, we must weigh the contacts on a qualitative scale according to their relation to the policies and interests underlying the [particular] issue.” Shields v. Consol. Rail Corp., 810 F.2d 397, 400 (3d Cir.1987). C. Applying the Griffith Choice-of-Law Analysis As a threshold matter, we note that the TIG-DKM policy did not contain an express choice-of-law provision. However, the policy was entitled “New York Coverage Plus Umbrella Liability Policy,” and it contained a New York cancellation endorsement and a New York state law conformance clause governing “operations in the State of New York.” Contrary to TIG’s assertions, we do not think these references to New York amount to an implicit agreement between TIG and DKM that New York law should govern the late notice issue. In Assicurazioni Generali S.P.A. v. Clover, 195 F.3d 161 (3d Cir.1999), we concluded that “the parties at least implicitly and perhaps even explicitly” selected Indiana law to govern the policy because there were “repeated references” to Indiana law in the UIM endorsement. Id. at 165. In Clover, however, the arbitration clause at issue was contained in the state-specific endorsement. See id. at 164 (“[I]t is the Indiana UIM endorsement itself[,] not merely the policy, which contains the arbitration clause whose scope is at issue.”). By contrast, the notice requirement at issue in this case is not contained in any of the provisions that reference New York law. 1. Identifying and Classifying the Conflict Applying the above framework, we must first determine whether there is an “actual” conflict between the New York and Pennsylvania late notice laws. Pennsylvania requires an insurer to establish it was prejudiced by an insured’s late notice before it can disclaim coverage on those grounds (the “prejudice rule”). Brakeman, 371 A.2d at 198. Under New York law, “absent a valid excuse” for late notice, an insured’s “failure to satisfy the notice requirement vitiates the policy” regardless of whether the insurer can show prejudice (the “no prejudice rule”). Security" }, { "docid": "6154184", "title": "", "text": "prejudiced them, they would be legally justified in terminating their duty to defend and indemnify. Unigard Security Ins. Co. v. North River Ins. Co., 79 N.Y.2d 576, 581, 584 N.Y.S.2d 290, 292, 594 N.E.2d 571, 573 (1992); Restoration Realty Corp. v. Robero, 58 N.Y.2d 1089, 1091, 462 N.Y.S.2d 811, 812, 449 N.E.2d 705, 705-06 (1983); Toyomenka Pacific Petroleum v. Hess Oil V.I. Corp., 771 F.Supp. 63, 68 (S.D.N.Y.1991). However, Underwriters need not demonstrate prejudice to justify terminating their obligations under the policy. The New York Court of Appeals has adopted the no prejudice rule in cases involving a failure to give notice of occurrence and we believe that that court would apply the same rule to a case like this one, involving the failure to give notice of claim. See Travelers Ins. Co. v. 633 Third Assocs., 14 F.3d 114, 119 (2d Cir.1994) (stating that “[wjhere the substantive law of the forum state is uncertain or ambiguous, the job of the federal courts is carefully to predict how the highest court of the forum state would resolve the uncertainty or ambiguity.” (citation omitted)). C.New York’s “No Prejudice” Rule Under the no prejudice rule, “the notice provision for á primary insurer operates as a condition precedent and ... the insurer need not show prejudice to rely on the defense of late notice.” Unigard Security, 79 N.Y.2d at 581, 584 N.Y.S.2d at 292, 594 N.E.2d at 573 (citations omitted). Thus the no prejudice rule is an exception to two principles of the common law of contracts: (1) that ordinarily one seeking to escape the obligation to perform under a contract must demonstrate a material breach or prejudice ...; and (2) that a contractual duty ordinarily will not be construed as a condition precedent absent clear language showing that the parties intended to make it a condition. Id. (citations omitted). The New York Court of Appeals has characterized the no prejudice rule as a “presumption of prejudice.” Unigard Security, 79 N.Y.2d at 584, 584 N.Y.S.2d at 294, 594 N.E.2d at 575 (stating, in a late notice of occurrence case, that a “reinsurer must" }, { "docid": "6493858", "title": "", "text": "month delay was unreasonable); Power Auth. v. Westinghouse Electric Corp., 117 A.D.2d 336, 342, 502 N.Y.S.2d 420, 423 (1st Dept.1986) (53 days); Gov’t Employees Ins. Co. v. Elman, 40 A.D.2d 994, 338 N.Y.S.2d 666, 667 (2d Dept.1972) (29 days)); see also American Home Assur. Co. v. Republic Ins. Co., 984 F.2d 76, 78 (2d Cir.1993) (upholding a finding of 36 days as unreasonable). Here, the delay of over two years was unreasonable as a matter of law. Stonewall therefore failed to satisfy its obligation under the reinsurance contract to provide promptly to Constitution a definitive statement of loss. S. Prejudice Constitution need not demonstrate prejudice as a result of Stonewalls failure to provide a definitive statement of loss. Under New York law, an insured’s failure to comply with a notice provision serves as a complete defense regardless of prejudice to the insurer. See Olin Corp. v. Ins. Co. of North America, 966 F.2d 718, 722-23 (2d Cir.1992); see also Security Mutual Ins. Co. v. Acker-Fitzsimons Corp., 31 N.Y.2d 436, 440, 340 N.Y.S.2d 902, 293 N.E.2d 76 (1972). However, the New York Court of Appeals has held that the presumption is reversed for reinsurers; they generally must demonstrate that late notice was prejudicial in order to avoid obligations under a reinsurance contract. See Unigard Security Ins. Co. v. North River Ins. Co., 79 N.Y.2d 576, 583, 584 N.Y.S.2d 290, 293, 594 N.E.2d 571, 574 (1992). While the Unigard court concludes that the insurance “no prejudice” rule does not apply to a failure to comply with the prompt notice requirement in a contract of reinsurance, the decision is of limited scope: “All we hold here is that the reinsurer must demonstrate how it was prejudicial and may not rely on the presumption of prejudice that applies in the late notice disputes between primary insurers and their insureds.” Id. at 584, 584 N.Y.S.2d at 294, 594 N.E.2d at 575 (emphasis added). We address this question, it must be noted, under the specific prompt notice provision contained in clause C of the North River certificate. There is nothing in this provision or elsewhere in" }, { "docid": "23016517", "title": "", "text": "N.Y.S.2d 858, 861, 422 N.E.2d 518 (1981). Indeed, an insurer has a duty to defend even if “facts outside the four corners of those pleadings indicate that the claim may be meritless or not covered.” Fitzpatrick v. American Honda Motor Co., 78 N.Y.2d 61, 63, 571 N.Y.S.2d 672, 672, 575 N.E.2d 90 (1991). An insurer’s duty to defend, however, ends if “it establishes as a matter of law that there is no possible factual or legal basis on which it might eventually be obligated to indemnify its insured under any policy provision.” Allstate Ins. Co. v. Zuk, 78 N.Y.2d 41, 45, 571 N.Y.S.2d 429, 431, 574 N.E.2d 1035 (1991). Accordingly, New York courts have, in appropriate cases, considered extrinsic evidence where that evidence may conclusively establish that an insurer faces no possible liability. See Avondale Indus., Inc. v. Travelers Indem. Co., 774 F.Supp. 1416, 1424-25 (S.D.N.Y. 1991) (collecting cases). In this case, the District Court correctly determined that the evidence presented by Aetna as to the claims at issue leaves no doubt that it has no possible liability.' See Burt Rigid, 126 F.Supp.2d at 634-41 (analyzing the evidence with respect to each claim). Accordingly, the District Court did not abuse its discretion or otherwise err in granting summary judgment to Aetna as to these claims. III. ConClusion In sum, we hold that: (1) even if an insured is required to prove the existence and terms of a lost insurance policy by clear-and-convincing evidence, Burt is nevertheless entitled to summary judgment on the issue of the existence and terms of the policies in this ease because it has adduced sufficient unopposed evidence to meet that standard; (2) Aetna waived its late notice defenses by failing to include them among a series of affirmative defenses in its Answer, which contained its disclaimers of coverage based on other provisions of the policies; and (3) the District Court did not abuse its discretion or otherwise err in granting summary judgment to Aetna as to certain claims which the undisputed evidence showed were outside the coverage of the policies at issue. Accordingly, we reverse the" }, { "docid": "17597526", "title": "", "text": "TIG was not timely notified of the underlying accident and/or lawsuit, and thus DKM, the insured parent of CCC, was not entitled to coverage, absent some showing that TIG was estopped from disclaiming coverage based on its delay in doing so. In denying Hammersmith’s Motion for Partial Summary Judgment on the ground that TIG failed to disclaim coverage as soon as reasonably possible, the District Court held that TIG’s investigation of the facts and disclaimer were reasonable as a matter of law. III. Choice of Law The parties disagree as to which state law applies in this case. Hammers-mith urges Pennsylvania law, which requires an insurer to prove that the notice provision contained in the insurance contract was breached, and it suffered prejudice as a result. Brakeman v. Potomac Ins. Co., 472 Pa. 66, 371 A.2d 193 (1977). TIG maintains that the District Court correctly applied New York law, which does not require an insurer to establish prejudice in order to disclaim coverage based on late notice. Security Mut. Ins. Co. of N.Y. v. Acker-Fitzsimons Corp., 31 N.Y.2d 436, 340 N.Y.S.2d 902, 293 N.E.2d 76, 78 (1972). We exercise plenary review over the District Court’s choice of law determination. Berg Chilling Sys., Inc. v. Hull Corp., 435 F.3d 455, 462 (3d Cir.2006). Because this is a diversity case, we apply the choice-of law-rules of the forum state, Pennsylvania. Klaxon v. Stentor Electric Mfg. Co., 313 U.S. 487, 61 S.Ct. 1020, 85 L.Ed. 1477 (1941). In this case, the District Judge erred in concluding it was “well-settled” that “[u]nder Pennsylvania choice of law rules, an insurance contract is governed by the law of the state in which the contract was made.” App. 13a. Although both Pennsylvania and federal courts have dealt with this issue in a rather inconsistent fashion, we think it is now clear that Pennsylvania applies the more flexible, “interest/contacts” methodology to contract choice-of-law questions. A. Abandonment of Lex Locus Con-tractus in Pennsylvania Choice-of-Law Jurisprudence Prior to 1964, Pennsylvania courts uniformly applied the law of the place of contract (“lex loci contractus”) or injury (“lex loci delicti”) in contract" } ]

[ { "docid": "8884795", "title": "", "text": "WILKINSON, Circuit Judge: The question before us is whether a United States Marine may remove to federal court, pursuant to 28 U.S.C. § 1442(a)(1), his state criminal prosecution arising out of an accident which occurred while he was driving in a military convoy. .We agree with North Carolina’s contention that Ivory’s ground for removal was insufficient under Mesa v. California, 489 U.S. 121, 109 S.Ct. 959, 103 L.Ed.2d 99 (1989), because he did not aver a federal defense. We reverse the judgment of the district court and direct it to remand this case for further proceedings in the North Carolina courts. I. The state charges against Lemans Ivory, a United States Marine, resulted from an accident on August 16, 1988, while Ivory was driving a truck in a military convoy. The convoy was returning from Cherry Point to Camp LeJeune, North Carolina, traveling west on four-lane Highway 24. It proceeded to make a left hand turn across the eastbound lanes of the highway onto Highway 172. The first twenty trucks of the convoy made the turn without incident. Ivory approached the intersection traveling at about five to seven miles per hour, and accelerated through it without stopping. His truck collided with a car in the inside, eastbound lane of Highway 24 causing its driver, Jason Pickett, to be fatally injured. On August 17, 1988, Ivory was charged with unintentional death by motor vehicle and failure to yield the right of way in violation of N.C.Gen.Stat. §§ 20-141.4 and 20-155, respectively. The second charge was subsequently dismissed. Ivory then petitioned the Eastern District of North Carolina for removal pursuant to 28 U.S.C. § 1442(a)(1). The state did not file a motion to remand, and the removal petition was granted on October 11, 1988. Ivory then moved to dismiss the charge on the ground that the state prosecution violated the Supremacy Clause. Following two evidentiary hearings, the United States magistrate concluded that Ivory was entitled to immunity from state prosecution because he was an agent of the federal government acting under the laws of the United States and because he believed that" } ]

[ { "docid": "8275012", "title": "", "text": "OPINION and ORDER LARKINS, District Judge: This cause comes before the Court as a civil action against the United States, filed pursuant to provisions of the Federal Tort Claims Act, arising out of a collision, which occurred in the Eastern District of North Carolina, between an automobile owned and operated by a Marine sergeant, and plaintiff’s bridge. Plaintiff Highway Commission, in its complaint, asserts that George Robert McBride, a member of the United States Marine Corps, was negligent in the operation of his automobile; that such negligence resulted in a collision with and damage to plaintiff’s bridge; that at the time and place of such negligence, McBride was acting within the course and scope of his employment and in the performance of his duties; and that therefore, his employer, the United States, is liable for the damage, under the doctrine of respondeat superior. Defendant, United States, has moved, pursuant to Rule 56 of the Federal Rules of Civil Procedure, for summary judgment, conceding, for the purpose of its motion, negligence in the operation of the automobile at the time and place alleged in the complaint. Damages having been stipulated, one question is presented: whether Sergeant McBride was acting within the scope of his employment at the time that his automobile collided with plaintiff’s bridge. Absent a conclusion that he was acting within the scope of his employment, the United States cannot, as a matter of law, be held liable in this action. The significant facts, which are not in dispute, are as follows. George Robert McBride, a Master Sergeant in the United States Marine Corps., was stationed at Camp Lejeune, North Carolina, when at 8:00 A.M. on May 20, 1965, he received orders effecting for him as of that time and date, a permanent change of station and directing him to report, not later than 12:00 midnight, June 1, 1965, to his new permanent duty station at Portland, Maine. The orders authorized four days proceed time, five days delay en route, three days travel time, and provided that the delay time, less proceed and travel time, would be chargeable as" }, { "docid": "11631279", "title": "", "text": "PREYER, District Judge. On January 21,1961, a privately owned motor vehicle in which plaintiff was a passenger collided with an Army ambulance being operated in line of duty at an intersection on the military reservation at Fort Bragg, North Carolina. As a result of this collision, this action was instituted by the plaintiff under the provisions of the Federal Tort Claims Act against the United States of America and Joseph M. Turner, who was the operator of the vehicle in which plaintiff was a passenger. At the time of the collision the plaintiff was a Second Lieutenant in the United States Army being stationed and residing on the military reservation at Fort Bragg, North Carolina. The plaintiff was on active duty and subject to call for military duty at any time although neither the plaintiff nor the defendant Turner were undertaking any military mission at the time of the collision. The ease is before the court on defendant Turner’s Motion to Dismiss and the Government’s Motion for Summary Judgment. MOTION TO DISMISS The defendant Turner moves to dismiss on the grounds that, (1) the complaint fails to state a claim against Turner; (2) that the court lacks jurisdiction over the subject matter and over the parties; (3) that the venue is improperly laid. We think the motion should be granted on the third ground — improper venue. The plaintiff seeks to invoke the jurisdiction of this court under the authority of 28 U.S.C. § 1402(b) which provides: “(b) Any civil action on a tort claim against the United States under subsection (b) of section 1346 of this title may be prosecuted only in the judicial district where the plaintiff resides or wherein the act or omission complained of occurred.” The evidence indicates that the action occurred in Cumberland County which is outside the Middle District and in the Eastern District of North Carolina. The only way, therefore, the court has jurisdiction is if plaintiff was a “resident” of Moore County in the Middle District of North Carolina, as he contends. The defendant Turner denies such residence. From the affidavits submitted" }, { "docid": "13247139", "title": "", "text": "PHILLIPS, Circuit Judge: In this diversity action, Joseph E. Kelly appeals the district court’s dismissal of his state-law tort claim against Guyon General Piping, Inc. (Guyon). The district court held that Kelly’s tort action was jurisdic-tionally barred because his exclusive remedy lay in an action for workers’ compensation. We affirm, although for different reasons than those relied upon by the district court. I In September 1983 Guyon, a pipe distributor with a regional plant and office in Chester, Virginia, contacted Thurston Motor Lines (Thurston) to request that Thur-ston deliver some of its pipes to a General Electric plant in South Carolina. Thurston is a North Carolina firm; Guyon called Thurston’s Richmond, Virginia, terminal. Thurston in turn contacted Dan Johnson, an independent trucker out of Elkin, North Carolina, to furnish a truck and driver to haul the load. Kelly was employed by Johnson and took the job. Driving John son’s truck, he picked up the pipes, which had previously been loaded onto a trailer by Guyon’s employees, at Thurston’s Richmond yard. He delivered the pipe to General Electric on September 26, 1983. Upon delivery Kelly removed the straps holding the pipe onto the trailer to ready the load for removal by General Electric employees. Shortly thereafter he was injured when a number of pipes fell from the truck and hit him. Under an existing agreement between Johnson and Thurston, Thurston provided workers’ compensation coverage for any Johnson employees injured while making a delivery for Thurston. Kelly claimed and was awarded workers’ compensation benefits under North Carolina law. Kelly brought the present suit in Virginia federal district court against Guyon, claiming that Guyon was negligent in loading and securing the pipes onto the trailer. Guyon filed a motion to dismiss, claiming that Kelly’s suit was barred under workers’ compensation law because Kelly was performing work of the same trade, business, or occupation as Guyon and therefore Guyon was Kelly’s statutory employer. Deciding that Virginia would apply South Carolina law in adjudicating his claim because South Carolina was the site of the accident, the district court found that at the time of his" }, { "docid": "2162060", "title": "", "text": "he was constitutionally entitled to direct Brugal to pull his vehicle over to the shoulder of the road. Brugal’s subsequent consent to allow Trooper Lawson to search the vehicle was voluntary, therefore, the evidence seized during the search should not have been suppressed by the district court. Accordingly, the district court’s order granting the defendants’ motions to suppress is vacated and the case is remanded for further proceedings consistent with this opinion. VACATED AND REMANDED. . Brugal's vehicle was the fifth vehicle stopped at the checkpoint, which was established at 3:00 a.m. on October 31, 1997. The driver of the first vehicle, who was driving from Florida to Orangeburg, South Carolina, had an invalid driver’s license. The driver told Trooper Lawson he exited at Exit 22 because \"he was nervous about not having a driver's license.” The driver of the vehicle was issued a ticket for having an invalid driver's license. The vehicle was searched, but no weapons or contraband were found. The driver of the second vehicle initially did not stop at the checkpoint when the officers motioned for her to stop. She was a Ridgeland, South Carolina resident who had a valid driver's license, but no vehicle registration. The vehicle was searched, but no weapons or contraband were found. The third and fourth vehicles were driven by residents of Charleston, South Carolina. They were looking for Exit 33, the exit for Highway 17 north to Charleston, but Exit 22 is for Highway 17 south. These drivers had valid driver’s licenses and vehicle registrations. . Brugal rented the vehicle in Miami at 1:36 p.m. on October 30, 1997. Therefore, between the time he rented the vehicle and the time he exited Exit 22, approximately fourteen hours had elapsed. The distance between Miami and Exit 22 is approximately 515 miles. . In its opinion, the district court found that Trooper Lawson instructed Brugal to pull his vehicle over to the shoulder of the road because he had “a hunch that these Defendants were 3 'mules' transporting drugs.” . The defendants concede that the initial stop effectuated by the checkpoint was" }, { "docid": "20056276", "title": "", "text": "state court against an association of private insurers acting as an agent through which the Export-Import Bank of the United States insured plaintiff’s political risks. Although the Court of Appeals did not rule on the defendant’s attempt to remove under section 1442(a)(1), it noted that it is not at all clear that a mere agency-principal relationship ... would be sufficient to support jurisdiction____ After all, the purpose of § 1442 removal is to protect federal officials from unfriendly state forums, to allow the official to raise defenses (such as immunity) arising out of his official duties, and to insure an impartial setting “free from local interests or prejudice.” ... It is doubtful whether removal here would serve any of these purposes. Id. at 734 n. 13 (citation omitted). The majority and dissenting opinions in North Carolina v. Ivory, 906 F.2d 999 (4th Cir.1990), disagree about the facts of the case and therefore as to where on the spectrum the case belongs. North Carolina brought criminal charges against a United States Marine driving in a military convoy whose truck collided with a civilian vehicle, killing the civilian driver. The majority thought removal was not warranted in part because the driver’s allegedly actionable conduct was not taken pursuant to specific orders. Id. at 1003 (finding absence of any order to driver to keep his truck close to others in convoy). The dissent thought the facts warranted the opposite conclusion. Id. at 1007 (Phillips, J., dissenting) (finding that defendant was acting under direct orders). Implicit in this disagreement was an agreement on the law ' of section 1442(a)(1): a person is only “acting under” a federal officer when under the direct and specific control of that officer. Texas v. National Bank of Commerce, 290 F.2d 229 (5th Cir.), cert. denied, 368 U.S. 832, 82 S.Ct. 55, 7 L.Ed.2d 35 (1961), concerned removal of suits in which Texas brought a quo warranto action against private banks serving United States military installations. The Court of Appeals for the Fifth Circuit found removal appropriate in part because the banks operated only through the exercise of powers" }, { "docid": "4296933", "title": "", "text": "OPINION OF THE COURT GIBBONS, Circuit Judge: Woodrow and Betty Frey appeal from a summary judgment in favor of the defendants in their action against Gerald Dean Woodard, Joe McCracken, and the United States seeking compensation for personal injuries the Freys incurred in an automobile accident. The Freys, pedestrians, were struck by a vehicle driven by Woodard, a civilian, after crossing in front of a vehicle owned by the United States driven by McCracken, a United States Marine on active duty. The Freys alleged in their complaint that both Woodard and McCracken were negligent. The district court held that on the undisputed facts, under the law of North Carolina where the accident occurred, neither could be found to be negligent. Since under the Federal Tort Claims Act the liability of the United States for torts of its agents is determined by the law of the state in which the accident occurred, the court entered judgment in favor of all defendants. 28 U.S.C. § 2671 et seq. (1982). See 565 F.Supp. 386. The Freys contend that the court erred in holding that under North Carolina law McCracken could not be found negligent, and thus that the judgment in favor of the United States must be reversed. We reverse and remand for trial. I. The Undisputed Facts for Purpose of Summary Judgment On April 21, 1977, Mr. and Mrs. Frey attempted unsuccessfully, in Jacksonville, North Carolina, to walk across U.S. 17, a six lane north-south highway. Proceeding from west to east at a point south of a traffic signal, they safely crossed three lanes of southbound traffic to a center median divider. When they arrived at the median divider northbound traffic was in the process of stopping in response to a red light. The signal at the intersection, however, permitted traffic in the easternmost northbound lane to proceed to make a right hand turn. The Freys crossed the westerly northbound lane closest to the median divider, walking between stopped cars in that lane. In the center northbound lane they encountered the Marine Corps truck driven by McCracken. He motioned to them, and" }, { "docid": "23215049", "title": "", "text": "Vacated and remanded with instructions by published opinion. Senior Judge HAMILTON wrote the opinion, in which Judge LUTTIG joined. Judge GREGORY wrote a separate opinion concurring in part and dissenting in part. HAMILTON, Senior Circuit Judge. The United States appeals from a district court order granting Ronald Cortez Foreman’s motion to suppress evidence seized following the search of his Mercury Moutaineer on U.S. Route 13 (Route 13) in Northhampton County, Virginia on June 5, 2002. For the reasons stated below, we vacate the district court’s order and remand the case to the district court with instructions to enter an order denying Foreman’s motion to suppress. I A At approximately 7:00 a.m. on June 5, 2002, Virginia State Police Trooper C.S. Wade (Trooper Wade) was working a narcotics interdiction assignment on the southbound side of Route 13 in North-hampton County, Virginia, just north of the Chesapeake Bay Bridge. At that time, Trooper Wade observed Ronald Cortez Foreman (Foreman) in a “tense posture” driving a 1997 Mercury Mountaineer, holding the steering wheel with both hands and staring straight ahead as he passed Trooper Wade on Route 13. After following Foreman in his patrol car, Trooper Wade observed two traffic infractions: (1) excessive speed and (2) several air fresheners, hanging from the rearview mirror, obstructing the driver’s windshield view, each in violation of Virginia state law. In response to Trooper Wade’s activation of his emergency lights, Foreman drove his vehicle partially off the road and came to a stop. Immediately upon approaching Foreman, Trooper Wade observed Foreman’s pulse beating through his shirt, his hands visibly shaking, and the carotid artery on his neck throbbing more noticeably than the “thousands of people” that Trooper Wade had stopped in the past. (J.A. 32). Trooper Wade observed a fold of currency in the center console of Foreman’s vehicle, but did not see any luggage. Foreman accompanied Trooper Wade to his patrol car and sat in the passenger seat while Trooper Wade conducted a driver’s license check. While Trooper Wade was waiting for the results of the driver’s license check, Trooper R.M. Harcourt, Jr. (Trooper Harcourt) arrived" }, { "docid": "21180091", "title": "", "text": "her husband), David Boatman, were proceeding in a westerly direction on Dorchester Avenue toward the Meeting Street Road intersection. Mr. McClure was driving his 1956 Oldsmobile and Mrs. McClure was riding beside him. Carole was riding in the rear seat behind her father and David was beside her to her right. U. S. Highway No. 52-A is a main thoroughfare between Charleston and Columbia, South Carolina, and, at its intersection with Dorchester Avenue, is divided into two lanes, one for northbound and one for southbound traffic. Approximately over the center of the intersection a traffic signal device was suspended. It is undisputed that, at the time of the accident and for a time prior thereto, the lights facing the traffic on Dorchester Avenue were not operating and a traveler proceeding west on Dorchester Avenue would receive no traffic light signal. However, the lights controlling traffic on Meeting Street Road were in operation. The evidence disclosed a dwelling located at the southeast corner of the intersection of the two roadways and that a traveler going north on Meeting Street Road and approaching this intersection would not have a clear view of Dorchester Avenue to his right because of this dwelling house and the growth of trees and shrubbery in the yard. Additionally, Meeting Street Road curves for some distance before its intersection with Dorchester Avenue and a northbound driver, negotiating a curve to his right, cannot see westbound traffic on Dorchester Avenue until that traffic is virtually within the intersection. The intersection is likewise “blind” for westbound traffic on Dorchester Avenue before reaching the intersection. On the morning of the accident, Kelly, the driver of the tractor-trailer, had left Columbia, South Carolina, about five o’clock bound for Charleston, some 100 miles away, to pick up a load of bananas. He arrived in Charleston between 7:30 and 8:00 o’clock, loaded his truck and started the return trip to Columbia, proceeding north on Meeting Street Road. At about 10:30 A.M. he rounded the curve on Meeting Street Road and approached the intersection which has been described. It appears that this district was zoned" }, { "docid": "5869059", "title": "", "text": "hold also that, to the extent there has not been exhaustion, Strader may pursue his claims about the validity of the North Carolina sentence and against the parole board in the district court without further resort to Virginia or North Carolina state courts. We remand for further proceedings. I. Between 1959 and 1964, Strader was convicted of numerous misdemeanor offenses in Virginia. He received jail sentences in only four instances. He was later convicted of second degree murder in North Carolina. In pronouncing sentence, the North Carolina trial judge mentioned Strader’s Virginia criminal record. The North Carolina sentence, imposed March 25, 1969, was for a term of twenty-five to thirty years. Having served more than a fourth of his minimum sentence, Strader is eligible to be considered for parole. 3C N.C.G.S. § 148-58 (1975). On December 23, 1974, Strader filed a petition for a writ of habeas corpus in the United States District Court for the Western District of Virginia. He challenged as unconstitutional nineteen uncounseled misdemeanor convictions secured against him by the State of Virginia, including the four which had resulted in jail sentences, and he moved that the convictions be vacated and an order be entered expunging them from his records. In response to the petition, the Attorney General for the State of Virginia filed a motion to dismiss, stating unequivocally, “petitioner has exhausted his available state remedies.” The district court dismissed the petition, ruling that Strader’s North Carolina imprisonment had no relationship, direct or collateral, to his Virginia misdemeanor convictions, and Strader appealed. We granted a certificate of probable cause to appeal, and perceiving that the Virginia convictions, if invalid, might have an adverse effect on the likelihood that Strader would be granted parole, we remanded the case to the district court (a) directing it to transfer the case to the United States District Court for the Middle District of North Carolina, and (b) directing the latter to defer considering the case on its merits pending exhaustion of available North Carolina remedies or a showing that no effective North Carolina remedies were available. Strader v. Miller, No." }, { "docid": "2687449", "title": "", "text": "of payment for said electric current shall be such as now exist between plaintiff North Carolina Public Service Company and defendant, or as same may hereafter be fixed and determined by the North Carolina Corporation Commission.” Pending appeal from this judgment to the state Supreme Court, plaintiffs moved in the United States District Court to remand the cause to the state court. The motion was refused, and subsequently the District Judge by order enjoined further proceedings in the state court. At the trial the federal court, after refusing plaintiffs’ motion for judgment on the pleadings, heard testimony and decreed that the plaintiffs had no right to require the Southern Power Company to furnish current to the North Carolina Public Service Company for resale to the cities of Greensboro and High Point or to its other customers ; that the North Carolina Public Service Company did have the right to require such service for its motive power in operating its street railway system in Greensboro and High Point; that to prevent the great loss and inconvenience which would result from the sudden stoppage of the service Southern Power Company should continue to furnish the current as theretofore for the period of six months upon terms specified in the decree. Error is assigned in refusing to remand the cause and in enjoining further proceedings in the state court. The District Court of the United States has no original jurisdiction in mandamus, and therefore a mandamus proceeding is not removable. Rosenbaum v. Bauer, 120 U. S. 450, 7 Sup. Ct. 633, 30 L. Ed. 743. In our opinion, however, the complaint stated a case for which injunction, not mandamus, was the proper remedy. The office of mandamus is to compel the performance of a plain and positive duty. It is never granted in anticipation of an omission of duty, but only after actual default. Injunction is the proper remedy for threatened violation of a duty, entailing an injury for which the law gives no adequate compensation. Board of Liquidation v. McComb, 92 U. S. 531, 23 L. Ed. 623; Ex parte Cutting, 94" }, { "docid": "22434003", "title": "", "text": "JAMES DICKSON PHILLIPS, Circuit Judge: In this wrongful death diversity case plaintiff, as executor by Alabama appointment of an Alabama decedent’s estate, timely filed a complaint in the United States District Court for the Western District of North Carolina, then sought leave to amend his complaint to allege his capacity as ancillary administrator by North Carolina appointment made after the statute of limitations had run. The district court denied leave to amend and, on defendant’s motion, dismissed the action for plaintiff’s lack of capacity under North Carolina law. We reverse and remand for further proceedings. I. On October 13, 1974, Dallas D. Hardy, his wife Betty Hardy, and one Toni Sellars died in the crash of a Piper Aircraft on take-off from Ferguson Airport in Swain County, North Carolina. Thereafter personal representatives of the Sellars and Betty Hardy Estates instituted separate wrongful death actions against Dallas Hardy’s estate and Piper Aircraft, as co-defendants, in the state courts of Alabama. A judgment was obtained against both defendants in the Sellars case, and the Betty Hardy case resulted in a settlement. Jimmy P. Davis, appointed executor of the Dallas Hardy estate by an Alabama probate court, commenced this wrongful death action on October 7, 1976, five days prior to the running of the applicable North Carolina two-year statute of limitation, N.C.Gen. Stat. § l-53(4). Defendant’s answer was not filed until some five months later, on March 7, 1977. In this answer defendant moved for dismissal, or, in the alternative, for summary judgment, on grounds that the plaintiff, not having qualified as ancillary administrator of the Hardy estate, lacked the legal capacity to prosecute this North Carolina claim in the federal district courts of North Carolina. Four months later, on July 7, 1977, plaintiff filed a motion to amend his complaint to reflect his capacity as ancillary administrator by virtue of his appointment by a North Carolina court on July 6, 1977. Based upon consideration of the pleadings and the parties’ briefs and arguments, the district court denied plaintiff’s motion to amend the complaint, and granted defendant’s motion to dismiss. In an accompanying" }, { "docid": "4296934", "title": "", "text": "the court erred in holding that under North Carolina law McCracken could not be found negligent, and thus that the judgment in favor of the United States must be reversed. We reverse and remand for trial. I. The Undisputed Facts for Purpose of Summary Judgment On April 21, 1977, Mr. and Mrs. Frey attempted unsuccessfully, in Jacksonville, North Carolina, to walk across U.S. 17, a six lane north-south highway. Proceeding from west to east at a point south of a traffic signal, they safely crossed three lanes of southbound traffic to a center median divider. When they arrived at the median divider northbound traffic was in the process of stopping in response to a red light. The signal at the intersection, however, permitted traffic in the easternmost northbound lane to proceed to make a right hand turn. The Freys crossed the westerly northbound lane closest to the median divider, walking between stopped cars in that lane. In the center northbound lane they encountered the Marine Corps truck driven by McCracken. He motioned to them, and indicated verbally that they could proceed safely in front of that truck. While the Freys were passing between the front of the Marine Corps truck and the vehicle stopped ahead of it, the truck bucked forward. The Freys, fearing that they might be pinned between the truck and the vehicle ahead of it, leaped into the easternmost northbound lane and were struck by Woodard’s car. II. Timeliness of the Claim against the United States The trial court held that the Freys’ application for administrative consideration of their claim was filed within the time permitted by 28 U.S.C. § 2401(b) (1982). The United States urges that both the application and the interpretation of this statute were incorrect, and that the time bar is a separate ground for affirmance. The statute on which the United States relies provides that “[a] tort claim against the United States shall be forever barred unless it is presented in writing to the appropriate Federal agency within two years after such claim accrues . . . .” Id. The parties agree that" }, { "docid": "13591495", "title": "", "text": "of the United States Military — to secure the safety of this nation — can best be achieved if the actions of the military proceed without interference by the individual states. If a member of the armed services faces a state prosecution as a consequence of his carrying out his duties as a member of the military, the federal government has an acute interest in protecting the individual for his acts taken pursuant to properly bestowed federal authority. In such a situation the availability of a removal statute is critical to the Federal Government’s ability to protect its interests and ensure its proper functioning In the case sub judice, Defendant was properly engaged in a military exercise at the time of the accident. Defendant does not, however, present any federal defense to the State prosecution. For example, Defendant does not contend that he was under orders to disobey local traffic laws or that the accident was the result of any order given to him by his superiors. C.f. County of Fergus v. Christopher, 345 F.Supp. 60 (D.Mont.1972) (removal under § 1442(a) proper where defendant, who was charged with operating a vehicle without proper lights, contended that his actions were the result of a direct order to drive the vehicle despite its lack of proper lighting). Neither does Defendant contend that, because of his participation in the military convoy, he was unable to comply with local traffic laws. Because Defendant has not presented any federal defense to his actions, this case does not appear to involve a federal issue which the United States Government has an interest in seeing litigated in the federal courts. Thus, under the reasoning of Mesa, this case does not appear to be the kind of case that Congress intended to have litigated in federal court. See State of North Carolina v. Cisneros, 947 F.2d 1135, 1139 (4th Cir.1991) (for removal under § 1442(a)(1) to be proper, military defendant must show that on-duty vehicular traffic accident “resulted from an exigency or emergency related to his federal duties which dictated or constrained the way in which he was" }, { "docid": "2812481", "title": "", "text": "Vacated and remanded by published opinion. Judge HALL wrote the majority opinion, in which Chief Judge WILKINSON and Judges MURNAGHAN, ERVIN, WILKINS, LUTTIG, WILLIAMS, MICHAEL, and MOTZ joined. Judge WIDENER wrote a separate concurring opinion. Senior Judge PHILLIPS wrote a dissenting opinion in which Judges RUSSELL, NIEMEYER and HAMILTON joined. OPINION K.K. HALL, Circuit Judge: Catherine McNair, administratrix of the estate of Edward Earl McNair, brought an action in state court against Thomas Paul Jones and his employer, Lend Lease, seeking damages for the wrongful death .of her intestate. The action was removed on diversity grounds, and default judgment was entered against Jones. The court ruled that Jones was outside the scope of his employment at the time of the accident and, therefore, McNair had failed to state a claim against the . employer under the doctrine of respondeat superior. Lend Lease’s Rule 12(b)(6) motion to dismiss was granted, and McNair appeals. I On appeal from an order granting a motion to dismiss under Fed.R.Civ.P. 12(b)(6), we accept as true the facts alleged in the complaint. Doe v. Doe, 973 F.2d 237, 238 (4th Cir.1992). These facts are that Thomas Paul Jones was employed by Lend Lease to drive a truck on interstate routes. On May 25,1991, “before dusk,” he stopped his truck on the side of a highway in North Carolina and walked across the highway to the Dry Dock Lounge. While there, “he began to consume alcoholic drinks.” At 11:15 P.M., he left and began to cross the highway “in order to enter the tractor trail er” when he “suddenly darted in front of the motorcycle being operated by Plaintiffs decedent.” The two collided, and McNair and Jones were killed. It was later determined that Jones’ blood alcohol level was .28%, almost three times the legal limit for someone operating a motor vehicle. The court held that Jones had deviated from the scope of his employment when he first stopped his truck or, alternatively, when he embarked on his drinking spree, and, further, that he had not returned to the scope at the time of the accident. II" }, { "docid": "22584628", "title": "", "text": "WINTER, Circuit Judge: Plaintiff, the operator of an automobile in collision with a train at a railroad crossing in Washington County, North Carolina, sued the railroad for personal injuries and property damage. Suit was filed initially in a state court, but removed to a federal court because of diversity of citizenship and the amount in controversy. After removal, defendant, by interrogatories propounded to plaintiff, obtained plaintiff’s version of how the collision occurred. Defendant’s motion for summary judgment followed, and it was granted by the district court on the ground that plaintiff, under North Carolina law, was guilty of contributory negligence as a matter of law, thus barring her recovery. We affirm. The operative facts, as stated by the district court, were: “On August 9, 1965 at about 11:15 A.M., the plaintiff was driving her 1964 Ford “Falcon” automobile along rural paved road no. 1301 about three (3) miles west of Roper, Washington County, North Carolina. The plaintiff was driving her car in a southerly direction when she approached the defendant’s railroad tracks lying east to west across the road. The plaintiff collided at the intersection of the road and the tracks with a train owned by the defendant and operated by its employee who was acting within the course and scope of his employment. * * * “At the scene of the accident,.rural paved road no. 1301 is straight for a considerable distance and runs north to south. It is of asphalt construction. At the time of the accident the crossing was protected by a standard railroad cross-buck sign on the right of way of the defendant, on both sides of the track; and, a standard railroad sign of the North Carolina Highway Commission located on its right of way approximately three hundred and seventy-five (375) feet northwardly from the nearest rail. In addition, there was a railroad sign painted in the southbound lane of the road approximately three hundred and fifty (350) feet from the nearest rail. “It had been raining on the day in question but it was clear and the road was dry when the accident occurred." }, { "docid": "2612812", "title": "", "text": "Affirmed by published opinion. Judge WILLIAMS wrote the opinion, in which Judge MOTZ and Judge KING joined. WILLIAMS, Circuit Judge. Appellants Kenneth Scott Nivens, Glen Lance Maners, and Terri Lynn Stork previously brought an action in the United States District Court for the Western District of North Carolina, seeking to enjoin a pending state criminal drug prosecution against them. Appellants contended that because they had already paid North Carolina’s drug tax, their prosecution would violate the Fifth Amendment’s Double Jeopardy Clause, made applicable to the states via the Fourteenth Amendment. In Nivens v. Gilchrist, 319 F.3d 151 (4th Cir. 2003) (Nivens I), we held the district court properly abstained from exercising jurisdiction over Appellants’ case based on Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971), in part because Appellants had failed to take advantage of pretrial avenues to raise their double jeopardy defense in their state prosecution. After our decision in Nivens I, Appellants raised their double jeopardy defense in state court, where it was denied on the merits. Appellants then returned to federal court, asking the district court to declare the North Carolina drug tax a criminal penalty, enjoin their pending state criminal trial, and award damages for pain and suffering. The district court again abstained from exercising jurisdiction over Appellants’ claims and dismissed the suit with prejudice. Because the district court properly abstained under Younger, we affirm the dismissal of Appellants’ claims for declaratory and injunctive relief. We also affirm the dismissal of Appellants’ damages claims against Appellee Peter S. Gilchrist, III, the District Attorney for the Twenty-Sixth Prosecutorial District of North Carolina, because Gilchrist is entitled to immunity in both his official and individual capacities. I. The relevant facts of this appeal are straightforward and not in dispute. On July 8, 2000, Appellants were arrested for violations of the North Carolina Unauthorized Substances Act because of their alleged possession and sale of the drug commonly known as ecstasy. Shortly thereafter, the North Carolina Department of Revenue issued notices of tax assessments for possession of the drugs pursuant to North Carolina’s Unauthorized Substances" }, { "docid": "8275013", "title": "", "text": "automobile at the time and place alleged in the complaint. Damages having been stipulated, one question is presented: whether Sergeant McBride was acting within the scope of his employment at the time that his automobile collided with plaintiff’s bridge. Absent a conclusion that he was acting within the scope of his employment, the United States cannot, as a matter of law, be held liable in this action. The significant facts, which are not in dispute, are as follows. George Robert McBride, a Master Sergeant in the United States Marine Corps., was stationed at Camp Lejeune, North Carolina, when at 8:00 A.M. on May 20, 1965, he received orders effecting for him as of that time and date, a permanent change of station and directing him to report, not later than 12:00 midnight, June 1, 1965, to his new permanent duty station at Portland, Maine. The orders authorized four days proceed time, five days delay en route, three days travel time, and provided that the delay time, less proceed and travel time, would be chargeable as annual leave. Having checked out at Camp Lejeune on May 20, 1965, at 8:00 A.M., McBride nonetheless remained there until the early morning of May 29, 1965, when he packed his personal belongings into his privately owned automobile and departed the Camp, driving westerly on North Carolina Highway 24 toward Jacksonville, North Carolina. In an affidavit upon which both parties rely, Sergeant McBride states that his intention was to breakfast at a restaurant in Jacksonville and then visit some friends there before driving on to Maine. His intention, however, was thwarted when, shortly after turning from Camp Lejeune’s Main Gate onto Highway 24, McBride’s automobile collided with the Northeast Creek Bridge, to the asserted detriment of plaintiff Highway Commission. The problem presented by the subsequent action, whether a serviceman traveling between duty stations is acting within the scope of his employment, has been litigated often, and the resultant body of case law is a mosaic of differentiation and distinguishment. This fact is due not to the collective inability of the courts to reach any sort" }, { "docid": "6349042", "title": "", "text": "the forum state of North Carolina. The negligence action was barred under the applicable Missouri statute of limitations, hence summary judgment was properly granted as to that issue. But the breach of warranty issue, again looking to the conflicts law of the forum state but under the category of sales, would be resolved under North Carolina law, where sale of the tire was consummated. The district court applied North Carolina law, concluded that a recent North Carolina decision still in litigation might make a material change in the warranty law, and accordingly denied the defendant’s previous motion for summary judgment on the warranty issue, but without prejudice to renew it. The motion was renewed six months later and was granted on the basis that North Carolina law requires privity of contract in an action based on warranty. This appeal followed. After oral argument and deliberation, the panel determined that a similar North Carolina case, Dupree v. Batts, 276 N.C. 68, 170 S.E.2d 918 (1969), which had recently been remanded in order to decide the issue of privity, might be conclusive as to the privity issue here. Accordingly, we issued an order suspending further pro ceedings pending the North Carolina state court decision in Dupree. The Dupree case, however, was not tried again but was settled. Since there has been no change in North Carolina law, we are of opinion that the district court was correct in its conclusion that privity between the parties is a necessary aspect of this action based on warranty, and we affirm the granting of summary judgment on that issue. The facts are not complicated. On September 13, 1965, William Brendle was injured in an accident in Lafayette County, Missouri while he was driving a truck for his employer, a North Carolina corporation. He died a week later from his injuries. The accident allegedly was caused by a blowout of the truck’s right front tire, which had been made in Ohio by the defendant, and had been sold to Brendle’s employer in North Carolina by a North Carolina subsidiary of General Tire. The plaintiff, admin-istratrix of" }, { "docid": "8884797", "title": "", "text": "his conduct was necessary and justifiable. See In re Neagle, 135 U.S. 1, 75, 10 S.Ct. 658, 672, 34 L.Ed. 55 (1890). The district court adopted the magistrate’s proposed findings of fact and recommended conclusions of law and granted defendant’s motion to dismiss. North Carolina appeals. II. Ivory contends that the removal of his case to federal court was proper because, at the time of the accident which gave rise to the state charges, he was driving in a military convoy and believed that it was safe to enter the intersection with his convoy truck. We hold, however, that these allegations do not constitute a federal defense as required to support removal to federal court under Mesa v. California, 489 U.S. 121, 109 S.Ct. 959, 103 L.Ed.2d 99 (1989). In Mesa, United States Postal Service employees attempted to remove to federal court their state criminal prosecutions for traffic violations which arose in the course of their mail delivery duties. One employee had been charged with misdemeanor-manslaughter after she struck and killed a bicyclist with her mail truck. The second individual received a ticket for speeding and failing to yield the right-of-way after his mail truck collided with a police car. See California v. Mesa, 813 F.2d 960, 961 n. 2 (9th Cir.1987). The postal workers argued that they were entitled to remove under the federal officer removal statute, 28 U.S.C. § 1442(a)(1), because “the state charges arose from ... accident[s] ... which occurred while defendants] [were] on duty and acting in the course and scope of [their] employment with the Postal Service.” Mesa, 109 S.Ct. at 962. The Supreme Court held, however, that a “scope of employment” defense was insufficient by itself to support removal. It stressed that § 1442(a) is a pure jurisdictional statute which requires averment of a colorable federal defense in order to satisfy the requirement of Article III that a case arise under the Constitution or laws of the United States. Id. at 964, 968. Since defendants “ha[d] not and could not present an official immunity defense to the state criminal prosecutions brought against them,” the" }, { "docid": "22759179", "title": "", "text": "Mr. Justice Murphy delivered the opinion of the Court. This is a suit against the.United States under the Federal Tort Claims Act, 60 Stat. 842, 28 U. S. C. (1946 ed.) § 931, now 28 U. S. C. § 2674. The question is whether members of the United States armed forces can recover under that Act for injuries not incident to their service. The District Court for the Western District of North Carolina entered judgment against the Government, rendering an unreported opinion, but the Court of Appeals for the Fourth Circuit reversed, in a divided decision. 169 F. 2d 840. We brought the case here on certiorari because of its importance as an interpretation of the Act. 335 U. S. 901. The facts are these. Welker Brooks, Arthur Brooks, and their father, James Brooks, were riding in their automobile along a public highway in North Carolina on a dark, rainy night in February, 1945. Arthur was driving. He came to a full stop before entering an intersection, and proceeded across the nearer lane of the intersecting road. ' Seconds later the car was struck from the left by a United States Army truck, driven by a civilian employee of the. Army. Arthur Brooks was killed; Welker and his father were badly injured. . Welker and the administrator of Arthur’s, estate brought actions against'the United States in the District Court. The District Judge tried the causes without a jury and found negligence on the part of the truck driver. The Government moved to dismiss on the ground that Welker and his deceased brother were in the armed forces of the United States at the time of the accident, and were therefore barred from recovery. The Court denied the motion, entered a $25,425 judgment for the decedent’s estate, and a $4,000 judgment for Welker. On appeal, however, the Government’s argument persuaded' the Court of Appeals to reverse the judgment, Judge Parker dissenting. We agree with Judge Parker. The statute’s terms are clear. They provide for District Court jurisdiction over any claim founded on negligence brought against the United States. We are not" } ]

[ { "docid": "12380377", "title": "", "text": "SUA SPONTE ORDER VACATING ORDER OF DISCHARGE BECAUSE OF CLERICAL MISTAKE COMBINED WITH NOTICE OF THE ENTRY THEREOF DAVID S. KENNEDY, Chief Judge. The ultimate issue for judicial determination here is whether a bankruptcy court may vacate an order of discharge entered in a chapter 7 case because of its own mistake. It appears to the Court, on its own initiative, that on November 30 and December 22, 1994, among other dates, orders were entered herein pursuant to Fed.R.Bankr.P. 4004(b) extending the time for certain parties in interest to file a complaint pursuant to Fed.R.BaNKR.P. 7001(4) objecting to the debtor’s general discharge under 11 U.S.C. § 727(a)(1) — (10). Such time was extended to 60 days after the entry of a final judgment in either of two pending Shelby County, Tennessee Chancery Court lawsuits, being Civil Nos. 104321-3 and 104322-2. On June 24, 1996, the discharge of the above-named debt- or was inadvertently granted by the bankruptcy court. A court has the inherent equitable power to correct its own mistakes. See, for example, In re Cisneros, 994 F.2d 1462 (9th Cir.1993); 11 U.S.C. § 105(a); Fed. R.Bankr.P. 9024. Moreover, the equitable power given to bankruptcy courts by virtue of 11 U.S.C. § 105(a) would be meaningless if courts were unable to correct their own mistakes. In re Themy, 6 F.3d 688, 690 (10th Cir.1993) (citing In re Anwiler, 958 F.2d 925, 929 (9th Cir.), cert. denied 506 U.S. 882, 113 S.Ct. 236, 121 L.Ed.2d 171 (1992)). The problem that has arisen in this case is directly attributable to the bankruptcy court. That is, the order of discharge was inadvertently entered by the bankruptcy court due to a clerical mistake. The aforesaid Shelby County, Tennessee Chancery Court lawsuits are not yet final. This is precisely the sort of “mistake” that Fed.R.BanKR.P. 9024 and Rule 60(a) Fed.R.Cxv.P. were intended to reach. Accordingly, the June 24, 1996 “Discharge of Debtor” is hereby vacated. This result also comports with equitable 'considerations under 11 U.S.C. § 105(a). The court .apologizes for any inconvenience or the like its mistake may have caused. Based on the foregoing" } ]

[ { "docid": "18153511", "title": "", "text": "Section 727(e) permits a complaint seeking revocation to be filed within one year after the discharge was granted. We do not see how this provision precludes the court from setting aside an order of discharge under Bankruptcy Rule 9024 six months after its issuance, which was the case here. Final bankruptcy orders can be set aside under Bankruptcy Rule 9024, see In re Metr-L-Wood Corp., 861 F.2d 1012, 1018 (7th Cir.1988), and nothing in the rule indicates that it does not apply to the revocation of discharges. See In re Cisneros, 994 F.2d 1462, 1466 (9th Cir.1993) (recognizing that Bankruptcy Rule 9024 provides authority for the court to revoke a discharge); In re Midkiff, 271 B.R. 383, 386 (10th Cir. BAP 2002) (same); In re Ali, 219 B.R. 653, 654 (Bankr.E.D.N.Y.1998) (same); In re Mann, 197 B.R. 634, 635 (Bankr.W.D.Tenn.1996) (same); In re Burgett, 95 B.R. 524 (Bankr.S.D.Ohio 1988) (same). Rasmussen also suggests that using Bankruptcy Rule 9024 to vacate a discharge order is essentially an end-run around the express terms of § 727(d). This argument assumes, however, that the standards for relief under Bankruptcy Rule 9024 are identical to those under § 727(d), and this is incorrect. Section 727(d) makes revocation mandatory if the criteria spelled out in that section are satisfied, while Bankruptcy Rule 9024 (like its civil counter-part Rule 60(b)) places a heavy burden on the party seeking to undo an existing judgment. In addition, Bankruptcy Rule 9024 incorporates the one-year time limit for motions under the analog to Rule 60(b)(1), (2), or (3), while § 727(d) has no such built-in deadline. It is reasonable to allow correction on any equitable ground within a short time period, and then to impose stricter restrictions thereafter. A closer look at § 727(d) shows that it creates a two-way street: it gives a right to revocation to the trustee, creditor, or United States trustee when fraud is proven, and at the same time it protects the debtor by limiting the circumstances under which the trustee, creditor, or United States trustee has such a right. This limited right of the debtor" }, { "docid": "7297242", "title": "", "text": "the order for relief. § 348(a) (emphasis added). As the date of filing the 1991 ease would, under § 348(a), be the date of the Chapter 13 filing, the six year prohibition of § 727(a)(8) would apply to this case. As support for the contention that § 348(a) controls, the Trustee points to Resendez v. Linquist, 691 F.2d 397 (8th Cir.1982) and In re Canganelli, 132 B.R. 369 (Bankr.N.D.Ind.1991). In the Resendez case, the Eighth Circuit Court of Appeals recognized § 348(a) in the context of a Chapter 13 converted to a Chapter 7. In holding that Chapter 13 plan payments held by the Chapter 13 Trustee were, upon conversion, part of the Chapter 7 estate, the Circuit Court wrote: “[i]t is also established that when there is a conversion, the debtors are deemed to have filed a Chapter 7 case at the time the Chapter 13 case was filed.” 691 F.2d at 398-399 citing in part § 348(a). In the Canganelli case, the court examined the exact same issue involved in this case. Reviewing the applicability of § 348(a) to an analogous set of facts, the court wrote: “since the Plaintiff filed his Chapter 13 petition on July 8, 1988, the Debtor was not entitled to a discharge because the petition of the Debtor in the case in which he received his discharge was filed within six years.... ” 132 B.R. at 380. Other courts that have heard this identical issue all apply the plain meaning of § 348(a) and hold that the date of filing the Chapter 13 controls over the date of conversion for the purposes of measuring § 727(a)(8). See In re Burrell, 148 B.R. 820 (Bankr.E.D.Va.1992); In re Marshall, 74 B.R. 185 (Bankr.N.D.N.Y.1987). In his Suggestions in Support of Answer and at the hearing on this matter, Debtor was unable to cite any direct authority for his contention that the date of conversion should be the operative date. Rather, the Debtor argues that the plain meaning of § 348(a) does not give the complete answer. Debtor points to the apparent tension between §§ 522 and" }, { "docid": "18794924", "title": "", "text": "§ 523(a)(1), the bankruptcy court shares concurrent jurisdiction with other courts. See In re Canganelli, 132 B.R. 369, 385 n. 3 (Bankr.N.D.Ind.1991). Nevertheless, a determination of the validity, extent, or amount of such an underlying claim in a nonbankruptcy forum does not preclude exercise of this Court's jurisdiction in deciding whether the debt is nondis- chargeable under § 523(a)(1). Id.; see also In re Comer, 723 F.2d 737, 740 (9th Cir.1984). . The debtor's 1975-1977 tax liabilities, unlike his 1978-1981 tax liabilities, were assessed before commencement of the debtor's bankruptcy case. Thus, it could not be contended that these obligations were for taxes \"not assessed before but still assessable\" after commencement of the case so as to be priority, nondischargeable claims within the meaning of § 507(a)(7)(A)(iii). . A discharge in bankruptcy only relieves a debtor of personal liability for his obligations, see 11 U.S.C. § 524(a)(2), and does not automatically invalidate liens securing such dischargeable debts. Rather, these liens continue beyond bankruptcy as a charge upon the debtor’s property if not disallowed or avoided. In re Leavell, 124 B.R. 535, 549 (Bankr.S.D.Ill.1991); see also In re Isom, 901 F.2d 744, 746 (9th Cir. BAP 1990); In re Dillard, 118 B.R. 89, 92 (Bankr.N.D.Ill.1990). .These documents, entitled “New Tax Court Deficiency Check Lists,” indicate that there were no statute of limitations problems for the years in question. . There is no dispute that these taxes were timely assessed following entry of the tax court decision within the applicable 150-day period. . The debtor filed his bankruptcy petition on March 30, 1990, and the tax court entered its decision on August 29, 1991, after relief from stay had been granted in the bankruptcy case. The government then assessed the debtor’s 1978-1980 taxes on November 11, 1991, within the applicable period for assessment following the tax court's decision. . As previously discussed, res judicata does not bar the debtor's present dischargeability action because dischargeability is a different claim or cause of action than that determined in the tax court proceeding. Similarly, the doctrine of collateral estoppel or issue preclusion, which bars the" }, { "docid": "1542538", "title": "", "text": "in the Bankruptcy Code. Congress did not do so. Bankruptcy Code Sections 727(a)(8) and 727(a)(9) restrict a debtor’s ability to obtain a discharge in a subsequent bankruptcy ease, when the debtor has already received a discharge in an earlier case. However, both these sections only forbid granting multiple discharges; they do not forbid the filing of multiple cases. Bankruptcy Code Section 727(a)(8) precludes a debtor from receiving a discharge in a subsequent Chapter 7 ease if the debtor has received a discharge in an earlier Chapter 7 or 11 case, and if the earlier case was commenced within 6 years of the date the later case is commenced. 11 U.S.C. § 727(a)(8); See In re Keen, 121 B.R. 513, 514 (Bankr.W.D.Ky.1990). Similarly, Bankruptcy Code Section 727(a)(9) precludes a debtor from obtaining a discharge in a Chapter 7 case (with some exceptions not relevant here), if the debtor has received a discharge in an earlier Chapter 12 or 13 case, when the earlier case was commenced within 6 years of the date the later case is filed. 11 U.S.C. § 727(a)(9). B. THE LEADING CASES ON HAVING TWO BANKRUPTCY CASES OPEN AT THE SAME TIME The research of the Court and the parties, on the issue of whether or not it is permissible to have two bankruptcy eases open simultaneously, reflects that the leading cases are: (1) a United States Supreme Court case decided under the Bankruptcy Act, Freshman v. Atkins, 269 U.S. 121, 46 S.Ct. 41, 70 L.Ed. 193 (1925); (2) a 1990 Ninth Circuit Bankruptcy Appellate Panel case, In re Grimes, 117 B.R. 531 (9th Cir. BAP 1990); (3) a 1989 Seventh Circuit case, In re Jartran, Inc., 886 F.2d 859 (7th Cir.1989), aff'g 87 B.R. 525 (N.D.Ill.1988), aff'g 71 B.R. 938 (Bankr.N.D.Ill.1987); and (4) eases discussing the issue of good faith in filing multiple bankruptcies, such as In re Metz, 820 F.2d 1495 (9th Cir.1987), aff'g 67 B.R. 462 (9th Cir. BAP 1986), In re Little Creek Development Co., 779 F.2d 1068 (5th Cir.1986), and In re Can-Alta Properties, 87 B.R. 89 (Bankr. 9th Cir.1988). None of these" }, { "docid": "3247696", "title": "", "text": "Although authorities have split as to the burden of proof necessary to establish the elements of § 727(d), most recent decisions have found the preponderance of evidence standard applicable under § 523 should also apply to challenges under § 727. Kaliana, 202 B.R. at 603-04 (citing Grogan v. Garner, 498 U.S. 279, 286-87, 111 S.Ct 654, 659-60, 112 L.Ed.2d 755 (1991)); In re Emery, 201 B.R. 37, 40-41 (E.D.N.Y.1996). That standard is the correct one to apply here. Fraud Was Not Proved 1 First, the objector must prove that the Debtor’s discharge was obtained by fraud which must be fraud in fact. Id. (citing Lawrence Nat. Bank v. Edmonds (In re Edmonds), 924 F.2d 176, 180 (10th Cir.1991); Donovan v. LaPorta (In re LaPorta), 26 B.R. 687, 692 (Bankr.N.D.Ill.1982)). Fraud in fact includes an intent to deceive. Kaliana, 202 B.R. at 604 (citing Mazer v. Jones (In re Jones), 178 B.R. 1, 3-4 (Bankr.D.N.M.1995)). In addition, “the fraud must involve acts that would be grounds for denial of discharge if known prior to the granting of the discharge.” Kaliana, 202 B.R. at 604 (citations omitted). The focus of § 727(d)(1) is fraud in the procurement of the discharge, not fraud with respect to the objecting creditor. Id. “The court can revoke a discharge only if the debtor would not have been discharged pursuant to § 727(a), absent newly discovered evidence.” In re Thomas, 72 B.R. 223, 226 (Bankr.M.D.Ala.1987); In re Shelton, 58 B.R. 746, 748 (Bankr.N.D.Ill.1986). Although the parties have stipulated that Plaintiffs are in possession of sufficient evidence to prove debtor would not have been - discharged had they pursued their original Adversary proceeding pursuant to § 727(a), Plaintiffs must still prove here that the Debtors’ discharge was obtained by fraud. Plaintiffs argue that Debtors defrauded them out of their cause of action by breaching an agreement to dismiss the bankruptcy without leave to seek a discharge of their claim in a subsequent bankruptcy. Thus, in order to show fraud on the Debtors’ part, Plaintiffs must first show that the side agreement between the parties existed. Plaintiffs did not" }, { "docid": "4788706", "title": "", "text": "receiving a discharge. Finally, I believe my decision to act, sua sponte, in this matter is warranted under 11 U.S.C. § 105(a) which states in pertinent part: The court may issue any order, process, or judgment that is necessary or appropriate to carry out the provisions of this title. No provision of this title providing for the raising of an issue by a party in interest shall be construed to preclude the court from, sua sponte, taking any action necessary or appropriate to ... prevent an abuse of process. 11 U.S.C. § 105(a) (emphasis added). In this regard I respectfully disagree with Chief Judge Kent Lindquist’s opinion in In re Canganelli, 132 B.R. at 383-85. Chief Judge • Lindquist interpreted Bankruptcy Rule 4004 and 11 U.S.C. § 727(c)(1) as precluding the bankruptcy court from sua sponte denying a debtor a discharge under 727(a)(8) irrespective of the court’s equitable powers under § 105. Bankruptcy Rule 4004 places a strict 60 time limit upon the filing of a complaint objecting to a general discharge under § 727(a). Section 727(c)(1) states that “the trustee, a creditor, or the United States trustee may object to the granting of a discharge under subsection (a) of this section.” 11 U.S.C. § 727(c)(1). Chief Judge Lindquist concluded that the bankruptcy court is bound by these provisions and is thereby precluded from acting sua sponte to deny a debtor a discharge under § 727(a)(8). Id. at 383-84. When referring to the court’s equitable powers under § 105, Chief Judge Lindquist stated: § 105 speaks in terms of the power of the Court in carrying out or enforcing Court orders or rules or preventing abuse of process, and not to enforcing sua sponte the substantive rights which otherwise belong to the creditors, the trustee or the United States. In re Canganelli, 132 B.R. at 384. However, the preceding analysis ignores the clear mandate of § 727(a) which directs the court to grant a discharge unless the debtor has been granted a discharge under this section in a case commenced within six years of the filing date of the current" }, { "docid": "21181204", "title": "", "text": "discharge under certain circumstances. See e.g., Cisneros v. United States (In re Cisneros), 994 F.2d 1462, 1466 (9th Cir.1993) (holding within the context of Chapter 13 case that the bankruptcy court was not foreclosed from relying on Rule 60(b) to vacate a Chapter 13 discharge); Mosby, 244 B.R. at 90; Aden, 237 B.R. at 725; In re Tardiff, 137 B.R. 83, 85-89 (Bankr.D.Me.1992); In re Jones, 111 B.R. 674, 680 (Bankr.E.D.Tenn.1990); In re Tuan Tan Dinh, 90 B.R. 743, 745 (Bankr.E.D.Pa.1988); In re Long, 22 B.R. 152, 154 (Bankr.D.Me.1982). While some precedent holds otherwise, United States v. Trembath (In re Trembath), 205 B.R. 909, 914 (Bankr.N.D.Ill.1997) (court stated “that Rule 60(b) should not be generally applied to vacate discharge orders In re Fischer, 72 B.R. 111, 114 (Bankr.D.Minn.1987) (“A discharge in bankruptcy is not analogous to an entry of judgment, subject to vacation under Fed.R.Civ.P. 60(b).”). The Seventh Circuit opinion in Rasmussen in the year 2005 certainly recognized the possibility of a Chapter 7 debt- or using Rule 60(b) to obtain relief from a discharge order. Under Rule 60(b), a party may seek relief from a final judgment, order or proceeding based on: (1)mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(b); (3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party; (4) the judgment is void; (5) the judgment has been satisfied, released, or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application; or (6) any other reason justifying relief from the operation of the judgment. Fed. R. Civ. Pro. 60(b). This court’s research has not uncovered any published decision that relied on or even discussed “newly discovered evidence” as the basis for revoking a discharge. See e.g., Mosby, 244 B.R. at 90 (the court omitted “newly discovered evidence” from its application of Rule 60(b) to the debtor’s request to vacate the" }, { "docid": "3010545", "title": "", "text": "1999, attended by the CHA per the present counsel, was entered into the record in the May 4, 2000, hearing. Relying on the information obtained from the Clerk’s office as a complete recitation of her prior cases, the Debtor did not reference the 95 Case in response to the Trustee’s inquiries regarding same, but instead stated, erroneously but we find unknowingly, that all of her prior cases had been dismissed. The Trustee ascertained that several discrepancies and omissions existed on the Debtor’s schedules, notably a failure to identify her lease with CHA and the eviction suits against her, and she was requested to amend same. However, not waiting for these amendments, which the Debtor never did submit, the Trustee immediately, on December 28, 1999, filed his report recommending her discharge, resulting in her obtaining her discharge as of March 22, 2000. At the May 4 hearing, the Receiver also brought out the fact that the Debtor, after her eviction, had made claims for personal property removed from her unit upon her eviction, and presumably in her possession when she filed this case, which were not listed on her Schedules or mentioned at the meeting of creditors, notably three televisions, two VCR’s, two air conditioners, and a jar of coins in some undetermined amount. C. DISCUSSION In Johnson I, at *2, we addressed the issue of whether the Debtor’s obtaining a discharge in violation of 11 U.S.C. § 727(a)(8) could be attacked summarily, i.e., by a motion to reconsider that order or to correct a clerical error, or by some such procedure. The result that it apparently could not be is included in the following discussion, at id.: Our research has revealed only one precedent which has presented this identical issue under the Bankruptcy Code, In re Canganelli, 132 B.R. 369 (Bankr.N.D.Ind.1991). The Debtor cites several cases decided under the predecessor Bankruptcy Act to the same effect. In re Wrobel, 18 F.Supp. 623 (E.D.N.Y.1936); and Matawan Bank v. Feldman, 12 N.J.Misc. 785, 174 A. 442 (1934). The Canganelli court does not apply the reasoning suggested by the Defendants in their post-trial" }, { "docid": "3247695", "title": "", "text": "(4th Ed.). “Revocation of a discharge is a harsh measure and runs contrary to the general policy of the Bankruptcy Code of giving Chapter 7 debtors a ‘fresh start.’” In re Kaliana, 202 B.R. 600, 603 (Bankr.N.D.Ill.1996) (citations omitted). Thus, § 727(d) is construed strictly against the moving party and liberally in favor of the debtor. Id. Section 727(d)(1) provides in relevant part that: On request of the trustee, a creditor, or the United States trustee, and after notice and a hearing, the court shall revoke a discharge granted under subsection (a) of this section if such discharge was obtained through the fraud of the debtor, and the requesting party did not know of such fraud until after the granting of such discharge .... 11 U.S.C. § 727(d)(1). The moving party bears the burden of proving that the discharge was obtained through fraud and the moving party lacked knowledge of such fraud until after the discharge was granted. Matter of Yonikus, 974 F.2d 901, 904 (7th Cir.1992); In re Jones, 71 B.R. 682, 684 (S.D.Ill.1987). Although authorities have split as to the burden of proof necessary to establish the elements of § 727(d), most recent decisions have found the preponderance of evidence standard applicable under § 523 should also apply to challenges under § 727. Kaliana, 202 B.R. at 603-04 (citing Grogan v. Garner, 498 U.S. 279, 286-87, 111 S.Ct 654, 659-60, 112 L.Ed.2d 755 (1991)); In re Emery, 201 B.R. 37, 40-41 (E.D.N.Y.1996). That standard is the correct one to apply here. Fraud Was Not Proved 1 First, the objector must prove that the Debtor’s discharge was obtained by fraud which must be fraud in fact. Id. (citing Lawrence Nat. Bank v. Edmonds (In re Edmonds), 924 F.2d 176, 180 (10th Cir.1991); Donovan v. LaPorta (In re LaPorta), 26 B.R. 687, 692 (Bankr.N.D.Ill.1982)). Fraud in fact includes an intent to deceive. Kaliana, 202 B.R. at 604 (citing Mazer v. Jones (In re Jones), 178 B.R. 1, 3-4 (Bankr.D.N.M.1995)). In addition, “the fraud must involve acts that would be grounds for denial of discharge if known prior to the granting" }, { "docid": "18153510", "title": "", "text": "consistently with Greenig, that the revocation of Rasmussen’s discharge exceeded the court’s equitable powers under § 105(a). Although the bankruptcy court did not have authority to revoke the discharge under § 105(a), this does not mean the court was without any authority to set matters right. The bankruptcy court also relied on Bankruptcy Rule 9024, which applies Fed: R. Civ. P. 60 to cases under the Code, with several exceptions, one of which we discuss below. Rule 60(b) allows the court to vacate an order that it entered as a result of mistake, inadvertence, excusable neglect, fraud, or to conform to newly discovered evidence, or for any other reason justifying relief from the operation of the judgment. Rasmussen argues that Bankruptcy Rule 9024 does not apply to the revocation of a discharge because one of the exceptions it carves out from Fed. R. Civ. P. 60 is for “a complaint to revoke a discharge in a chapter 7 liquidation case,” which “may be filed only within the time allowed by § 727(e) of the Code.” Section 727(e) permits a complaint seeking revocation to be filed within one year after the discharge was granted. We do not see how this provision precludes the court from setting aside an order of discharge under Bankruptcy Rule 9024 six months after its issuance, which was the case here. Final bankruptcy orders can be set aside under Bankruptcy Rule 9024, see In re Metr-L-Wood Corp., 861 F.2d 1012, 1018 (7th Cir.1988), and nothing in the rule indicates that it does not apply to the revocation of discharges. See In re Cisneros, 994 F.2d 1462, 1466 (9th Cir.1993) (recognizing that Bankruptcy Rule 9024 provides authority for the court to revoke a discharge); In re Midkiff, 271 B.R. 383, 386 (10th Cir. BAP 2002) (same); In re Ali, 219 B.R. 653, 654 (Bankr.E.D.N.Y.1998) (same); In re Mann, 197 B.R. 634, 635 (Bankr.W.D.Tenn.1996) (same); In re Burgett, 95 B.R. 524 (Bankr.S.D.Ohio 1988) (same). Rasmussen also suggests that using Bankruptcy Rule 9024 to vacate a discharge order is essentially an end-run around the express terms of § 727(d). This" }, { "docid": "5450449", "title": "", "text": "(citing Griffin v. Oceanic Contractors, Inc., 458 U.S. 564, 571, 102 S.Ct. 3245, 3250, 73 L.Ed.2d 973 (1982)). Our holding does not contravene the intent of the framers of the Code, does not conflict with any other section of the Code, and is not contrary to § 727(d)’s legislative history. In short, there is no reason not to interpret § 727(d) consistent with its “plain meaning.” The bankruptcy court was correct in enforcing § 727(d) according to its terms. Debtor did not have standing under § 727(d) to seek the revocation of his discharge. B. The Bankruptcy Court Did Not Err in Refusing to Revoke Debtor’s Discharge on General Equity Principles. Debtor argues that two cases support the principle that the bankruptcy court has the equitable power to revoke a discharge when requested by a debtor. See In re Jones, 111 B.R. 674, 675 (Bankr.E.D.Tenn.1990); In re Tuan Tan Dinh, 90 B.R. 743, 745 (Bankr.E.D.Pa.1988). In Jones, the bankruptcy court referred to an earlier decision, In re Caldwell, 67 B.R. 296, 300 (Bankr.E.D.Tenn.1986), where the court held that a debtor could convert his chapter 7 case to a case under chapter 13 and revoke his discharge when the discharge was meaningless. Jones, 111 B.R. at 676. In Caldwell, the court viewed the discharge as “meaningless,” because the debt- or’s only unsecured debts had been held non-disehargeable. Caldwell, 67 B.R. at 301. Additionally, the court saw no harm to any creditor by granting the debtor’s motion to revoke the discharge. Id. At no point in its decision did the Caldwell court discuss the implications of § 727(d). The Jones court, however, distinguished its situation from Caldwell, finding that a reaffirmation creditor and other unsecured creditors would be harmed if the discharge were revoked. The court also recognized that “the Bankruptcy Code provides for revocation of discharges granted under chapter 7 only in accordance with Code § 727(d) and (e).” Jones, 111 B.R. at 679. Despite § 727(d), the court was willing to weigh equitable considerations. Id. The court discussed the Tuan Tan Dinh decision and concluded that, under the circumstances, a" }, { "docid": "4788703", "title": "", "text": "wanted to have the present case converted to chapter 7 after June 13, 1992 (the six year anniversary of his last chapter 7 case), believing this would qualify him for another chapter 7 discharge. However, debtor asserts the clerk's office disobeyed his instructions and converted the case too soon. Accordingly, debtor argues he should not be denied a chapter 7 discharge in this bankruptcy case. He has made no substantive argument contesting the rationale of the court’s show cause order. Discussion and Conclusions of Law The issue before the court is whether debtor is entitled to a chapter 7 discharge in light of 11 U.S.C. § 727(a)(8) which states in pertinent part: (a) The court shall grant the debtor a discharge, unless— ... (8) the debtor has been granted a discharge under this section ... in a case commenced within six years before the date of the filing of the petition; 11 U.S.C. § 727(a)(8) (emphasis added). [1] The purpose of this section is to prevent overly frequent use of liquidation as a means of avoiding debt. Madison Lumber & Block Company v. Rand D. Marshall (In re Marshall), 74 B.R. 185, 186 (Bankr.N.D.N.Y.1987) (citing 4 Lawrence P. King, Collier on Bankruptcy, ¶ 727.11, ¶ 727-83, 84 (15th ed. 1986)). The statute is clear that the date on which the six year period begins to run is the commencement date of the previous chapter 7 case. See Michael Antonio Canganelli v. Lake County Indiana Department of Public Welfare (In re Canganelli), 132 B.R. 369, 378 (Bankr.N.D.Ind.1991). In this case the beginning date is June 13, 1986, and debtor has not argued otherwise. The second part of the issue is whether the date which concludes the six year period is the initial filing date of debt- or’s present case or the date the case was converted to chapter 7. Although both dates are within the six year period barring a subsequent chapter 7 discharge (October 21, 1991 and June 9, 1992), debtor asserts that if the appropriate date is the date of conversion he should be entitled to a discharge nonetheless" }, { "docid": "4788704", "title": "", "text": "avoiding debt. Madison Lumber & Block Company v. Rand D. Marshall (In re Marshall), 74 B.R. 185, 186 (Bankr.N.D.N.Y.1987) (citing 4 Lawrence P. King, Collier on Bankruptcy, ¶ 727.11, ¶ 727-83, 84 (15th ed. 1986)). The statute is clear that the date on which the six year period begins to run is the commencement date of the previous chapter 7 case. See Michael Antonio Canganelli v. Lake County Indiana Department of Public Welfare (In re Canganelli), 132 B.R. 369, 378 (Bankr.N.D.Ind.1991). In this case the beginning date is June 13, 1986, and debtor has not argued otherwise. The second part of the issue is whether the date which concludes the six year period is the initial filing date of debt- or’s present case or the date the case was converted to chapter 7. Although both dates are within the six year period barring a subsequent chapter 7 discharge (October 21, 1991 and June 9, 1992), debtor asserts that if the appropriate date is the date of conversion he should be entitled to a discharge nonetheless because the clerk’s office erred in converting his case too soon and contrary to an instruction contained in his motion to convert. The bankruptcy code and applicable case law is quite clear that the date of the original filing and not the date of conversion is the date which concludes the six year period barring a subsequent chapter 7 discharge. 11 U.S.C. § 348(a) ] see e.g., Michael Antonio Canganelli v. Lake County Indiana Department of Public Welfare (In re Canganelli), 132 B.R. 369, 380 (Bankr.N.D.Ind.1991); In re Marshall, 74 B.R. at 186. Application of § 348(a) mandates that the “date of filing” the original chapter 13 petition controls. Therefore, since debtor filed his chapter 13 petition on October 21, 1991, this court holds that debtor is not entitled to a another chapter 7 discharge in this case. Debtor’s current bankruptcy petition was filed within six years from the commencement of debtor’s previous chapter 7 case (June 13, 1986) in which he received a discharge. As such, 11 U.S.C. § 727(a)(8) prevents the debtor from" }, { "docid": "3010547", "title": "", "text": "brief, i.e., that the granting of a discharge in violation of § 727(a)(8) is comparable to a clerical error such as granting a discharge in the face of a decision denying a discharge. See In re Ali, 219 B.R. 653 (Bankr.E.D.N.Y.1998); and In re Mann, 197 B.R. 634 (Bankr.W.D.Tenn.1996). Other analogous decisions appear to favor the Canganelli, result. See Bluthenthal v. Jones, 208 U.S. 64, 28 S.Ct. 192, 52 L.Ed. 390 (1908) (allowing claims to “stand” in a subsequent bankruptcy ease effectively waived any assertion that the discharge in a case which could have been denied on the ground that the presence of an earlier case barred a discharge could be raised); Ginsberg v. Thomas, 170 F.2d 1, 3-4 (10th Cir.1948) (same); In re Barr, 207 B.R. 160 (Bankr.N.D.Ill.1997) (creditor cannot revoke a discharge entered in violation of the terms of a stipulation with a creditor in the absence of fraud by the debtors). But see In re Cisneros, 994 F.2d 1462, 1465-67 (9th Cir.1993) (Chapter 13 discharge entered because a claim was not properly recorded can be set aside under Federal Rule of Bankruptcy Procedure 9024); In re Brown, 35 F.Supp. 619, 622 (D.N.H.1940) (principle of Blu-menthal not applied when objections to the later discharge were timely raised); In re Hammond, 9 F.Supp. 628 (D.Kan.1934) (withdrawal of objection to denial of discharge because of the result in an earlier case does not preclude the court from denying the discharge sua sponte); and In re Mendoza, 16 B.R. 990 (Bankr.S.D.Cal.1982) (while the debtor was not barred from a discharge due to a prior discharge which was later revoked, a debt listed in initial case could not be discharged in the later case). Having received no further relevant authority from the parties on this point, we are now prepared to state conclusively that we are prepared to follow Ccmganelli as the only contemporaneous decision on point. This result effectively eliminates most of the claims raised in the Motion, except a general reference to 11 U.S.C. § 727(d), and the first two Counts of the Complaint filed in the Proceeding (joining the" }, { "docid": "4788705", "title": "", "text": "because the clerk’s office erred in converting his case too soon and contrary to an instruction contained in his motion to convert. The bankruptcy code and applicable case law is quite clear that the date of the original filing and not the date of conversion is the date which concludes the six year period barring a subsequent chapter 7 discharge. 11 U.S.C. § 348(a) ] see e.g., Michael Antonio Canganelli v. Lake County Indiana Department of Public Welfare (In re Canganelli), 132 B.R. 369, 380 (Bankr.N.D.Ind.1991); In re Marshall, 74 B.R. at 186. Application of § 348(a) mandates that the “date of filing” the original chapter 13 petition controls. Therefore, since debtor filed his chapter 13 petition on October 21, 1991, this court holds that debtor is not entitled to a another chapter 7 discharge in this case. Debtor’s current bankruptcy petition was filed within six years from the commencement of debtor’s previous chapter 7 case (June 13, 1986) in which he received a discharge. As such, 11 U.S.C. § 727(a)(8) prevents the debtor from receiving a discharge. Finally, I believe my decision to act, sua sponte, in this matter is warranted under 11 U.S.C. § 105(a) which states in pertinent part: The court may issue any order, process, or judgment that is necessary or appropriate to carry out the provisions of this title. No provision of this title providing for the raising of an issue by a party in interest shall be construed to preclude the court from, sua sponte, taking any action necessary or appropriate to ... prevent an abuse of process. 11 U.S.C. § 105(a) (emphasis added). In this regard I respectfully disagree with Chief Judge Kent Lindquist’s opinion in In re Canganelli, 132 B.R. at 383-85. Chief Judge • Lindquist interpreted Bankruptcy Rule 4004 and 11 U.S.C. § 727(c)(1) as precluding the bankruptcy court from sua sponte denying a debtor a discharge under 727(a)(8) irrespective of the court’s equitable powers under § 105. Bankruptcy Rule 4004 places a strict 60 time limit upon the filing of a complaint objecting to a general discharge under § 727(a)." }, { "docid": "19852435", "title": "", "text": "no exception to the 30-day deadline could be implied. See Taylor v. Freeland & Kronz, 503 U.S. 638, 643-45, 112 S.Ct. 1644, 1648-49, 118 L.Ed.2d 280 (1992). Even though deadlines may lead to harsh results in particular cases, their observance by the bankruptcy bar and their enforcement by courts lead to the salutary result of bringing finality to bankruptcy proceedings. Id. at 644, 112 S.Ct. at 1648; see also Canganelli v. Lake County Indiana Dep’t of Pub. Welfare (In Re Canganelli), 132 B.R. 369, 383 (Bankr.N.D.Ind.1991) (collecting cases stating that the time limit in Bankr.R. 4004 is strictly construed); Austin Farm Ctr., Inc. v. Harrison (In Re Harrison), 71 B.R. 457, 459 (Bankr.D.Minn.1987) (equities in a discharge adversary proceeding provide no basis for ignoring 60-day limitations period). The interest of finality, advanced by the deadline, furthers an important policy goal in bankruptcy law, that is, that a debtor should obtain a fresh start in life and an opportunity to move ahead free of financial distress as quickly as possible. See Lines v. Frederick, 400 U.S. 18, 19, 91 S.Ct. 113, 113-14, 27 L.Ed.2d 124 (1970) (per curiam). After the deadline passes, it is too late for any party to object to discharge in an ongoing adversary proceeding or to seek to intervene to raise an objection to discharge in another proceeding. See 8 Collier on Bankruptcy ¶ 4004.03[3], at 4004-11. Hence, under § 727 an objection must be made within 60 days or not at all. Special rules also govern the dismissal of complaints seeking denial of discharge. Bankr.R. 7041 governs the dismissal of complaints and incorporates Fed.R.Civ.P. 41, except that when a complaint asking that a discharge be denied is dismissed, notice must be given to the trustee, the United States trustee, and other persons as the court directs. Further, the bankruptcy court may condition discharge on such “terms and conditions” as it deems proper. Bankr.R. 7041. This rule allows the bankruptcy court to tailor its order of dismissal to ensure that the dismissal was not obtained improperly. It also allows the trastee and other creditors to oppose dismissal" }, { "docid": "21181203", "title": "", "text": "some reprehensible behavior. More to the point, Chapter 7 debtors are given a clear right to seek conversion to Chapter 13 “at any time” under § 706(a), and can try to save their homes or other property thereby. The Code should be viewed as encouraging and permitting debtors to pay their debts in Chapter 13 and thereby save property needed for their lives and families and should not be read to bar that possibility unless the statute clearly bars it. In short, the different nature of interests of parties named in § 727(d) and the interests of debtors require conclusion that the statutory listing does not under rules of construction bar debtors from seeking to vacate their discharge. 3. Rule 60(b) Fed.R.Civ.P. Provides Authority for Debtors ’ Motion While authorities have doubted the equitable power of a Bankruptcy Judge to revoke the Debtors’ discharge on court’s own volition, it has been held that Rule 60(b) Fed.R.Civ.P. (as adopted by Rule 9024 Fed. R. Bankr.P.) may permit courts to grant a debtor’s request to vacate a discharge under certain circumstances. See e.g., Cisneros v. United States (In re Cisneros), 994 F.2d 1462, 1466 (9th Cir.1993) (holding within the context of Chapter 13 case that the bankruptcy court was not foreclosed from relying on Rule 60(b) to vacate a Chapter 13 discharge); Mosby, 244 B.R. at 90; Aden, 237 B.R. at 725; In re Tardiff, 137 B.R. 83, 85-89 (Bankr.D.Me.1992); In re Jones, 111 B.R. 674, 680 (Bankr.E.D.Tenn.1990); In re Tuan Tan Dinh, 90 B.R. 743, 745 (Bankr.E.D.Pa.1988); In re Long, 22 B.R. 152, 154 (Bankr.D.Me.1982). While some precedent holds otherwise, United States v. Trembath (In re Trembath), 205 B.R. 909, 914 (Bankr.N.D.Ill.1997) (court stated “that Rule 60(b) should not be generally applied to vacate discharge orders In re Fischer, 72 B.R. 111, 114 (Bankr.D.Minn.1987) (“A discharge in bankruptcy is not analogous to an entry of judgment, subject to vacation under Fed.R.Civ.P. 60(b).”). The Seventh Circuit opinion in Rasmussen in the year 2005 certainly recognized the possibility of a Chapter 7 debt- or using Rule 60(b) to obtain relief from a discharge" }, { "docid": "3010546", "title": "", "text": "her possession when she filed this case, which were not listed on her Schedules or mentioned at the meeting of creditors, notably three televisions, two VCR’s, two air conditioners, and a jar of coins in some undetermined amount. C. DISCUSSION In Johnson I, at *2, we addressed the issue of whether the Debtor’s obtaining a discharge in violation of 11 U.S.C. § 727(a)(8) could be attacked summarily, i.e., by a motion to reconsider that order or to correct a clerical error, or by some such procedure. The result that it apparently could not be is included in the following discussion, at id.: Our research has revealed only one precedent which has presented this identical issue under the Bankruptcy Code, In re Canganelli, 132 B.R. 369 (Bankr.N.D.Ind.1991). The Debtor cites several cases decided under the predecessor Bankruptcy Act to the same effect. In re Wrobel, 18 F.Supp. 623 (E.D.N.Y.1936); and Matawan Bank v. Feldman, 12 N.J.Misc. 785, 174 A. 442 (1934). The Canganelli court does not apply the reasoning suggested by the Defendants in their post-trial brief, i.e., that the granting of a discharge in violation of § 727(a)(8) is comparable to a clerical error such as granting a discharge in the face of a decision denying a discharge. See In re Ali, 219 B.R. 653 (Bankr.E.D.N.Y.1998); and In re Mann, 197 B.R. 634 (Bankr.W.D.Tenn.1996). Other analogous decisions appear to favor the Canganelli, result. See Bluthenthal v. Jones, 208 U.S. 64, 28 S.Ct. 192, 52 L.Ed. 390 (1908) (allowing claims to “stand” in a subsequent bankruptcy ease effectively waived any assertion that the discharge in a case which could have been denied on the ground that the presence of an earlier case barred a discharge could be raised); Ginsberg v. Thomas, 170 F.2d 1, 3-4 (10th Cir.1948) (same); In re Barr, 207 B.R. 160 (Bankr.N.D.Ill.1997) (creditor cannot revoke a discharge entered in violation of the terms of a stipulation with a creditor in the absence of fraud by the debtors). But see In re Cisneros, 994 F.2d 1462, 1465-67 (9th Cir.1993) (Chapter 13 discharge entered because a claim was not properly" }, { "docid": "2657754", "title": "", "text": "173 B.R. at 924; In re Devers, 759 F.2d 751, 753 (9th Cir.1985) (“The statute is to be construed liberally in favor of debtors and strictly against the objector”). To succeed on its claim under § 727(d)(1), the Trustee was required to prove by a preponderance of the evidence: (1) that Valencia obtained a discharge through fraud, and (2) that the Trustee was unaware of the alleged fraud prior to discharge. 11 U.S.C. § 727(d)(1). See also In re Topper, 85 B.R. 167, 169 (Bankr. S.D.Fla.1988). To prove the first of these elements, the Trustee had to demonstrate that Valencia committed fraud in fact, that the fraud occurred in or in connection with her procurement of a discharge, and that “sufficient grounds ... existed which would have prevented the discharge.” See Bowman, supra, 173 B.R. at 924 (“‘To revoke a discharge under § 727(d), the debtor must have committed a fraud in fact which would have barred the discharge had the fraud been known,’ ”) quoting In re Edmonds, supra, 924 F.2d 176, 180 (10th Cir.1991). The grounds for a denial of discharge are enumerated in 11 U.S.C. § 727(a), which states, in part, that the court may deny the debtor a discharge if she knowingly and fraudulently made a false oath in or in connection with the bankruptcy action. See 11 U.S.C. § 727(a)(4)(A). Thus, to secure revocation of Valencia’s discharge, the Trustee was required to show that the fraud in which Valencia engaged would have caused the bankruptcy court to deny her a discharge under § 727(a)(4)(A) had it been known at the time. This is because “[t]he focus of § 727(d)(1) is fraud in the procurement of the discharge, not fraud with respect to the objecting creditor.” In re Barr, 207 B.R. 160, 165 (Bankr.N.D.Ill.1997) (citing In re Kaliana, 202 B.R. 600, 604 (Bankr. N.D.Ill.1996)). Section 727(d)(1) is strictly construed against the objector and liberally in favor of the debtor. In re Jones, 178 B.R. 1, 3 (Bankr.D.N.M.1995); Bowman, supra, 173 B.R. at 924 (citing In re Adeeb, 787 F.2d 1339, 1342 (9th Cir.1986)). C. Whether “Obtaining" }, { "docid": "19852434", "title": "", "text": "this reason that Society sought substitution as plaintiff and amendment of the default judgment. B. Rules Governing § 727 Relief Clearly, § 727 imposes an extreme penalty for wrongdoing. As such, we have held that it must be construed strictly against those who object to the debtor’s discharge and “liberally in favor of the bankrupt.” See Adlman, 541 F.2d at 1003 (applying analogous Bankruptcy Act provision). The Code also recognizes the drastic nature of § 727 by providing special procedural rules governing § 727 cases. Bankr.R. 4004, entitled “Grant or Denial of Discharge,” mandates that objections under § 727(a) be lodged within 60 days of the initial creditors’ meeting, although a creditor may move, during the original 60-day period, for an extension. Bankr.R. 4004(a) and (b). This deadline is an inflexible and mandatory rule, one not subject to a court’s discretion. In the context of Bankr.R. 4003(b), which requires that objections to a debtor’s claim of exemptions be lodged within 30 days after the initial creditors’ meeting is concluded, the Supreme Court has held that no exception to the 30-day deadline could be implied. See Taylor v. Freeland & Kronz, 503 U.S. 638, 643-45, 112 S.Ct. 1644, 1648-49, 118 L.Ed.2d 280 (1992). Even though deadlines may lead to harsh results in particular cases, their observance by the bankruptcy bar and their enforcement by courts lead to the salutary result of bringing finality to bankruptcy proceedings. Id. at 644, 112 S.Ct. at 1648; see also Canganelli v. Lake County Indiana Dep’t of Pub. Welfare (In Re Canganelli), 132 B.R. 369, 383 (Bankr.N.D.Ind.1991) (collecting cases stating that the time limit in Bankr.R. 4004 is strictly construed); Austin Farm Ctr., Inc. v. Harrison (In Re Harrison), 71 B.R. 457, 459 (Bankr.D.Minn.1987) (equities in a discharge adversary proceeding provide no basis for ignoring 60-day limitations period). The interest of finality, advanced by the deadline, furthers an important policy goal in bankruptcy law, that is, that a debtor should obtain a fresh start in life and an opportunity to move ahead free of financial distress as quickly as possible. See Lines v. Frederick, 400 U.S." } ]

[ { "docid": "22067407", "title": "", "text": "remained exclusively judge-made doctrine until the passage of the 1976 Copyright Act, in which Justice Story’s summary is discernible: “§ 107. Limitations on exclusive rights: Fair use “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 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. “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 (1988 ed. and Supp. IV). Congress meant § 107 “to restate the present judicial doctrine of fair use, not to change, narrow, or enlarge it in any way” and intended that courts continue the common-law tradition of fair use adjudication. H. R. Rep. No. 94-1476, p. 66 (1976) (hereinafter House Report); S. Rep. No. 94-473, p. 62 (1975) (hereinafter Senate Report). The fair use doctrine thus “permits [and requires] courts to avoid rigid application of the copyright statute when, on occasion, it would stifle the very creativity which that law is designed to foster.” Stewart v. Abend, 495 U. S. 207, 236 (1990) (internal quotation marks and citation omitted). The task is not to be simplified with bright-line rules, for the statute, like the doctrine it recognizes, calls for case-by-case analysis. Harper & Row, 471 U. S., at 560; Sony, 464 U." } ]

[ { "docid": "1762799", "title": "", "text": "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 as a matter of law whether the challenged use qualifies as a fair use of the copyrighted work.” Hustler Magazine, supra. There are no genuine disputed material facts in this case, making a finding as to whether Defendants use was a fair use as a matter of law appropriate. To begin with, it is clear that the trailer Defendant copied from Plaintiff was not used for criticism, comments, news reporting, teaching, scholarship, or research, but rather was sold for strictly commercial profit purposes. It is true that the text of § 107 is not entirely dispositive. The Supreme Court has noted that the § 107 text “employs the terms ‘including’ and ‘such as’ in the preamble paragraph to indicate ‘illustrative and not limitative’ functions of the examples given, ... which thus provide only general guidance about the sorts of copying that courts and Congress most commonly had found to be fair uses.” Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 577, 114 S.Ct. 1164, 1170, 127 L.Ed.2d 500 (1994). Therefore, courts must balance the statutory" }, { "docid": "8435971", "title": "", "text": "author has the exclusive rights to reproduce, distribute, and display a copyrighted work under section 106, these rights are limited by the defense of “fair use”: Notwithstanding the provisions of section 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies ... or by any other means specified in 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. 17 U.S.C. § 107 (emphasis added). The defense “permits and requires courts to avoid rigid application of the copyright statute when, on occasion, it would stifle the very creativity which that law is designed to foster.” Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, -, 114 S.Ct. 1164, 1170, 127 L.Ed.2d 500 (1994) (citation omitted). Congress has set out four nonexclusive factors to be considered in determining the availability of the fair use defense: (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. The fair use doctrine calls for a case-by-ease analysis. Campbell, 510 U.S. at -, 114 S.Ct. at 1170. All of the factors “are to be explored, and the results weighed together, in light of the purposes of copyright.” Id. 510 U.S. at - - -, 114 S.Ct. at 1170-71. a. First Factor: Purpose and Character of the Use The first statutory factor looks to the purpose and character of the defendant’s use. Erlich argues that his use was criticism, which is one of those uses listed in the preamble to section 107. Similarly, Erlich maintains that his use was meant to “evoke discussion regarding various Scientology philosophies.” Mot. To Dissolve at 22. Use for the purpose of criticism weighs in favor of fair use." }, { "docid": "3559037", "title": "", "text": "creativity which that law is designed to foster.” Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 577, 114 S.Ct. 1164, 127 L.Ed.2d 500 (1994). When that is the case, the fair use doctrine may be implicated. Congress codified the judicially created “fair use” defense at § 107 of the 1976 Copyright Act, which permits a “fair use of a copyrighted work.” 17 U.S.C. § 107. A fair use, although not specifically defined by the statute, is one made “for purposes such as criticism, comment, news reporting, teaching ..., scholarship, or research.” Id. It is an affirmative defense for which the alleged infringer bears the burden of proof. In judging the fairness of a particular use, courts must take into account the following non-exhaustive list of factors: (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. Id. The four statutory factors “do not represent a score card that promises victory to the winner of the majority.” Pierre N. Leval, Toward a Fair Use Standard, 103 Harv. L. Rev. 1105, 1110 (1990). Rather, each factor is “to be explored, and the results weighed together, in light of the purposes of copyright.” Campbell, 510 U.S. at 578, 114 S.Ct. 1164 (citations omitted). Thus, as we apply copyright law, and the fair use doctrine in particular, we bear in mind its purpose to encourage “creative activity” for the public good. Sony Corp., 464 U.S. at 429, 104 S.Ct. 774. This focus on copyright’s purpose makes relevant a comparison of the copy with the original: where the copier uses none of his own creative activity to transform the original work, holding the fair use doctrine inapplicable will not likely interfere with copyright’s goal of encouraging creativity. Thus, in the typical fair use case, the analysis under each statutory" }, { "docid": "12355133", "title": "", "text": "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 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. 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. Courts do not consider fair use “with bright-line rules, for the statute, like the doctrine it recognizes, calls for case-by-case analysis.” Campbell, 510 U.S. at 577, 114 S.Ct. 1164. The four listed factors are not to be considered in isolation and “do not represent a score card that promises victory to the winner of the majority.” Video Pipeline, Inc. v. Buena Vista Home Entm’t, Inc., 342 F.3d 191, 198 (3d Cir.2003) (quoting Pierre N. Leval, Toivard a Fair Use Standard, 103 Harv. L.Rev. 1105, 1110 (1990)). Instead, the factors are “to be explored, and the results weighed together, in light of the purposes of copyright.” Id. (quoting Campbell, 510 U.S. at 578, 114 S.Ct. 1164); see also Leval, supra, at 1110-11 (“[The fair use factors] direct courts to examine the issue from every pertinent corner and to ask in each case whether, and how powerfully, a finding of fair use would serve or disserve the objectives of the copyright.”). “This focus on copyright’s purpose makes relevant a comparison of the copy with the original: where the copier uses none of his own creative" }, { "docid": "22252366", "title": "", "text": "which was well known and used before.” Id. (quotation marks omitted). Until the 1976 Copyright Act, the doctrine of fair use grew exclusively out of the common law. See id. at 576, 114 S.Ct. 1164; Folsom v. Marsh, 9 F.Cas. 342, 348 (C.D.Mass.1900) (CCD Mass. 1841) (Story, J.) (stating fair use test); Pierre N. Leval, Toward a Fair Use Standard, 103 Harv. L.Rev. 1105, 1105 (1990) (“Leval”). In the Copyright Act, Congress restated the common law tradition of fair use: [T]he 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. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include&emdash; (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 thé copyrighted work. 17 U.S.C. § 107. This section “intended that courts continue the common law tradition of fair use adjudication” and “permits and requires courts to avoid rigid application of the copyright statute, when, on occasion, it would stifle the very creativity which that law is designed to foster.” Campbell, 510 U.S. at 577, 114 S.Ct. 1164 (quotation marks omitted). Fair use analysis, therefore, always “calls for case-by-case analysis.” Id. The fair use examples provided in § 107 are “illustrative and not limitative” and “provide only general guidance about the sorts of copying that courts and Congress most commonly had found to be fair uses.” Id. at 577-78, 114 S.Ct. 1164. Similarly, the four listed statutory factors in § 107 guide but do not control our fair use analysis and “are to be explored, and the results weighed together, in light of the purposes of copyright.” Id.; see 4 Nimmer" }, { "docid": "17402019", "title": "", "text": "510 U.S. at 577, 114 S.Ct. 1164. The fair use doctrine, although of common law origin, has been codified at 17 U.S.C. § 107. This section provides that [njotwithstanding the provisions of sections 106 and 106A, 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. The applicability of the fair use defense is a mixed question of law and fact. Bill Graham Archives v. Dorling Kindersley, Ltd., 448 F.3d 605, 608 (2d Cir.2006). The issue of fair use may be resolved on summary judgment where the court determines that there is no genuine dispute of material facts. Id. In determining whether a defendant has made fair use of the plaintiffs copyrighted work, the court is guided by four nonexclusive statutory factors: (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. No single factor is determinative. “All are to be explored, and the results weighed together, in light of the purpose of copyright.” Campbell, 510 U.S. at 578, 114 S.Ct. 1164. At bottom, “[t]he ultimate test of fair use is whether the copyright law’s goal of promoting the Progress of Science and useful Arts would be better served by allowing the use than by preventing it.” Bill Graham Archives, 448 F.3d at 608 (citation omitted). When these four factors are examined in light of the purpose of the copyright law, AP has shown through undisputed evidence that Meltwater’s copying is not protected by the fair use doctrine. Each of these four factors will be examined in turn. A. Purpose and Character of the Use The first factor of the fair use analysis poses a deceptively simple question. It" }, { "docid": "16418299", "title": "", "text": "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 include- (a) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; (b) the nature of the copyrighted work; (c) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (d) the effect of the use upon the potential market for or value of the copyrighted work. 17 U.S.C. § 107. The fair use doctrine thus “permits [and requires] courts to avoid rigid application of the copyright statute when, on occasion, it would stifle the very creativity which that law is designed to foster.” Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 577, 114 S.Ct. 1164, 127 L.Ed.2d 500 (1994) (quoting Stewart v. Abend, 495 U.S. 207, 236, 110 S.Ct. 1750, 109 L.Ed.2d 184 (1990)). The process of applying these fair use factors to the facts of any particular scenario calls for case-by-case analysis, and the “task is not to be simplified with bright-line rules.” Id. The four factors are to be considered together in light of the purposes of copyright, not in isolation. See id. In this analysis, the commercial use of copyrighted material is not presumptively unfair; rather, commercial use is but one of four factors that we must weigh. The Supreme Court expressly rejected the irrebutability of the presumption against fair use in commercial contexts in Campbell when the Court flatly reversed the Sixth Circuit for making just such a presumption. 510 U.S. at 590-91, 114 S.Ct. 1164. The Court emphasized that, although the fourth factor may be the most important, all factors must be considered, and the commercial nature of the copies is just one element in the broader calculus. See id. We reiterated that position in our Con-nectix decision," }, { "docid": "11828547", "title": "", "text": "114 S.Ct. 1164, 1175, 127 L.Ed.2d 500 (1994). We find upon proper application of the factors that defendants are entitled to the defense at the summary judgment stage as to Count 3 only. A. The Copyright Act provides that: [T]he 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. 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. Fair use doctrine is an “equitable rule of reason”; neither the examples of possible fair uses nor the four statutory factors are to be considered exclusive. Stewart v. Abend, 495 U.S. 207, 286-37, 110 S.Ct. 1750, 1768, 109 L.Ed.2d 184 (1990); Campbell, 510 U.S. at 577-78, 114 S.Ct. at 1170-71. Furthermore, the statutory factors are not to “be treated in isolation, one from another. All are to be explored, and the results weighed together, in light of the purposes of copyright.” Campbell, 510 U.S. at 578, 114 S.Ct. at 1170-71. The district court explicitly adopted a “fifth” factor, which it described as “the copyright owner’s actual consent to the use of the copyrighted material.” The court pointed to record evidence showing that “both Dane and Plaintiff knew of, assented to, and participated in Defendants’ use of [Big League Sales] for decades,” namely, (1) the fact that in the 1980s, Les Dane taught the book and used sales drills in Church seminars, and (2) the fact that Letterese knew of Les Dane’s participation in Church seminars and, as a practicing Scientologist, took several courses teaching the" }, { "docid": "7939630", "title": "", "text": "applied as “an equitable rule of reason, for which no generally applicable definition is possible.” Sundeman, 142 F.3d at 202 (quotations omitted). The fair use inquiry is “not to be simplified with bright-line rules, for the statute, like the doctrine it recognizes, calls for case-by-case analysis.” Campbell, 510 U.S. at 577, 114 S.Ct. 1164. Nevertheless, it is appropriate to use the four statutory factors listed in § 107 “[t]o guide the determination of whether a particular use is a fair use.” Bond, 317 F.3d at 394. The four factors are as follows: (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. We will proceed to measure each use of the Flying B logo by defendants against § 107’s four factors. We will, of course, keep in mind that the factors are not to be “treated in isolation,” but rather “the results [are to be] weighed together, in light of the purposes of copyright.” Campbell, 510 U.S. at 578, 114 S.Ct. 1164. III. A. Defendants’ first use of the Flying B logo that we analyze is its depiction in the season highlight films sold by the NFL and the highlight film played during the Ravens home football games. 1. Under § 107’s first factor we consider “the purpose and character of [defendants’] use [of the Flying B logo], including whether such use is of a commercial nature or is for nonprofit educational purposes.” 17 U.S.C. § 107(1). This inquiry “may be guided by the [fair use] examples given in the preamble to § 107,” Campbell, 510 U.S. at 578,114 S.Ct. 1164, specifically, “criticism, comment, news reporting, teaching ... scholarship, or research,” 17 U.S.C. § 107. The 1996 highlight film played by the Ravens during home football games is part of an entertainment package included" }, { "docid": "6653621", "title": "", "text": "(including multiple copies for classroom use), scholarship or research, is not an infringement of copyright. In determining whether the use made of the 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 purpose; (2) the nature of the copyrighted work; (3) the substantiality of the portion used in relation to the copyrighted work as a whole; and (4) the effect on the potential market for or the value of the copyrighted work. Whether a use referred to in the first sentence of Section 107 is a fair use in a particular ease depends upon the application of the determinative factors. Campbell v. Acuff-Rose Music, Inc., supra, 510 U.S. 569, 578, n. 9, 114 S.Ct. 1164, 1170, n. 9, 127 L.Ed.2d 500 (1994), quoting S.Rep. No. 94-473, p. 62 (1975) U.S.Code Cong. & Admin.News 1976, p. 5659. However, the factors enumerated in § 107 are not meant to be exclusive: “Since the doctrine is an equitable rule of reason, no generally applicable definition is possible, and each case raising the question must be decided on its own facts.” Harper & Row Publishers v. Nation Enterprises, 471 U.S. 539, 560, 105 S.Ct. 2218, 2230, 85 L.Ed.2d 588 (1985), quoting H.R.Rep. No. 94-1476, p. 65, U.S.Code Cong. & Admin.News 1976, p. 5678; National Rifle Association v. Handgun Control Federation of Ohio, 15 F.3d 559, 561 (6th Cir.1994). Nor may the four statutory factors be treated in isolation, one from another. Campbell v. Acuff-Rose Music, supra, 510 U.S. at 577, 114 S.Ct. at 1170. All are to be explored and the results weighed together in light of the purposes of copyright. Id. The Court, therefore, will examine each of the four statutory factors as they apply to the facts of this case. I. THE PURPOSE AND CHARACTER OF THE USE The evidence of record in this case establishes that the TV program, “Stop the Violence II,” and the video of that program in which “Under" }, { "docid": "23375539", "title": "", "text": "copying and distribution that are tolerated as exceptions to copyright protection. The 1976 Copyright Act codified this judicial doctrine at 17 U.S.C.A. § 107 (1977) without significantly altering it. The statute divides into a “preamble” and a list of factors to consider during the search for fair use: [T]he fair use of a copyrighted work, including such use by reproduction in copies ... 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 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.A. § 107 (1977). TV News Clips argued in the district court that its use of the news broadcast was a fair use of the material because it served an important societal interest in full access to the news. The court rejected the fair use defense without considering the four statutory factors because TV News Clips did not copy and distribute the material for purposes such as the ones listed in the preamble. The district court reasoned that since TV News Clips’ use was not “inherently productive or creative,” like each of the preamble uses, analysis of the four factors was unnecessary. We agree with TV News Clips that the district court should have considered the four factors set out in the statute. The statute uses mandatory language to the effect that in a fair use determination, the “factors to be considered shall include” (emphasis added) the four listed. The preamble merely illustrates the sorts of uses likely to qualify as fair uses under the four listed factors. The approach taken by" }, { "docid": "23207894", "title": "", "text": "of copyright.” Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 578, 114 S.Ct. 1164, 1171, 127 L.Ed.2d 500 (1994). The fair use defense “permits courts to avoid rigid application of the copyright statute when, on occasion, it would stifle the very creativity which that law is designed to foster.” Iowa State Univ. Research Found., Inc. v. American Broadcasting Cos., 621 F.2d 57, 60 (2d Cir.1980). In § 107 of the 1976 Copyright Act, Congress laid down four factors to be considered and weighed by the courts in determining if a fair use defense exists in a given case: (1) the purpose and character of the accused use; (2) the nature of the copyrighted work; (3) the importance of the portion used in relation to the copyrighted work as a whole; and (4) the effect of the accused use on the potential market for or value of the copyrighted work. 17 U.S.C. § 107. Congress viewed these four criteria as guidelines for “balancing the equities,” not as “definitive or determinative” tests. H.R.Rep. No. 94-1476, 94th Cong., 2d Sess. 65 (1976), reprinted in 1976 U.S.C.C.A.N. 5659, 5679. Congress observed that “since the doctrine [of fair use] is an equitable rule of reason, no generally applicable definition is possible.” Id. The four fair use factors “are to be ... weighed together, in light of the objectives of copyright ‘to promote the progress of science and the useful arts.’ ” Id. We now examine each factor. A The first factor in a fair use inquiry is “the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes.” § 107(1). While this inquiry does not specify which purpose might render a given use “fair,” the preamble to § 107 provides an illustrative, though not limitative, listing which includes “criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research.” § 107. Under this factor, the inquiry is whether The Cat NOT in the Hat! merely supersedes the Dr. Seuss creations, or whether and to what extent the new work is “transformative,”" }, { "docid": "20292184", "title": "", "text": "a joint author, or an exemption to liability under the AWCPA. I. Fair Use 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.” 17 U.S.C. § 107. “The fair use doctrine thus ‘permits [and requires] courts to avoid rigid application of the copyright statute when, on occasion, it would stifle the very creativity which the law is designed to foster.’ ” Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 577, 114 S.Ct. 1164, 127 L.Ed.2d 500 (1994) (alteration in original) (citation omitted). Fair use is a mixed question of law and fact. Harper & Row, Publishers, Inc. v. Nation Enter., 471 U.S. 539, 560, 105 S.Ct. 2218, 85 L.Ed.2d 588 (1985). Because “the doctrine is an equitable rule of reason, no generally applicable definition is possible, and each case raising the question must be decided on its own facts.” Id. at 560, 105 S.Ct. 2218 (citation omitted). Section 107 requires courts to consider four nonexclusive factors when evaluating fair use: (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. Each factor is “to be explored, and the results weighed together, in light of the purposes of copyright.” Campbell, 510 U.S. at 577, 114 S.Ct. 1164. A. Purpose and Character of the Infringing Use When evaluating the purpose and character of the use, one must consider “whether the new work merely ‘supersede^] the objects’ of the original creation or instead adds something new, with a further purpose or different character, altering the first with new expression, meaning, or message; it asks, in other words, whether and to what extent the new work is ‘transformative.’ ” Id. at 579, 114 S.Ct." }, { "docid": "8435972", "title": "", "text": "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. The fair use doctrine calls for a case-by-ease analysis. Campbell, 510 U.S. at -, 114 S.Ct. at 1170. All of the factors “are to be explored, and the results weighed together, in light of the purposes of copyright.” Id. 510 U.S. at - - -, 114 S.Ct. at 1170-71. a. First Factor: Purpose and Character of the Use The first statutory factor looks to the purpose and character of the defendant’s use. Erlich argues that his use was criticism, which is one of those uses listed in the preamble to section 107. Similarly, Erlich maintains that his use was meant to “evoke discussion regarding various Scientology philosophies.” Mot. To Dissolve at 22. Use for the purpose of criticism weighs in favor of fair use. See New Era, 904 F.2d at 156-57 (using Hubbard’s works in critical biography meets first factor for fair use). Plaintiffs contest Erlich’s characterizations of his use, claiming that most of Erlich’s postings were verbatim copies, with little or no added comment or criticism. Plaintiffs further contend that Erlich’s purpose was spite or some other destructive reason. However, plaintiffs give no explanation as to why Erlich’s purpose was other than to criticize or to evoke discussion regarding Scientology. Because there is insufficient evidence to support plaintiffs’ claim that Erlich’s copying was made out of spite or for other destructive reasons, the court will assume Erlich’s intended purpose was criticism or comment. Transformative Use Plaintiffs’ argument that the amount of added criticism belies Erlich’s critical purpose can also be construed as an attack on the “transformative” nature of Erlich’s use. In Campbell, the Supreme Court held that the central purpose of the first inquiry is to determine whether the new work is transformative (also described as “productive”), that is, whether it “adds something new, with a further" }, { "docid": "1782423", "title": "", "text": "207, 236, 110 S.Ct. 1750, 109 L.Ed.2d 184 (1990)) (alteration in original). Congress codified the common law of fair use in 17 U.S.C. § 107, which provides: 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 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. 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. We must be flexible in applying a fair use analysis; it “is not to be simplified with bright-line rules, for the statute, like the doctrine it recognizes, calls for case-by-case analysis.... Nor may the four statutory factors be treated in isolation, one from another. All are to be explored, and the results weighed together, in light of the purposes of copyright.” Campbell, 510 U.S. at 577-78, 114 S.Ct. 1164; see also Kelly, 336 F.3d at 817-18. The purpose of copyright law is “[t]o promote the Progress of Science and useful Arts,” U.S. Const, art. I, § 8, cl. 8, and to serve “ ‘the welfare of the public.’ ” Sony Corp. of Am. v. Universal City Studios, Inc., 464 U.S. 417, 429 n. 10, 104 S.Ct. 774, 78 L.Ed.2d 574 (quoting H.R.Rep. No. 2222, 60th Cong., 2d Sess. 7 (1909)). In applying the fair" }, { "docid": "16585314", "title": "", "text": "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 for the copyrighted work. 17 U.S.C. § 107; see also Campbell, 510 U.S. at 577, 114 S.Ct. 1164. All factors listed above are “to be explored, and the results weighed together, in light of the purposes of copyright.” Campbell, 510 U.S. at 578, 114 S.Ct. 1164 (citations omitted). Since fair use is an affirmative defense, the proponent, here the plaintiff, carries the burden of proof in demonstrating fair use. Campbell, 510 U.S. at 590, 114 S.Ct. 1164 (citing Harper & Row Publishers, Inc. v. Nation Enters., 471 U.S. 539, 561, 105 S.Ct. 2218, 85 L.Ed.2d 588 (1985); H.R.Rep. No. 102-836, p. 3 n. 3 (1992)). a. Purpose and Character of Use The first factor in a fair use enqui-ry is “the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes.” Campbell, 510 U.S. at 578, 114 S.Ct. 1164; 17 U.S.C. § 107. The Supreme Court has stated The enquiry here may be guided by the examples given in the preamble to § 107, looking to whether the use is for criticism, or comment, or news reporting, and the like.... The central purpose of this determination is to see ... whether and to what extent the new work is ‘transformative.’ Although such transformative use is not absolutely necessary for a finding of fair use, the goal of copyright, to promote science and the arts, is generally furthered by the creation of transformative works. Such works lie at the heart of the fair use doctrine’s guarantee of breathing space within the confines of copyright, and the more transformative the new work, the less will be the significance of other factors, like commercialism, that may weigh against a finding of fair use. Campbell, 510 U.S. at 578, 114 S.Ct. 1164 (internal citations omitted). The commercial or nonprofit educational character" }, { "docid": "5214927", "title": "", "text": "codified in the Copyright Act of 1976, which lists four non-exclusive factors that must be considered in determining fair use.- Under the statute, [T]he 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. 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 the statute indicates, and as the Supreme Court and our court have recognized, the fair use' determination is an open-ended and context-sensitive inquiry. Campbell, 510 U.S. at 577-78, 114 S.Ct. 1164; Blanch, 467 F.3d at 251. The statute “employs the terms ‘including’ and ‘such as’ in the preamble paragraph to indicate the illustrative and not limitative function of the examples given, which thus provide only general guidance about the sorts of copying that courts and Congress most commonly had found to be fair uses.” Campbell, 510 U.S. at 577-78, 114 S.Ct. 1164 (quotation marks and citation omitted). The “ultimate test of fair use ... is whether the copyright law’s goal of ‘promoting the Progress of Science and useful Arts’ ... would be better served by allowing the use than by preventing it.” Castle Rock, 150 F.3d at 141 (brackets and citation omitted). The first statutory factor to consider, which addresses the manner in which the copied work is used, is “[t]he heart of the fair use inquiry.” Blanch, 467 F.3d at 251. We ask whether , the new work merely ‘supersedes the objects’ of the original creation, or instead adds something new, with a further purpose or different character, altering the" }, { "docid": "22252367", "title": "", "text": "in relation to the copyrighted work as a whole; and (4) the effect of the use upon the potential market for or value of thé copyrighted work. 17 U.S.C. § 107. This section “intended that courts continue the common law tradition of fair use adjudication” and “permits and requires courts to avoid rigid application of the copyright statute, when, on occasion, it would stifle the very creativity which that law is designed to foster.” Campbell, 510 U.S. at 577, 114 S.Ct. 1164 (quotation marks omitted). Fair use analysis, therefore, always “calls for case-by-case analysis.” Id. The fair use examples provided in § 107 are “illustrative and not limitative” and “provide only general guidance about the sorts of copying that courts and Congress most commonly had found to be fair uses.” Id. at 577-78, 114 S.Ct. 1164. Similarly, the four listed statutory factors in § 107 guide but do not control our fair use analysis and “are to be explored, and the results weighed together, in light of the purposes of copyright.” Id.; see 4 Nimmer § 13.05[A], at 13-153 (“[T]he factors contained in Section 107 are merely by way of example, and are not an exhaustive enumeration.”). The ultimate test of fair use, therefore, is whether the copyright law’s goal of “promoting] the Progress of Science and useful Arts,” U.S. Const., art. I, § 8, cl. 8, “would be better served by allowing the use than by preventing it.” Arica, 970 F.2d at 1077. A. Purpose/Character of Use The first fair use factor to consider is “the purpose and character of the [allegedly infringing] use, including whether such use is of a commercial nature or is for nonprofit educational purposes.” 17 U.S.C. § 107(1). That The SAT’s use is commercial, at most, “tends to weigh against a finding of fair use.” Campbell, 510 U.S. at 585, 114 S.Ct. 1164 (quotation marks omitted); Texaco, 60 F.3d at 921. But we do not make too much of this point. As noted in Campbell, “nearly all of the' illustrative uses listed in the preamble paragraph of § 107, including news reporting, comment, criticism," }, { "docid": "8963799", "title": "", "text": "facie showing of infringement, however, by demonstrating that their copying is protected by the fair use doctrine. See Tufenkian Import/ Export Ventures, Inc. v. Einstein Moomjy, Inc., 338 F.3d 127, 131 (2d Cir.2003); Infinity Broad. Corp. v. Kirkwood, 150 F.3d 104, 107 (2d Cir.1998). The factors relevant to determining whether fair use applies to a particular case are set forth in 17 U.S.C. § 107, which provides: Notwithstanding the provisions of sections 106 and 106A, 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. 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. 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. Although defendants bear the burden of proving that their use was fair, see Infini ty, 150 F.3d at 107, they need not establish that each of the factors set forth in § 107 weighs in their favor. Wright v. Warner Books, Inc., 953 F.2d 731, 740 (2d Cir.1991). Instead, all factors must be explored and the results weighed together in light of the purposes of copyright and the fair use defense. See Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 578, 114 S.Ct. 1164, 127 L.Ed.2d 500 (1994). B. Defendants’ Fair Use Defense At the core of this appeal is the proper weighing, in a copyright infringement suit, of the first of the four statutory fair use factors after Harper & Row, 471 U.S. at 539, 105 S.Ct. 2218. We" }, { "docid": "22594518", "title": "", "text": "Id. at 577, 114 S.Ct. 1164 (quoting Stewart v. Abend, 495 U.S. 207, 236, 110 S.Ct. 1750, 109 L.Ed.2d 184 (1990)) (alteration in original). Congress codified the common law of fair use in 17 U.S.C. § 107, which provides: 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 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. 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. We must be flexible in applying a fair use analysis; it “is not to be simplified with bright-line rules, for the statute, like the doctrine it recognizes, calls for case-by-case analysis.... Nor may the four statutory factors be treated in isolation, one from another. All are to be explored, and the results weighed together, in light of the purposes of copyright.” Campbell, 510 U.S. at 577-78, 114 S.Ct. 1164; see also Kelly, 336 F.3d at 817-18. The purpose of copyright law is “[t]o promote the Progress of Science and useful Arts,” U.S. Const, art. I, § 8, cl. 8, and to serve “ ‘the welfare of the public.’ ” Sony Corp. of Am. v. Universal City Studios, Inc., 464 U.S. 417, 429 n. 10, 104 S.Ct. 774, 78 L.Ed.2d 574 (quoting H.R.Rep." } ]

[ { "docid": "23173806", "title": "", "text": "which the district courts have original jurisdiction founded on a claim or right arising under the Constitution, treaties or laws of the United States shall be removable without regard to the citizenship or residence of the parties.” Avco maintains that this case does not come within the scope of this removal authorization because its claim does not arise under the laws of the United States and further that Section 4 of the Norris-La Guardia Act, 29 U.S.C., Section 104, withdraws jurisdiction from Federal Courts to grant the injunctive relief sought in the complaint. ,We cannot accept the basic premise of Avco’s argument that its action is based solely upon a State created right. Section 301 of the Labor Management Relations Act, 29 U.S.C., Section 185, confers jurisdiction upon the District Court without regard to diversity of citizenship or jurisdictional amount to enforce collective bargaining agreements in industries affecting interstate commerce. Textile Workers Union of America v. Lincoln Mills, 353 U.S. 448, 77 S.Ct. 912, 1 L.Ed.2d 972 (1957), held that Federal substantive law preemptively applies in suits under Section 301, the Court stating: “The question then is, what is the substantive law to be applied in suits under § 301(a)? We conclude that the substantive law to apply in suits under § 301(a) is federal law, which the courts must fashion from the policy of our national labor laws. * * * “Federal interpretation of the federal law will govern, not state law. Cf. Jerome v. United States, 318 U.S. 101, 104 [63 S.Ct. 483, 87 L.Ed. 640], But state law, if compatible with the purpose of § 301, may be resorted to in order to find the rule that will best effectuate the federal policy (Citations omitted). Any state law applied, however, will be absorbed as federal law and will not be an independent source of private rights.” This enunciated principle was reaffirmed in Local 174, Teamsters, etc. v. Lucas Flour Co., 369 U.S. 95, p. 103, 82 S.Ct. 571, p. 576, 7 L.Ed.2d 593 (1962) : “The dimensions of § 301 require the conclusion that substantive principles of" } ]

[ { "docid": "836614", "title": "", "text": "merging districts is a breach of the provisions of the International's constitution relating to changes in the boundaries of districts. The basic question is whether Congress, by the enactment of § 301(a), intended to confer jurisdiction over internal union affairs which have no connection with industrial peace or to a collective bargaining contract. The legislative history of § 301(a) has been considered in a number of cases. See e. g. Association of Westinghouse Salaried Employees v. Westinghouse Electric Corp., 348 U.S. 437, 75 S.Ct. 488, 99 L.Ed. 1256; Textile Workers Union of America v. Lincoln Mills of Alabama, 353 U.S. 448, 77 S.Ct. 912, 1 L.Ed.2d 972; and Parks v. International Brotherhood of Electrical Workers, 4 Cir., 314 F.2d 886, 915-916, cert. denied 372 U.S. 976, 83 S.Ct. 1111, 10 L.Ed.2d 142. The most that can be said of that history is that Congress did not anticipate the problem which is before us. 314 F.2d at 916. See Parks, Textile Workers Union of America v. Lincoln Mills of Alabama, 353 U.S. 448, 77 S.Ct. 912, 1 L.Ed.2d 972; Dowd Box Co., Inc. v. Courtney, 368 U.S. 502, 82 S.Ct. 519, 7 L.Ed.2d 483; Local 174, Teamsters, Chauffeurs, Warehousemen & Helpers of America v. Lucas Flour Co., 369 U.S. 95, 82 S.Ct. 571, 7 L.Ed.2d 593, and Atkinson v. Sinclair Refining Co., 370 U.S. 238, 82 S.Ct. 1318, 8 L.Ed. 2d 462, all recognize § 301(a) jurisdiction as applying to suits arising out of collective bargaining contracts. Retail Clerks International Association v. Lion Dry Goods, Inc., 369 U.S. 17, 82 S.Ct. 541, 7 L.Ed.2d 503, upheld § 301(a) jurisdiction over a suit by a local union to enforce a strike settlement agreement. Both Retail Clerks, 369 U.S. at 28, 82 S.Ct. 541, and Lincoln Mills, 353 U.S. at 455, 77 S.Ct. 912, say that federal policy established by § 301(a) is to promote industrial peace by permitting enforcement in federal courts of contracts made by labor organizations. To the same effect is Smith v. Evening News Association, 371 U.S. 195, 200, 83 S.Ct. 267, 9 L.Ed.2d 246, which also rejects the" }, { "docid": "17647659", "title": "", "text": "Viewing this substitution as having cured any defect that previously may have existed in the notice of appeal, we treat the four appellant unions as though they were defendants from the outset of this case. Cf. Fed.R.Civ.P. 17(a) (substitution of real party in interest for party prosecuting a suit has same effect as if action had been commenced in the name of real party in interest). The four appellant unions claim that section 301 of the Labor-Management Relations Act, which gives district courts jurisdiction over “[s]uits for violation of contracts between an employer and a labor organization,” 29 U.S.C. § 185(a) (1988), does not apply here because the underlying suit does not concern a violation of a labor contract, but rather a disagreement over the meaning of an arbitration award. The appellant unions also contend that this disagreement does not involve a breach of the duty of fair representation but is solely an internal union matter that section 301 does not reach. We disagree with both contentions. Enacted in 1947, section 301 gives federal courts jurisdiction to enforce collective bargaining agreements, and in particular to enforce agreements to arbitrate labor disputes. See Hines v. Anchor Motor Freight, Inc., 424 U.S. 554, 562-63, 96 S.Ct. 1048, 1055-56, 47 L.Ed.2d 231 (1976); Textile Workers Union v. Lincoln Mills, 353 U.S. 448, 451-56, 77 S.Ct. 912, 915-18, 1 L.Ed.2d 972 (1957) (discussing legislative history of section 301). It seeks principally to promote “industrial peace,” see Lincoln Mills, 353 U.S. at 454-55, 77 S.Ct. at 916-17, but it also permits suits “seeking to vindicate ‘uniquely personal’ rights of employees such as wages, hours, overtime pay, and wrongful discharge.” Hines, 424 U.S. at 562, 96 S.Ct. at 1055 (citation omitted). In several early cases, the Supreme Court ruled that Congress intended section 301 to facilitate the development of a uniform body of federal labor law regarding collective bargaining agreements. See Local 174, Teamsters v. Lucas Flour Co., 369 U.S. 95, 103-04, 82 S.Ct. 571, 576-77, 7 L.Ed.2d 593 (1962); Lincoln Mills, 353 U.S. at 456-57, 77 S.Ct. at 917-18. Section 301, of course, does not" }, { "docid": "8073239", "title": "", "text": "the fact that NWA had a stronger case against IAM than it has against ALPA is no reason for refusing to require the parties to submit the issue to arbitration. It may mean that NWA will not prevail in this ease as it did in the earlier one, but “[a]n order to arbitrate * * * should not be denied unless it may be said with positive assurance that the arbitration clause is not susceptible of an interpretation that covers the asserted dispute. Doubts should be resolved in favor of coverage.” See, United Steelworkers v. Warrior & Gulf Navigation Co., 363 U.S. 574, 582-583, 80 S.Ct. 1347, 1353, 4 L.Ed.2d 1409 (1960); Textile Workers Union v. Lincoln Mills, 353 U.S. 448, 77 S.Ct. 912, 1 L.Ed.2d 972 (1957). We are reluctant to further discuss whether or not ALPA has implicitly agreed to refrain from the conduct of the type it engaged in here. To do so might leave the arbiter with the impression that we have formed a view as to how the matter should be decided, and this we do not want to do. See, Local 174 Teamsters, Chauffeurs, Warehousemen and Helpers of America v. Lucas Flour Co., 369 U.S. 95, 106, 82 S.Ct. 571, 7 L.Ed.2d 593 (1962). The trial court urges: Northwest Airlines, Inc. v. Air Line Pilots Association, 325 F.Supp. 994 (D. Minn., Dec. 22, 1970). “ * * if there is a no strike clause it will be by operation of the ‘minor dispute’ provision of the Railway Labor Act — a statutory provision enacted by Congress. Interpretation of Federal statutes is reserved to the Federal Courts and Administrative Agencies. It is not an appropriate function of a labor arbitrator. * * *” We agree that the interpretation of federal statutes is reserved to the federal courts and administrative agencies, see, Detroit and Toledo Shore Line R. Co. v. Transportation Union, 396 U.S. 142, 158, 90 S.Ct. 294, 24 L.Ed.2d 325 (1969), and is not an appropriate function of a System Adjustment Board. But we have not asked the Board to undertake an improper function" }, { "docid": "22149071", "title": "", "text": "usurp the Local’s role in collective bargaining. This court is of the opinion that even assuming that an “evergreen” clause would be unilaterally terminable under § 8(d) of the LMRA, 29 U.S.C.A. § 158(d), it was still within the right of the IP to insist, as a matter of policy within the union organization, that such a clause be accepted. Even if we assume the correctness of the District Court’s obitur dictum that the “yellow sheet” clause was illegal, in the sense that it was unenforceable, it was certainly not so evil or contra bona mores as to vitiate the IP’s constitutional powers to control' collective bargaining. It has been argued, however, that the “evergreen” clause is defective, perhaps illegal, as a divestiture of the statutorily protected power of the union to strike. “The presence of economic weapons in reserve, and their actual exercise on occasion by the parties,” the Supreme Court has said, “is part and parcel of the system that the Wagner and Taft-Hartley Acts have recognized.” NLRB v. Insurance Agents’ International Union, 361 U.S. 477, 489, 80 S.Ct. 419, 427, 4 L.Ed.2d 454 (1960). But it is not the purpose of the law to impose a straight jacket on the format of collective bargaining or to require that the parties always maintain economic force as an alternative. The Court has in fact recognized that economic weapons may be relinquished, at least for a time, and particularly in exchange for an agreement to settle disputes by arbitration, see Textile Workers Union of America v. Lincoln Mills, 353 U.S. 448, 455, 77 S.Ct. 912, 1 L.Ed. 2d 972 (1957); Local 174, Teamsters v. Lucas Flour Co., 369 U.S. 95, 104-106, 82 S.Ct. 571, 7 L.Ed.2d 593 (1962), which is the touchstone of the practice of peaceful industrial self-government. See United Steelworkers v. Warrior & Gulf Navigation Co., 363 U.S. 574, 577-582, 80 S.Ct. 1347, 5 L.Ed.2d 1409 (1960). Submission to the Council is not classical arbitration, but resembles it sufficiently to fall within the ambit of this policy. Even if a union cannot be compelled to relinquish economic weapons" }, { "docid": "22149072", "title": "", "text": "361 U.S. 477, 489, 80 S.Ct. 419, 427, 4 L.Ed.2d 454 (1960). But it is not the purpose of the law to impose a straight jacket on the format of collective bargaining or to require that the parties always maintain economic force as an alternative. The Court has in fact recognized that economic weapons may be relinquished, at least for a time, and particularly in exchange for an agreement to settle disputes by arbitration, see Textile Workers Union of America v. Lincoln Mills, 353 U.S. 448, 455, 77 S.Ct. 912, 1 L.Ed. 2d 972 (1957); Local 174, Teamsters v. Lucas Flour Co., 369 U.S. 95, 104-106, 82 S.Ct. 571, 7 L.Ed.2d 593 (1962), which is the touchstone of the practice of peaceful industrial self-government. See United Steelworkers v. Warrior & Gulf Navigation Co., 363 U.S. 574, 577-582, 80 S.Ct. 1347, 5 L.Ed.2d 1409 (1960). Submission to the Council is not classical arbitration, but resembles it sufficiently to fall within the ambit of this policy. Even if a union cannot be compelled to relinquish economic weapons perpetually, there is nothing in the law to suggest that it may not voluntarily forebear from the use of force as long as it chooses to do so. At most, the International can be said to have attempted to compel one of its component bodies to do this. It is not for the courts to say that a superior union body cannot require its subordinate to look to high level bargaining rather than to the use of economic force. Actually, adoption of the more stringent Council clause would not surrender the strike weapon irretrievably; it would merely fortify the provision in the Constitution vesting control over this weapon in the International. It would remain within the power of the International to restore the strike weapon to a local. The District Court found that “[t]he IP had given his consent to a number of strikes where a Council clause appeared in the contract * * 203 F.Supp. at 302 n. 26. Apparently this was done without disturbing the Council machinery. Moreover, the International could work within" }, { "docid": "18624810", "title": "", "text": "Francisco Railway, supra, Conley v. Gibson, supra, Slocum v. Delaware, Lackawanna & Western Railroad, 339 U.S. 239, 70 S.Ct. 577, 94 L.Ed. 795 (1950) (Railway Labor Act). . Local 174, Teamsters, Chauffeurs, Warehousemen and Helpers of America v. Lucas Flour Co., 369 U.S. 95, 82 S.Ct. 571, 7 L.Ed.2d 593 (1962) (Labor Management Relations Act); Brotherhood of Railroad Trainmen v. Chicago River & Indiana Railroad, supra (Railway Labor Act). . United Steelworkers of America v. Enterprise Wheel and Car Corp., 363 U.S. 593, 80 S.Ct. 1358, 4 L.Ed.2d 1424 (1960) (Labor Management Relations Act); Gunther v. San Diego & Arizona Eastern Railway, 382 U.S. 257, 86 S.Ct. 368, 15 L.Ed.2d 308 (1965) (Railway Labor Act). . Boys Market, Inc. v. Retail Clerks Union, Local 770, 398 U.S. 235, 90 S.Ct. 1583, 26 L.Ed.2d 199 (1970) (Labor Management Relations Act); Brotherhood of Railroad Trainmen v. Chicago River & Indiana Railroad, supra (Railway Labor Act). The Court has accommodated the general and literal terms of the anti-injunction provisions of the Norris-LaGuardia Act, 29 U.S.C. § 104, with the purposes and policies of the Labor Management Relations Act and Railway Labor Act. . Atkinson v. Sinclair Refining Co., 370 U.S. 238, 82 S.Ct. 1318, 8 L.Ed.2d 462 (1962) (Labor Management Relations Act); Denver and Rio Grande Western Railroad v. Brotherhood of Railroad Trainmen, 387 U.S. 556, 87 S.Ct. 1746, 18 L.Ed.2d 954 (Railway Labor Act). . See, for example, Steele v. Louisville & Nashville Railroad, supra. . 321 U.S. 50, 64 S.Ct. 413, 88 L.Ed. 534 (1944). . Id. at 61 n. 18, 64 S.Ct. at 419 n. 18. . 394 U.S. at 383, 89 S.Ct. at 1117. . See also International Brotherhood of Electrical Workers v. Foust, supra. However, the Acts are not wholly synonymous and cannot be interchanged .indiscriminately. See Brotherhood of Railroad Trainmen v. Jacksonville Terminal Co., 394 U.S. at 383, 89 S.Ct. at 1117. . International Brotherhood of Electrical Workers v. Foust, 442 U.S. at 48, 49, 99 S.Ct. at 2126, 2127. . International Brotherhood of Electrical Workers v. Foust, 442 U.S. at 50, 51, 99 S.Ct. at 2127." }, { "docid": "1300888", "title": "", "text": "require that this Court consider and interpret several agreements among LIUNA, Local 277, and Local 1306. In essence, plaintiff's claim is that Local 1306’s debt to her was assumed by either LIUNA or Local 277 by virtue of the agreements involved in the merger, and, therefore, it is a violation of one or more of these agreements for both defendants to deny this obligation. Only by interpreting the agreements involved in the merger can this Court determine which defendant, if either, is obligated to pay the plaintiff the money she seeks. The plaintiff’s claims appear to implicate the interpretation of contracts between labor organizations, thus falling within the complete pre-emption of state law by federal law concerning Section 301(a). The Supreme Court has addressed similar jurisdictional problems in the context of collective bargaining agreements. See, e.g., Caterpillar Inc. v. Williams, 482 U.S. 386, 107 S.Ct. 2425, 96 L.Ed.2d 318 (1987); International Broth. of Electrical Workers v. Hechler, 481 U.S. 851, 107 S.Ct. 2161, 95 L.Ed.2d 791 (1987). The Court has held that, by enacting Section 301, Congress intended that federal courts fashion a body of federal common law for resolving disputes arising out of labor contracts. See Textile Workers Union v. Lincoln Mills, 353 U.S. 448, 456-57, 77 S.Ct. 912, 917-18, 1 L.Ed.2d 972 (1957). The need for uniformity in the interpretation of such contracts requires that federal law be used as the exclusive rule of decision within the entire area covered by the statute. See Local 174, Teamsters, Chauffeurs, Warehousemen & Helpers v. Lucas Flour Co., 369 U.S. 95, 103-04, 82 S.Ct. 571, 576-77, 7 L.Ed.2d 593 (1962). While this requires federal law to be applied in cases “on the contract,” federal law must also be applied in cases implicating the interpretation of labor contracts. For example, in Allis-Chalmers Corp. v. Lueck, 471 U.S. 202, 105 S.Ct. 1904, 85 L.Ed.2d 206 (1985), the Court considered whether a tort claim by an employee against an employer for bad faith handling of disability benefits due under a collective bargaining agreement required application of federal common law. The Court held that a" }, { "docid": "22898880", "title": "", "text": "and delicate responsibility, which the Congress committed primarily to the National Labor Relations Board, subject to limited judicial review.’ ” 373 U.S. at 236, 83 S.Ct. at 1150. There is an undeniable national labor policy to promote arbitration. Textile Workers v. Lincoln Mills, 353 U.S. 448, 77 S.Ct. 923, 1 L.Ed.2d 972, see also Boys Markets, Inc. v. Retail Clerks Local 770, 398 U.S. 235, 90 S.Ct. 1583, 26 L.Ed.2d 199. No-strike pledges constitute the quid pro quo for a binding arbitration agreement, Lincoln Mills, 353 U.S. at 455, 77 S.Ct. 923; Boys Markets, 398 U.S. at 247-248, 90 S.Ct. 1583; United Steelworkers of America v. American Manufacturing Co., 363 U.S. 564, 567, 80 S.Ct. 1343, 4 L.Ed.2d 1403, and may even be enforced by injunction notwithstanding § 4 of the Norris-LaGuardia Act. Boys Market, 398 U.S. at 249-253, 90 S.Ct. 1583. A no-strike pledge may even be implied. Teamsters Local 174, Teamsters, Chauffeurs, etc. v. Lucas Flour Co., 369 U.S. 95, 82 S.Ct. 571, 7 L.Ed.2d 593. Since the contract before us contains an express no-strike pledge, we think it is reasonable to defer to the Board’s broad interpretation of that clause as applied to the facts before it. Its interpretation is entirely consistent with the national labor policy and with the union’s own understanding of the agreement. In addition to the argument that the Board misconstrued the contract, Moore argues that in any event the discharge was not predicated on his breach of contract. The record does indicate that additional factors motivated the company and the noi-strike clause was not mentioned in the suspension letter on October 4. However, the discharge letter on October 17 did rely, in part, on the charge that Moore was encouraging a strike and a boycott, and the letter to the union on the same day specifically identified the relevant provision of the contract. The evidence does not support Moore’s contention that his breach of the contract was a subsequently contrived justification for the October 17 discharge. On the contrary, it is clear that the Board’s decision was supported by substantial evidence. On" }, { "docid": "13541504", "title": "", "text": "301, 29 U.S.C. § 185 (1970), struck by the Supreme Court in Boys Markets v. Retail Clerks Union Local 770, 1970, 398 U.S. 235, 90 5. Ct. 1583, 26 L.Ed.2d 199. The Norris-LaGuardia Act was designed to prevent federal judges from halting strikes by means of sweeping injunctions. In broad language the Act removed from federal courts jurisdiction to issue injunctions “in any case involving or growing out of any labor dispute to prohibit any person or persons participating or interested in such dispute .. . from doing, whether singly or in concert, any of the following acts: (a) Ceasing or refusing to perform any work or to remain in any relation of employment . . . ”. Norris-LaGuardia Act § 4(a), 29 U.S.C. § 104(a) (1970). The Act established procedural safeguards in cases when injunctions were permitted. Norris-LaGuardia Act §§ 7 — 9, 29 U.S.C. §§ 107-09, 1970. In Textile Workers Union v. Lincoln Mills, 1957, 353 U.S. 448, 77 S.Ct. 912, 1 L.Ed.2d 972, the Supreme Court held that § 301 of the 1947 Taft-Hartley Act authorized federal courts to fashion a body of substantive federal labor law. The Court observed that federal law favored arbitration of labor disputes. An order to the employer to arbitrate was not a prohibited injunction under the Norris-LaGuardia Act, because refusal to arbitrate was not “part and parcel of the abuse against which the Act was aimed”. Id at 458, 77 S.Ct. at 918. Indeed, said the court, the no-strike clause was the “quid pro quo” for the arbitration clause. Id. at 455, 77 S.Ct. 923. In 1960 the Court handed down the Steelworkers Trilogy, establishing a presumption of arbitrability of disputes, and admonishing unions and employers to arbitrate even frivolous claims. At that time, usually, it was the union seeking arbitration, and the employer resisting it. The “quid pro quo” rationale of Lincoln Mills was extended in Teamsters Local 174 v. Lucas Flour Company, 1962, 369 U.S. 95, 82 S.Ct. 571, 7 L.Ed.2d 593. In that case, a suit for damages for breach of contract under § 301, the Court held" }, { "docid": "22918092", "title": "", "text": "full play to the means chosen by parties to a collective bargaining agreement for settlement of their differences. United Steelworkers v. American Mfg. Co., 1960, 363 U.S. 564, 80 S.Ct. 1343, 4 L.Ed.2d 1403; see also Lodge No. 12, Dist. No. 37, Int’l Ass’n of Machinists v. Cameron Iron Works, Inc., 5 Cir., 1961, 292 F.2d 112, cert. den., 368 U.S. 926, 82 S.Ct. 361, 7 L.Ed.2d 190. In Textile Workers Union v. Lincoln Mills, 1957, 353 U.S. 448, 77 S.Ct. 912, 1 L.Ed.2d 972, the court effectuated the above policy by holding that a district court had jurisdiction and authority under § 301(a) to grant specific performance of the arbitration provisions contained in a collective bargaining agreement. The court also held that federal substantive law and not state law applied in such cases. See also Local 174, Teamsters, Chauffeurs, Warehousemen & Helpers v. Lucas Flour Co., 1962, 369 U.S. 95, 82 S.Ct. 571, 7 L.Ed.2d 593, on this latter point. Subsequent to Lincoln Mills, this policy of giving full play to the means chosen by the parties for resolving disputes has been given further shape in various Supreme Court opinions. Of the three available forums for the resolution of disputes — contractual grievance procedure such has arbitration, or the court, or the picket line — the Supreme Court has consistently sanctioned the one chosen by the parties in their collective agreement. Employers are denied access to the courts where the parties have previously chosen the arbitration remedy. Drake Bakeries v. Local 50, 1962, 370 U.S. 254, 82 S.Ct. 1346, 8 L.Ed.2d 474; United Steelworkers v. American Mfg. Co., supra; United Steelworkers v. Warrior & Gulf Navigation Company, 1960, 363 U.S. 574, 80 S.Ct. 1347, 4 L.Ed.2d 1409; United Steelworkers v. Enterprise Wheel & Car Corp., 1960, 363 U.S. 593, 80 S.Ct. 1358, 4 L.Ed.2d 1424. Likewise, a union has been denied access to the picket line where it has chosen arbitration. Teamsters Union v. Lucas Flour Co., supra. The court has opened the doors of the courthouse only when the parties have chosen this forum over the others. Smith" }, { "docid": "23538658", "title": "", "text": "court may conclude that removal is proper. The next step is for the court to determine whether or not the suit is preempted. IV. A. The Supreme Court has articulated several distinct preemption principles in the context of the labor laws. One principle, the Garmon rule, prohibits the states from regulating activities that are protected, or prohibited, or arguably so affected, by the NLRA. See San Diego Building Trades Council v. Garmon, 359 U.S. 236, 79 S.Ct. 773, 3 L.Ed.2d 775 (1959). Garmon preemption protects the primary jurisdiction of the National Labor Relations Board. A similar preemption principle precludes state regulation of conduct that Congress intended to be left unregulated. See Machinists v. Wisconsin Employment Relations Commission, 427 U.S. 132, 96 S.Ct. 2548, 49 L.Ed.2d 396 (1976). We are concerned here with a preemption principle distinct from those above— the preemptive effect of § 301. See Lincoln Mills, 353 U.S. 448, 77 S.Ct. 912, 1 L.Ed.2d 972 (1957). This last type of preemption is based upon the necessary federal protection of a uniform body of federal labor law. Local 174, Teamsters v. Lucas Flour, 369 U.S. 95, 103-04, 82 S.Ct. 571, 576-77, 7 L.Ed.2d 593 (1962). Consequently, unlike Garmon preemption, which balances state and federal interests, Allis-Chalmers Corp. v. Lueck, 471 U.S. 202, 213 n. 9, 105 S.Ct. 1904, 1913 n. 9, 85 L.Ed.2d 206 (1985), § 301 preemption requires that “incompatible doctrines of local law must give way to principles of federal labor law,” Lucas Flour, 369 U.S. at 102, 82 S.Ct. at 576 (footnote omitted); see also Lueck, 471 U.S. at 212-13, 105 S.Ct. at 1912. The cases applying other labor law preemption principles are, therefore, irrelevant to our determination here. See Gibson v. AT & T Technologies, Inc., 782 F.2d 686, 688-89 (7th Cir.), cert. denied, — U.S. -, 106 S.Ct. 3275, 91 L.Ed.2d 565 (1986). The Supreme Court has made clear that where the right to recovery depends on an interpretation of a collective bargaining agreement, § 301 requires federal law to govern. Lincoln Mills, 353 U.S. at 456, 77 S.Ct. at 918. In Lucas Flour," }, { "docid": "22253621", "title": "", "text": "serious as to impose— “ * * * the duty on the courts to make sure that the Act works. * * ” Circuit Judge Coleman, who filed a concurring opinion, disagreed rather vigorously that any such duty was imposed on the Courts. He stated: “Under our Constitutionally ordained form of Government, whether an Act works or fails is the concern of the Executive or Legislature, or both — not the courts.” We do not regard it as our function to enlarge on the plain language of a statute so as to impose on citizens obligations never intended by Congress, in order to make it work. Great reliance is placed upon Hutchings v. United Industries, Inc., 428 F.2d 303 (5th Cir. 1970), which was decided after our decision in the present case was announced. In our opinion Hutchings does not comport with Boys Markets, Inc. v. Retail Clerks Union, Local 770, 398 U.S. 235, 90 S.Ct. 1583, 26 L.Ed. 2d 199 (1970). In Boys Markets, Mr. Justice Brennan emphasized the importance of arbitration in the settlement of labor disputes. He said: “However, we have frequently noted, in such cases as Lincoln Mills, [353 U.S. 448, 77 S.Ct. 912, 1 L.Ed.2d 972] the Steelworkers [363 U.S. 564, 80 S. Ct. 1343, 4 L.Ed.2d 1403] Trilogy, and Lucas Flour, [369 U.S. 95, 82 S.Ct. 571, 7 L.Ed.2d 593] the importance which Congress has attached generally to the voluntary settlement of labor disputes without resort to self-help and more particularly to arbitration as a means to this end. Indeed, it has been stated that Lincoln Mills, in its exposition of § 301(a), ‘went a long way towards making arbitration the central institution in the administration of collective bargaining contracts.’ “The Sinclair [370 U.S. 195, 82 S.Ct. 1328, 8 L.Ed.2d 440] decision, however, seriously undermined the effectiveness of the arbitration technique as a method peacefully to resolve industrial disputes without resort to strikes, lockouts, and similar devices. Clearly employers will be wary of assuming obligations to arbitrate specifically enforceable against them when no similarly efficacious remedy is available to enforce the concomitant undertaking of" }, { "docid": "7309615", "title": "", "text": "denied unless it may be said with positive assurance that the arbitration clause is not susceptible of an interpretation that covers the asserted dispute. Doubts should be resolved in favor of coverage.” In Local 174, Teamsters, Chauffeurs, Warehousemen and Helpers of America, v. Lucas Flour Co., 369 U.S. 95, 82 S.Ct. 571, 7 L.Ed.2d 593, the Court found that there was no express no-strike clause in the bargaining agreement but nevertheless determined that the union had bargained away its right to strike upon the basis that it had bargained to resolve the dispute by binding arbitration. The Court states: “The collective bargaining contract expressly imposed upon both parties the duty of submitting the dispute in question to final and binding arbitration. In a consistent course of decisions the Courts of Appeals of at least five Federal Circuits have held that a strike to settle a dispute which a collective bargaining agreement provides shall be settled exclusively and finally by compulsory arbitration constitutes a violation of the agreement. The National Labor Relations Board has reached the same conclusion. W. L. Mead, Inc., 113 N.L.R.B. 1040. We approve that doctrine. To hold otherwise would obviously do violence to accepted principles of traditional contract law. Even more in point, a contrary view would be completely at odds with the basic policy of national labor legislation to promote the arbi-tral process as a substitute for economic warfare.” 369 U.S. 95, 105, 82 S.Ct. 571, 577, 7 L.Ed.2d 593. See also Boys Markets, Inc. v. Retail Clerk’s Union, 398 U.S. 235, 90 S.Ct. 1583, 26 L.Ed.2d 199; Northwest Airlines, Inc. v. Air Line Pilots Ass’n, 8 Cir., 442 F.2d 246, 249; Lodge 1327, International Association of Machinists & Aerospace Workers v. Fraser & Johnston Co., 9 Cir., 454 F.2d 88 (1971). The Board in our present case relied upon the picket line clause and the bargaining history with respect thereto to support its conclusion that the no-strike, no-lockout clause did not cover the present controversy. The bargaining history has heretofore been set out. The picket line clause ultimately agreed upon was inserted in the contract" }, { "docid": "222406", "title": "", "text": "from [indicating] how much[, courts] must spell out from conflicting indications of congressional will the area in which state action is still permissible.” Garner v. Teamsters, Chauffeurs & Helpers Local Union, 346 U.S. 485, 488, 74 5.Ct. 161, 98 L.Ed. 228 (1953). The relevant preemption doctrine in this case focuses on “whether Congress intended that the conduct involved be unregulated because [such conduct was] left to be controlled by the free play of economic forces.’ ” Lodge 76, Int’l Ass’n of Machinists and Aerospace Workers v. Wis. Employment Relations Comm’n, 427 U.S. 132, 140, 96 S.Ct. 2548, 49 L.Ed.2d 396 (1976) (quoting NLRB v. Nash-Finch Co., 404 U.S. 138, 144, 92 S.Ct. 373, 30 L.Ed.2d 328 (1971)). Machinists held that: neither States nor the [NLRB] is “afforded flexibility in picking and choosing which economic devices of labor and management shall be branded as unlawful.” ... [B]oth are without authority to attempt to “introduce some standard of properly ‘balanced’ bargaining power” or to define “what economic sanctions might be permitted negotiating parties in an ideal ‘or balanced’ state of collective bargaining.” Id. at 149-50, 96 S.Ct. 2548 (citations omitted) (quoting NLRB v. Ins. Agents’ Int’l Union, 361 U.S. 477, 497, 500, 80 S.Ct. 419, 4 L.Ed.2d 454 (1960)). That is, states may not “deny[ ] one party to an economic contest a weapon that Congress meant him to have available.” Id. at 150, 96 S.Ct. 2548. (internal quotation omitted). The “crucial inquiry” under Machinists is “whether the exercise of state authority to curtail or entirely prohibit self-help would frustrate effective implementation of the policies of the National Labor Relations Act.” N.Y. Tel. Co. v. N.Y. State Dep’t of Labor, 440 U.S. 519, 531, 99 S.Ct. 1328, 59 L.Ed.2d 553 (1979) (plurality opinion). Under Machinists, “States are therefore prohibited from imposing additional restrictions on economic weapons of self-help ... unless such restrictions presumably were contemplated by Congress.” Golden State Transit Corp. v. City of Los Angeles, 475 U.S. 608, 614-15, 106 S.Ct. 1395, 89 L.Ed.2d 616 (1986). In order to determine whether state action is preempted in this case, the court will" }, { "docid": "17647660", "title": "", "text": "jurisdiction to enforce collective bargaining agreements, and in particular to enforce agreements to arbitrate labor disputes. See Hines v. Anchor Motor Freight, Inc., 424 U.S. 554, 562-63, 96 S.Ct. 1048, 1055-56, 47 L.Ed.2d 231 (1976); Textile Workers Union v. Lincoln Mills, 353 U.S. 448, 451-56, 77 S.Ct. 912, 915-18, 1 L.Ed.2d 972 (1957) (discussing legislative history of section 301). It seeks principally to promote “industrial peace,” see Lincoln Mills, 353 U.S. at 454-55, 77 S.Ct. at 916-17, but it also permits suits “seeking to vindicate ‘uniquely personal’ rights of employees such as wages, hours, overtime pay, and wrongful discharge.” Hines, 424 U.S. at 562, 96 S.Ct. at 1055 (citation omitted). In several early cases, the Supreme Court ruled that Congress intended section 301 to facilitate the development of a uniform body of federal labor law regarding collective bargaining agreements. See Local 174, Teamsters v. Lucas Flour Co., 369 U.S. 95, 103-04, 82 S.Ct. 571, 576-77, 7 L.Ed.2d 593 (1962); Lincoln Mills, 353 U.S. at 456-57, 77 S.Ct. at 917-18. Section 301, of course, does not mention arbitration awards, but we think this is of no jurisdictional significance. The arbitration process gives “meaning and content” to the collective bargaining agreement; United Steelworkers v. Warrior & Gulf Navigation Co., 363 U.S. 574, 581, 80 S.Ct. 1347, 1352, 4 L.Ed.2d 1409 (1960), and the arbitration award here flowed directly from the arbitrator’s finding that the employer had violated the collective bargaining agreement. As the district court properly recognized, “the agreement is both the subject of the award’s analysis and the source of the award’s authority.” Wilkinson v. District No. 1-PCD/MEBA, No. 93-1137, at 4 (D.D.C. July 26, 1994) (memorandum and order finding jurisdiction under § 301). The plaintiff employees’ central claim — that PCD/MEBA must disburse the entire arbitration award to them and to certain other aggrieved union members — depends entirely on what rights these employees had under the collective bargaining agreement. The plaintiff employees are merely seeking judicial enforcement of what they assert are their contractual rights, as conclusively interpreted in the arbitration award. The appellant unions’ contention that section 301" }, { "docid": "8773285", "title": "", "text": "such an agreement would have been an unfair labor practice. 29 U.S.C. §§ 8(a)(5),-(d). We do not confront this problem, however, because we hold that an interest arbitration provision of a collective bargaining agreement is void as contrary to public policy, insofar as it applies to nonmandatory subjects. The effect to be given to collective bargaining agreements is a matter of federal law, to be determined on the basis of national labor policy. Local 174, Teamsters v. Lucas Flour Co., 369 U.S. 95, 103, 82 S.Ct. 571, 7 L.Ed.2d 593 (1962); Textile Workers Union v. Lincoln Mills, 353 U.S. 448, 456-57, 77 S.Ct. 912,1 L.Ed.2d 972 (1957). It is an important element of national labor policy that a party need not bargain, and need not agree, concerning nonmandatory issues. See Fibreboard Paper Products Corp. v. NLRB, 379 U.S. 203, 220-21, 85 S.Ct. 398, 13 L.Ed.2d 233 (1964) (Stewart, J., concurring); NLRB v. Borg-Warner Corp., 356 U.S. 342, 349, 78 S.Ct. 718, 2 L.Ed.2d 823 (1958); NLRB v. Pressmen Union 252, 543 F.2d 1161,1166 (5th Cir. 1976). The importance of preserving parties’ freedom to exclude nonmandatory subjects from labor agreements is acknowledged by the rule that “[b]y once bargaining and agreeing on a permissive subject, the parties ... do not make the subject a mandatory topic of future bargaining.” Chemical Workers Local 1 v. Pittsburgh Plate Glass Co., 404 U.S. 157, 187, 92 S.Ct. 383, 402, 30 L.Ed.2d 341 (1971). Thus, as applied to nonmandatory subjects, an interest arbitration provision is contrary to national labor policy because it deprives the parties of their right to insist on excluding nonmandatory subjects from the collective bargaining agreement. The Board previously has espoused the position we now adopt. See NLRB v. Pressmen Union 252, 543 F.2d 1161, 1169 (5th Cir. 1976). It is not clear whether any court has confronted this issue. The reported decisions enforcing interest arbitration clauses either involve mandatory subjects or do not indicate what matters were disputed. See Office Employees Local 42 v. Local 174, UAW, 524 F.2d 1316 (6th Cir. 1975) (per curiam) (issues not described); Mailers Local 92" }, { "docid": "22918091", "title": "", "text": "the Company and the Union and the aggrieved.” It was stipulated that the grievance involving the alleged wrongful discharge of appellant was filed and processed through the four steps of the grievance procedure which ended with a denial of the claim by the plant manager. There is no contention by either party that a claim for wrongful discharge was not within the class of grievances to be handled in this manner. The fifth step, which would have required a letter from the international vice president of the union to the plant manager to the effect that the union intended to strike in protest of his decision, was not taken. This suit followed. Congress explicitly stated, by way of a policy, in § 203(d) of the Taft-Hartley Act, 29 U.S.C.A. § 173(d), that in settling grievance disputes, the Act contemplated that the method agreed upon by parties to collective bargaining agreements should be the means of settling such disputes. In suits under § 301(a), the Supreme Court construed this policy as requiring the courts to give full play to the means chosen by parties to a collective bargaining agreement for settlement of their differences. United Steelworkers v. American Mfg. Co., 1960, 363 U.S. 564, 80 S.Ct. 1343, 4 L.Ed.2d 1403; see also Lodge No. 12, Dist. No. 37, Int’l Ass’n of Machinists v. Cameron Iron Works, Inc., 5 Cir., 1961, 292 F.2d 112, cert. den., 368 U.S. 926, 82 S.Ct. 361, 7 L.Ed.2d 190. In Textile Workers Union v. Lincoln Mills, 1957, 353 U.S. 448, 77 S.Ct. 912, 1 L.Ed.2d 972, the court effectuated the above policy by holding that a district court had jurisdiction and authority under § 301(a) to grant specific performance of the arbitration provisions contained in a collective bargaining agreement. The court also held that federal substantive law and not state law applied in such cases. See also Local 174, Teamsters, Chauffeurs, Warehousemen & Helpers v. Lucas Flour Co., 1962, 369 U.S. 95, 82 S.Ct. 571, 7 L.Ed.2d 593, on this latter point. Subsequent to Lincoln Mills, this policy of giving full play to the means chosen" }, { "docid": "22898879", "title": "", "text": "Board and that we are not bound to follow the Board’s construction of written instruments. It does not follow, however, that the expertise of the Board is not relevant in the interpretation of a labor contract. When, as in this case, the facts must be interpreted in connection with the contract language, the function of the Board in promoting the national labor policy is particularly important. The policy considerations discussed by the Supreme Court in N.L.R.B. v. Erie Resistor Corp., 373 U.S. 221, 83 S.Ct. 1139, 10 L.Ed.2d 308, deserve mention: “Here, as in other cases, we must recognize the Board’s special function of applying the general provisions of the Act to the complexities of industrial life [cite], and of ‘[appraising] carefully the interests of both sides of any labor-management controversy in the diverse circumstances of particular cases’ from its special understanding of ‘the actualities of industrial relations.’ [cite] ‘The ultimate problem is the balancing of the conflicting legitimate interests. The function of striking that balance to effectuate national labor policy is often a difficult and delicate responsibility, which the Congress committed primarily to the National Labor Relations Board, subject to limited judicial review.’ ” 373 U.S. at 236, 83 S.Ct. at 1150. There is an undeniable national labor policy to promote arbitration. Textile Workers v. Lincoln Mills, 353 U.S. 448, 77 S.Ct. 923, 1 L.Ed.2d 972, see also Boys Markets, Inc. v. Retail Clerks Local 770, 398 U.S. 235, 90 S.Ct. 1583, 26 L.Ed.2d 199. No-strike pledges constitute the quid pro quo for a binding arbitration agreement, Lincoln Mills, 353 U.S. at 455, 77 S.Ct. 923; Boys Markets, 398 U.S. at 247-248, 90 S.Ct. 1583; United Steelworkers of America v. American Manufacturing Co., 363 U.S. 564, 567, 80 S.Ct. 1343, 4 L.Ed.2d 1403, and may even be enforced by injunction notwithstanding § 4 of the Norris-LaGuardia Act. Boys Market, 398 U.S. at 249-253, 90 S.Ct. 1583. A no-strike pledge may even be implied. Teamsters Local 174, Teamsters, Chauffeurs, etc. v. Lucas Flour Co., 369 U.S. 95, 82 S.Ct. 571, 7 L.Ed.2d 593. Since the contract before us contains an" }, { "docid": "23189559", "title": "", "text": "of several fundamental policies embodied in the national labor laws: (1) the policy against judicial interference in labor disputes, 29 U.S.C. §§ 101-115 (1976); Buffalo Forge Co. v. United Steelworkers, 428 U.S. 397, 96 S.Ct. 3141, 49 L.Ed.2d 1022 (1976); (2) the promotion of peaceful resolution of labor disputes through voluntary arbitration, Nolde Brothers, Inc. v. Local 358, Bakery & Confectionery Workers, 430 U.S. 243,253, 97 S.Ct. 1066, 1073, 51 L.Ed.2d 300 (1977); Steelworkers trilogy (United Steelworkers v. American Manufacturing Co., 363 U.S. 564, 80 S.Ct. 1363, 4 L.Ed.2d 1432 (1960); United Steelworkers v. Warrior & Gulf Navigation Co., 363 U.S. 574, 80 S.Ct. 1347, 4 L.Ed.2d 1409 (1960); United Steelworkers v. Enterprise Wheel & Car Corp., 363 U.S. 593, 80 S.Ct. 1358, 4 L.Ed.2d 1424 (I960)); and (3) deference to management prerogatives, Fibreboard Paper Products Corp. v. NLRB, 379 U.S. 203, 85 S.Ct. 398, 13 L.Ed.2d 233 (1964). Our task in reviewing the propriety of the preliminary injunction granted by the district court in the instant case, therefore, is to attempt to accommodate these often conflicting policies. In Boys Markets, Inc. v. Retail Clerks Local 770, 398 U.S. 235, 90 S.Ct. 1583, 26 L.Ed.2d 199 (1970), the Supreme Court recognized a narrow exception to the NorrisLaGuardia Act, 29 U.S.C. §§ 101-115 (1976), which broadly prohibits federal courts from issuing injunctions in labor disputes. The Court held that an employer in a federal court action brought pursuant to § 301(a) of the Labor Management Relations Act could secure an injunction against a strike if the collective bargaining agreement between the parties contained a no-strike clause and if the strike involved a grievance that the parties had agreed to submit to arbitration. The union’s promise not to strike is generally regarded as the quid pro quo for the employer’s agreement to submit grievance disputes to the process of arbitration. See Textile Workers v. Lincoln Mills, 353 U.S. 448, 455, 77 S.Ct. 912, 917, 12 L.Ed.2d 972 (1957). Thus failure to restrain the union from striking over arbitrable disputes would undercut the purpose of the arbitration provision. 398 U.S. at 247-49, 90" }, { "docid": "6973895", "title": "", "text": "promote industrial peace by ensuring uniform application of federal law to the enforcement of collective bargaining agreements. See Textile Workers Union of America v. Lincoln Mills of Alabama, 353 U.S. 448, 77 S.Ct. 912, 1 L.Ed.2d 972 (1957). Thus, federal jurisdiction is properly invoked if the complaint alleges the violation of a collective bargaining agreement affecting interstate commerce. To the extent that state law would otherwise provide a remedy for the contractual breach, it is preempted. See, e.g., Republic Steel Corp. v. Maddox, 379 U.S. 650, 657, 85 S.Ct. 614, 618-19, 13 L.Ed.2d 580 (1965); Local 174, Teamsters, Chauffeurs, Warehousemen & Helpers of America v. Lucas Flour Co., 369 U.S. 95, 103, 82 S.Ct. 571, 576-77, 7 L.Ed.2d 593 (1962); Avco Corp. v. Aero Lodge No. 735, International Association of Machinists & Aerospace Workers, 376 F.2d 337, 339-40 (6th Cir.1967), aff’d, 390 U.S. 557, 88 S.Ct. 1235, 20 L.Ed.2d 126 (1968). In a case involving the application of federal labor law, an employee asserting a violation of the collective bargaining agreement is bound by the terms of that agreement as to the method of enforcing his or her claim and, generally, is required to exhaust those remedies. See Vaca v. Sipes, 386 U.S. 171, 184, 87 S.Ct. 903, 913-14, 17 L.Ed.2d 842 (1967); Republic Steel v. Maddox, 379 U.S. at 652-53, 85 S.Ct. at 616-17; Rabalais v. Dresser Industries, Inc., 566 F.2d 518, 519 (5th Cir.1978). In this case, however, we are presented with a claim that, on its face, does not invoke the collective bargaining agreement. Eitmann asserts, rather, that the contract upon which his action is based is independent of the Union’s agreement with NOP-SI, and that it pertains to matters other than those governed by the collective bargaining agreement. NOPSI contends that Eitmann’s claim is necessarily subsumed into the collective bargaining agreement. In J.I. Case v. NLRB, 321 U.S. 332, 64 S.Ct. 576, 88 L.Ed. 762 (1944), the Court established that, while individual contracts between employer and employee are not precluded by the existence of a collective bargaining agreement, to the extent that an individual contract and" } ]

[ { "docid": "23694053", "title": "", "text": "mandatory minimum sentences, stating that “[s]ince [§ 924(c)(1)(A)’s] subsections alter only the minimum, the judge may impose a sentence well in excess of seven years, whether or not the defendant brandished the firearm.” Harris v. United States, 536 U.S. 545, 554, 122 S.Ct. 2406, 153 L.Ed.2d 524 (2002) (emphasis added). And the dissent agreed with this particular conclusion by stating, in support of its position that a finding that the defendant brandished a firearm must be made by a jury, that such a finding changes the “penalty range for a conviction” under § 924(c)(1)(A) from “five years to life in prison” to “seven years to life imprisonment.” Id. at 575-76, 122 S.Ct. 2406 (Thomas, J., dissenting). Our sister circuits agree, holding that because Congress set out a statutory mini mum but not a maximum in § 924(c)(1)(A), it implicitly authorized district courts to impose a sentence up to a maximum of life imprisonment. See United States v. Shabazz, 564 F.3d 280, 289 (3d Cir.2009); United States v. Johnson, 507 F.3d 793, 798 (2d Cir.2007); United States v. Dare, 425 F.3d 634, 642 (9th Cir.2005); United States v. Avery, 295 F.3d 1158, 1170 (10th Cir.2002); United States v. Cristobal, 293 F.3d 134, 147 (4th Cir.2002); United States v. Pounds, 230 F.3d 1317, 1319 (11th Cir.2000) (per curiam); United States v. Sias, 227 F.3d 244, 246 (5th Cir.2000). Lucas’s sentence of 210 months was not illegal because it was below the maximum sentence of life imprisonment. F. Substantively Unreasonable Lucas finally challenges his sentence of 210 months as substantively unreasonable. We review the district court’s above-range sentence under an abuse of discretion standard, in light of the sentencing factors of 18 U.S.C. § 3553(a). See Gall, 552 U.S. at 51, 128 S.Ct. 586; United States v. Courtland, 642 F.3d 545, 550 (7th Cir.2011). A sentence outside the advisory guidelines range is not presumptively unreasonable; instead, we defer to the sentencing court when “the factors in 18 U.S.C. § 3553(a), when taken as a whole, justify the extent of the variance from the guidelines.” United States v. Wise, 556 F.3d 629, 632-33 (7th" } ]

[ { "docid": "22881045", "title": "", "text": "U.S. 137, 128 S.Ct. 1581, 170 L.Ed.2d 490 (2008), set forth a new standard to evaluate which crimes constitute violent felonies under § '924(e), and Begay, as interpreted by United States v. Archer, 531 F.3d 1347, 1352 (11th Cir.2008), and United States v. Canty, 570 F.3d 1251, 1255 (11th Cir.2009), overturned our Circuit precedent in Hall; (3) Begay’s new rule is substantive and applies retroactively to Bryant’s § 924(e) claim on collateral review; (4) as a result of pure § 92A(e)-Begay ■ error and retroactive application of Begay, Bryant’s 235-month sentence exceeds the 10-year statutory maximum authorized by- Congress in § 924(a); and (5) the savings clause in § 2255(e) reaches his claim of illegal detention above the statutory maximum penalty. Accordingly, we vacate the district court’s dismissal of Bryant’s § 2241 petition and remand with instructions set forth herein. We first review the procedural history of Bryant’s case, the savings clause in § 2255(e), and our Circuit’s prior rulings about § 2255(e). We then summarize the five specific requirements a § 2241 petitioner must satisfy to proceed under § 2255(e) and explain why Bryant has satisfied them. I. PROCEDURAL HISTORY A. Indictment in 2000 In December 2000, a federal grand jury indicted Bryant on one count of knowingly possessing firearms and ammunition while being a convicted felon, “[i]n violation of [18 U.S.C. §§] 922(g)(1) and 924(e).” While § 922(g)(1) prohibits the possession of any firearm or ammunition by a convicted felon, § 922 contains no penalty provision. See 18 U.S.C. § 922(g). The penalties for § 922(g) offensés are laid out in various provisions of § 924. As to Bryant’s § 922(g)(1) crime, § 924(a)(2) provides that a person who is convicted óf knowingly violating § 922(g)(1) shall be “imprisoned not more than 10 years.” 18 U.S.C. § 924(a)(2). The statutory maximum penalty for a § 922(g)(1) crime is 10 years’ imprisonment under § 924(a)(2). Section 924(e), known as the Armed Career Criminal Act (“ACCA”), prescribes different and higher statutory penalties for the § 922(g)(1) felon-in-possession offense.' Section 924(e)(1) provides that, “[i]n the case of a person who violates" }, { "docid": "13056654", "title": "", "text": "than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” 530 U.S. at 466, 120 S.Ct. 2348. While the majority opinion in Apprendi noted that “it is arguable that Almendarez-Torres was incorrectly decided, and that a logical application of our reasoning today should apply if the recidivist issue were contested,” 530 U.S. at 489, 120 S.Ct. 2348 (footnote omitted), the Court specifically carved out and maintained the exception for “prior convictions” explained in Almendarez-Torres. See id. Thus, “Apprendi does not overrule the holding of Almendarez-Torres ... that penalty enhancements based on recidivism need not be established beyond a reasonable doubt.” United States v. Brough, 243 F.3d 1078, 1081 (7th Cir.2001). Because Skidmore’s three separate violent felony convictions were the reason he was subjected to the enhanced statutory maximum provided by § 924(e) for his violation of § 922(g)(1), we conclude that his sentence of 262 months was proper under Apprendi. See 18 U.S.C. § 924(e)(1); see also United States v. Thomas, 242 F.3d 1028, 1034 (11th Cir. 2001) (citation omitted) (finding no Ap-prendi violation in imposition of 295 month sentence where jury found the defendant guilty of violating § 922(g) and defendant had three prior violent felony convictions because “§ 924(e)(1) authorizes a punishment of not less than fifteen years (which means up to life imprisonment) for violation of § 922(g) where the defendant has previously been convicted of three violent felonies or serious drug offenses”); United States v. Dorris, 236 F.3d 582, 586-88 (10th Cir.2000) (dismissing defendant’s claim that 210 month sentence violated Apprendi when sentence was imposed pursuant to § 924(e) after jury convicted defendant of violating § 922(g)(1) and defendant had three prior violent felony convictions); United States v. Mack, 229 F.3d 226, 235 n. 12 (3d Cir.2000) (noting that Apprendi did not affect defendant’s 262 month sentence, imposed pursuant to § 924(e), after a jury found defendant guilty of violating § 922(g)(1) because the statutory maximum for that defendant, who had three prior" }, { "docid": "8625666", "title": "", "text": "Mr. Davenport did object to the counting of one of his prior drug convictions under § 924(e) on the ground that he had received a “restoration of rights” letter from the state regarding it. See Buchmeier v. United States, 581 F.3d 561, 565 (7th Cir.2009) (en banc); United States v. Vitrano, 405 F.3d 506, 510 (7th Cir.2005). The court concluded that Mr. Davenport’s rights had not been fully restored because the letter did not restore his right to vote, see United States v. Adams, 698 F.3d 965, 967-68 (7th Cir.2012); United States v. Burnett, 641 F.3d 894, 897 (7th Cir.2011), but more importantly, the court recognized that Mr. Davenport had three qualifying convictions even without counting the questionable one. (While these particular convictions were too old to garner criminal history points, the Armed Career Criminal Act places no limit on the age of convictions. See United States v. Foster, 652 F.3d 776, 792-93 (7th Cir.2011); United States v. Wright, 48 F.3d 254, 255-56 (7th Cir.1995).) The district court also adequately applied the sentencing factors of 18 U.S.C. § 3553(a). On one hand, the court explained, Mr. Davenport had not threatened anyone with his gun, had not been arrested for a felony since 2006 and had obtained letters from friends and family seeking leniency for him, but on the other hand, he has an extensive criminal history and engaged in conduct that must be deterred. The court thus decided on a prison sentence of 192 months, just four months above the bottom of the guidelines range and one year above the statutory minimum of 15 years set by § 924(e). Under these circumstances, Mr. Davenport would not be able to rebut the presumption of reasonableness to which a within-guidelines sentence is entitled. See Rita v. United States, 551 U.S. 338, 347, 127 S.Ct. 2456, 168 L.Ed.2d 203 (2007); United States v. Baker, 655 F.3d 677; 683 (7th Cir.2011). Accordingly, we grant counsel’s motion to withdraw and dismiss the appeal." }, { "docid": "9668032", "title": "", "text": "excess of seven years, whether or not the defendant brandished the firearm.” 536 U.S. at 554, 122 S.Ct. 2406 (emphasis added). This conclusion was echoed by the dissent, which, in supporting its position that a finding that the defendant brandished a firearm must be made by a jury, explained that such a finding changes the “penalty range for a conviction” under § 924(c)(1)(A) from “five years to life in prison” to “seven years to life imprisonment.” Id. at 575-76, 122 S.Ct. 2406 (Thomas, J., dissenting). The Court of Appeals for the Fifth Circuit has held that, in setting out a statutory minimum, but not a statutory maximum, “Congress ... implicitly authorized district courts to impose sentences under § 924(c)(l)(A)(ii) in excess of seven years and up to a maximum of life imprisonment.” United States v. Sias, 227 F.3d 244, 246 (5th Cir.2000). Every other Court of Appeals to address the issue directly has come to this same conclusion. See United States v. Johnson, 507 F.3d 793, 798 (2d Cir.2007); United States v. Dare, 425 F.3d 634, 642 (9th Cir.2005); United States v. Avery, 295 F.3d 1158, 1170 (10th Cir.2002); United States v. Cristobal, 293 F.3d 134, 147 (4th Cir.2002); United States v. Sandoval, 241 F.3d 549, 551 (7th Cir.2001); United States v. Pounds, 230 F.3d 1317, 1319 (11th Cir. 2000). We are persuaded that the express inclusion of a minimum sentence, but not a maximum sentence, indicates an intention to make life imprisonment the statutory maximum. Cf. United States v. Williams, 892 F.2d 296, 304 (3d Cir.1989) (explaining that “[wjhen Congress [in 18 U.S.C. § 924(e)(1)] provided for ‘imprisonment of not less than fifteen years’ ” for anyone convicted of violating § 922 who had previously been convicted of three violent felony offenses, “it meant a maximum of life”). Accordingly, we join our colleagues on other Courts of Appeals in holding that the maximum sentence for a § 924(c)(1)(A) conviction is life imprisonment. We thus affirm the District Court’s sentence of 360 months based on the suggested Guidelines range of 360 months to life imprisonment. * * * * *" }, { "docid": "19057992", "title": "", "text": "crimes. Now that we have determined one of Cureton’s § 924(c) convictions cannot stand, the next question is the proper remedy. Cureton maintains we should simply strike the second conviction and its mandatory twenty-five year sentence, and then subtract twenty-five years from his 744-month sentence. The government’s position is that we should remand Cureton’s case for resentencing. “A district judge’s sentencing decision ordinarily concerns the entire ‘sentencing package.’ ” United States v. Pennington, 667 F.3d 953, 958 n. 3 (7th Cir. 2012) (citing United States v. Smith, 103 F.3d 531, 533 (7th Cir.1996)); see also Smith, 103 F.3d at 533 (“[W]hen part of a sentence is vacated the entire sentencing package becomes ‘unbundled’ and the judge is entitled to resentence a defendant on all counts.”). The district court’s comments at sentencing reflect its intent that Cureton receive a significant sentence: [T]o tie up a young woman and kick, beat her, and threaten to cut her, and to bring other people in to frighten her, and then to call her family, just a horrible, horrible, horrible experience for everyone involved is — is cold and vicious almost beyond description. I would have given you a life sentence if the statute authorized it irrespective of what the guidelines provided for in this case. We cannot be assured that had the district court known Cureton could be convicted of only one § 924(c)(1) count, its consideration of the sentence it thought appropriate and that met the requirements of 18 U.S.C. § 3553(a) would have meant a sentence of 744 months minus twenty-five years. As a result, we vacate Cureton’s sentence and remand for resentencing, and we decline to restrict the court’s consideration on resentencing to simply excising the twenty-five year sentence as Cureton seeks. Cf. Bloch, 718 F.3d at 643-44 (remanding for defendant to be resentenced on single count of conviction after ruling that convictions of violating both § 922(g)(1) and § 922(g)(9) based on a single act of gun possession were multiplici-tous and must be merged). C. Impact of Alleyne v. United States In light of the Supreme Court’s decision in Alleyne" }, { "docid": "6634344", "title": "", "text": "to take advantage of the new ruling. The government decried Vitrano’s motion to amend as an impermissible “second or successive” § 2255 motion. The district court agreed and dismissed Vitrano’s case. Though we are not without reservations about the premises of Vitrano’s § 2255 motion, we conclude that the district court erred by not allowing the proceedings to run their course before deeming a subsequent filing “second or successive.” We therefore vacate and remand. Following his plea of guilty to possessing a firearm as a felon, 18 U.S.C. § 922(g)(1), while subject to a domestic abuse injunction to boot, id. .§ 922(g)(8)(B), Vitrano was sentenced to 120 months’ imprisonment, the statutory maximum, see 18 U.S.C. § 924(a)(2). The government challenged Vitrano’s sentence, arguing that he should have instead faced a statutory minimum of at least 180 months’ imprisonment because he had three prior “violent felony” convictions that rendered him subject to the Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e)(1). (The relevant prior convictions were for escape and reckless endangerment.) - We agreed, see United States v. Vitrano, 405 F.3d 506, 510 (7th Cir.2005), and remanded the case so the district court could resentence Vitrano pursuant to the ACCA. Vitrano’s Guidelines range under the ACCA was 235-293 months, but the district court imposed an above-Guidelines sentence of 360 months’ imprisonment after hearing evidence that Vitrano sent an ex-girlfriend live pipe bombs as a “birthday present” and brutally abused other women. Vitrano appealed, and we affirmed. See United States v. Vitrano, 495 F.3d 387 (7th Cir.2007). Dissatisfied with the threefold increase in his sentence, Vitrano moved to vacate it pursuant to 28 U.S.C. § 2255. In his pro se filing, Vitrano asserted that his Fifth Amendment rights had been violated and that he had received ineffective assistance of counsel at various stages of his criminal proceeding. He also contended that the district court erred in sentencing him as an armed career criminal. Vitrano claimed that he had recently located a discharge certificate fully restoring the civil rights he lost in connection with a 1977 conviction for reckless endangerment; if valid," }, { "docid": "15021052", "title": "", "text": "a scale, and a holstered pistol and ammunition. Abbott was charged with possession with intent to distribute methamphetamine and marijuana, 21 U.S.C. § 841(a)(1) (Counts 1 and 2); possession of a firearm by a convicted felon, 18 U.S.C. § 922(g)(1) (Count 3); and use of a firearm during and in relation to a drug trafficking crime, 18 U.S.C. ,§ 924(c) (Count 4). In presenting its case to the jury, the prosecution called Jenkins and Strong. Jenkins testified about his drug dealings with Abbott and stated that he had a felony conviction for burglary and was at that time incarcerated for a probation violation. Jenkins testified that he had no deals with the prosecution. Strong testified that he was also then in state custody on charges of possession of a weapon by a felon and burglary. Strong identified the pistol seized during the search of Abbott’s residence as the one he stole in the burglary and later sold to Abbott. Like Jenkins, Strong denied having any deals with the prosecution. The prosecutor emphasized at various points in his closing argument that the testimony of Strong, in particular, was believable, since he voluntarily testified without any deal from the government. Abbott was convicted on all counts and sentenced to concurrent terms of 262 months on Counts 1 and 3, a concurrent term of 60 months on Count 2, and a consecutive term of 60 months on Count 4, resulting in a total term of 322 months. After we vacated Abbott’s sentences on direct appeal, see United States v. Abbott, 30 F.3d 71 (7th Cir.1994), the district court resentenced Abbott to concurrent terms of 210 months on Counts 1 and 3, with Counts 2 and 4 remaining unchanged, resulting in a total term of 270 months. In Abbott’s next appeal, see United States v. Abbott, 1996 WL 628245 (7th Cir. Oct.28, 1996) (unpublished), we reversed the § 924(c) conviction based on Bailey v. United States, 516 U.S. 137, 116 S.Ct. 501, 133 L.Ed.2d 472 (1995), and on remand the district court reimposed the 210-month total term of imprisonment as to Counts 1, 2," }, { "docid": "23093275", "title": "", "text": "to the mandatory minimums of 18 U.S.C. § 924(c)(1)(A) — only 2. Apprendi Claims of Other Defendants Except Rosario All the remaining defendants, except Rosario, were sentenced to prison terms at or below the statutory maximum set in 841(b)(1)(C). For some of these defendants the maximum under § 841(b)(1)(C) was 20 years and for others, like Wilfredo Hernandez and Sandy Garvin, the maximum was 30 years because they had prior felony drug convictions. All the defendants, however, received sentences below the maximum applicable to them. Since, as discussed above, there was no Apprendi violation in this situation even under de novo review, we need not further discuss their claims, which we review only for plain error. 3. Rosario’s Apprendi Claim Rosario was convicted on Count 1 (conspiracy to violate the drug laws), Count 2 (use of minors to distribute narcotics), Count 3 (use of minors to avoid detection of drug law violations), and Count 20 (distribution of narcotics). Based on the court’s determination of the quantity of drugs for which Rosario was responsible, the district court found that the applicable sentencing guideline range was 30 years (360 months) to life. Rosario was given a prison term of 30 years, which was arrived at by imposing 30-year sentences each for Counts 1, 2, and 3, and a 20-year sentence on Count 20 — all sentences to run concurrently. As discussed above, since drug quantity was not determined by the jury, the applicable statutory maximum comes from 841(b)(1)(C), which for Rosario provides a maximum of 20 years. Facially this creates an Apprendi error, but ultimately we reject Rosario’s challenge for the following reasons. Rosario did not raise his Apprendi challenge below so we will overturn his sentence only if we find plain error. We have previously rejected arguments identical to Rosario’s. See, e.g., United States v. Martinez, 289 F.3d 1023, 1027 (7th Cir.2002); United States v. Knox, 287 F.3d 667, 669 (7th Cir.2002); United States v. Brough, 243 F.3d 1078, 1080-81 (7th Cir.2001); United States v. Parolin, 239 F.3d 922, 929-30 (7th Cir.2001). In each case our reasoning has been the same:" }, { "docid": "19057993", "title": "", "text": "experience for everyone involved is — is cold and vicious almost beyond description. I would have given you a life sentence if the statute authorized it irrespective of what the guidelines provided for in this case. We cannot be assured that had the district court known Cureton could be convicted of only one § 924(c)(1) count, its consideration of the sentence it thought appropriate and that met the requirements of 18 U.S.C. § 3553(a) would have meant a sentence of 744 months minus twenty-five years. As a result, we vacate Cureton’s sentence and remand for resentencing, and we decline to restrict the court’s consideration on resentencing to simply excising the twenty-five year sentence as Cureton seeks. Cf. Bloch, 718 F.3d at 643-44 (remanding for defendant to be resentenced on single count of conviction after ruling that convictions of violating both § 922(g)(1) and § 922(g)(9) based on a single act of gun possession were multiplici-tous and must be merged). C. Impact of Alleyne v. United States In light of the Supreme Court’s decision in Alleyne v. United States, — U.S.-, 133 S.Ct. 2151, 186 L.Ed.2d 314 (2013), Cureton also contends for the first time on appeal that he was unconstitutionally subjected to a seven-year mandatory minimum sentence for his first § 924(c)(1) conviction that was based on a brandishing finding neither charged in the indictment nor found by the jury. See 18 U.S.C. § 924(c)(l)(A)(ii) (mandating seven-year minimum term if firearm brandished). Because Cureton did not object to the seven-year mandatory minimum before the district court, he must satisfy the plain error standard to receive relief. See United States v. Kirklin, 727 F.3d 711, 718-19 (7th Cir.2013). Under that standard, we will not reverse a decision unless the defendant demonstrates that (1) there was error; (2) that the error was plain; and (3) that the error affected the defendant’s substantial rights. United States v. Olano, 507 U.S. 725, 732-35, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993). If those conditions are met, we may reverse if the error “seriously affect[s] the fairness, integrity, or public reputation of the judicial proceedings,” id.," }, { "docid": "9668033", "title": "", "text": "634, 642 (9th Cir.2005); United States v. Avery, 295 F.3d 1158, 1170 (10th Cir.2002); United States v. Cristobal, 293 F.3d 134, 147 (4th Cir.2002); United States v. Sandoval, 241 F.3d 549, 551 (7th Cir.2001); United States v. Pounds, 230 F.3d 1317, 1319 (11th Cir. 2000). We are persuaded that the express inclusion of a minimum sentence, but not a maximum sentence, indicates an intention to make life imprisonment the statutory maximum. Cf. United States v. Williams, 892 F.2d 296, 304 (3d Cir.1989) (explaining that “[wjhen Congress [in 18 U.S.C. § 924(e)(1)] provided for ‘imprisonment of not less than fifteen years’ ” for anyone convicted of violating § 922 who had previously been convicted of three violent felony offenses, “it meant a maximum of life”). Accordingly, we join our colleagues on other Courts of Appeals in holding that the maximum sentence for a § 924(c)(1)(A) conviction is life imprisonment. We thus affirm the District Court’s sentence of 360 months based on the suggested Guidelines range of 360 months to life imprisonment. * * * * * We thus affirm both Shabazz’s conviction and sentence. . The District Court had jurisdiction under 18 U.S.C. § 3231. We have jurisdiction under 18 U.S.C. § 3742(a) and 20 U.S.C. § 1291. . Those other requests were for the elements of the three counts, the Wal-Mart surveillance video, the activity summary on the phone linked to Shabazz, a letter Shabazz wrote to Rankin after being apprehended in Miami, and the photo arrays shown to Tate. . We review for abuse of discretion a district court's denial of a request for a reading of testimony. United States v. Zarintash, 736 F.2d 66, 69-70 (3d Cir.1984). . We review a denial of a motion to suppress \"for clear error as to the underlying facts, but exercise plenary review as to its legality in light of the [CJourt’s properly found facts.” United States v. Lafferty, 503 F.3d 293, 298 (3d Cir.2007) (quoting United States v. Givan, 320 F.3d 452, 458 (3d Cir.2003)). . We review a district court's \"decision to admit or exclude evidence for abuse of discre" }, { "docid": "20237531", "title": "", "text": "18 U.S.C. § 924(c)(l)(A)(i) (2006). . Title 18 U.S.C. § 924(o) states that: A person who conspires to commit an offense under subsection (c) shall be imprisoned for not more than 20 years, fined under this title, or both; and if the firearm is a machinegun or destructive device, or is equipped with a firearm silencer or muffler, shall be imprisoned for any term of years or life. 18 U.S.C. § 924(o) (2006). . Title 18 U.S.C. § 924(c)(2) provides that “[f]or purposes of this subsection, the term 'drug trafficking crime’ means any felony punishable under the Controlled Substances Act (21 U.S.C. 801 et seq.), the Controlled Substances Import and Export Act (21 U.S.C. 951 et seq.), or chapter 705 of title 46.” 18 U.S.C. § 924(c)(2) (2006). . Title 18 U.S.C. § 922(g)(1) provides that: It shall be unlawful for any person ... who has been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year ... to ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm or ammunition; or to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce. 18 U.S.C. § 922(g)(1) (2006). . McKnight was sentenced to 24 months of imprisonment as to Count 1, and a consecutive 60 month term as to Count 5, for a total sentence of 84 months. . The Court, of course, considers the facts underlying the Appellants' convictions in the light most favorable to the United States. See United States v. Simpson, 228 F.3d 1294, 1298 (11th Cir.2000). . The December 17, 2011 conversation was recorded and played for the jury, and the district court admitted the recording as Government Exhibit (\"GX”) 1 A and the transcript as GX 1 B. . The December 20, 2011 conversation was recorded and played for the jury, and the district court admitted the recording as GX 2A and the transcript as GX 2B. . The conversation inside the car was recorded and played for the jury. The district court admitted the recording as" }, { "docid": "9668036", "title": "", "text": "of multiple counts, including at least one conviction for either 18 U.S.C. § 924(c) or § 929(a), the Guidelines range is the greater of either \"(A) the [GJuideline range that results by adding the mandatory minimum consecutive penalty required by the 18 U.S.C. § 924(c) or § 929(a) count(s) to the minimum and the maximum of the otherwise applicable [G]uideline range determined for the count(s) of conviction other than the 18 U.S.C. § 924(c) or § 929(a) count(s),” or \"(B) the [G]uideline range determined using the table in subsection (c)(3).” U.S.S.G. § 4Bl.l(c)(2)(A)-(B). Under the table found at § 4B 1.1 (c)(3), the Guidelines range where there is no reduction for acceptance of responsibility is 360 months to life imprisonment, which, in Shabazz’s case, is greater than the range as calculated under § 4B 1.1 (c)(2)(A). . Shabazz describes Hatris as a \"plurality decision.” Shabazz’s Br. 25. However, the portion of Hams relevant to whether the brandishing finding increased the statutory maximum for Shabazz's offense — Part II— was joined by a majority of the Court. . At the District Court, Shabazz objected to the presentence investigation report's designation of life imprisonment as the statutory maximum for his § 924(c) conviction. This issue was thus preserved. . Shabazz cites one case, United States v. Jones, 418 F.3d 726 (7th Cir.2005), that appears to depart from this consensus. There, the Court noted, with respect to a defendant convicted of both § 924(c)(l)(A)(iii) (discharging a gun in connection with a crime of violence) and 18 U.S.C. § 2113(a) (bank robbery), that \"the jury's verdict authorized the judge to impose any sentence up to the maximum of twenty years in prison.\" Jones, 418 F.3d at 732 (emphasis added). But, to the extent the Court implied that the maximum sentence for a § 924(c)(1)(A) conviction is twenty years, it did so in a dictum. The issue addressed in Jones was the same one addressed in Harris — whether a fact that alters the statutory minimum for an offense must be found by a jury. See Jones, 418 F.3d at 730-32. It was not the" }, { "docid": "9186502", "title": "", "text": "2244(b)(3)(C); see also Jordan v. Sec'y, Dep't of Corrs. , 485 F.3d 1351, 1357-58 (11th Cir. 2007) (explaining that this Court's determination that an applicant has made a prima facie showing that the statutory criteria have been met is simply a threshold determination). I. BACKGROUND In 2004, Hammoud was charged by a federal grand jury with various crimes in a 13-count superseding indictment. In 2005, pursuant to a written plea agreement, Hammoud pleaded guilty to these four counts: (1) retaliating against a witness, in violation of 18 U.S.C. § 1513 (Count 1); (2) solicitation to commit murder, in violation of 18 U.S.C. § 373 (Count 3); (3) use of a firearm during a crime of violence, in violation of 18 U.S.C. § 924(c) (Count 5); and (4) possession of a firearm by a convicted felon, in violation of 18 U.S.C. § 922(g) (Count 13). As to the § 924(c) firearm charge in Count 5, the plea agreement specified that Hammoud possessed a firearm during the solicitation crime charged in Count 3. The district court dismissed the remaining nine counts and sentenced Hammoud to a total imprisonment term of 240 months, consisting of (1) concurrent 180-month sentences as to Counts 1 (retaliation) and 3 (solicitation); (2) a concurrent 120-month sentence as to Count 13 (felon in possession); and (3) a consecutive 60-month sentence as to Count 5 (the § 924(c) offense). In 2006, Hammoud filed a direct appeal challenging his guilty pleas as to Counts 1 and 13 and his total sentence. See United States v. Hammoud , 229 F. App'x 869, 871 (11th Cir. 2007). On appeal, this Court affirmed Hammoud's convictions and dismissed his sentencing claim based on the sentence appeal waiver provision in his plea agreement. Id. at 877. In 2008, Hammoud filed his original § 2255 motion to vacate, set aside, or correct his sentence raising a single ineffective assistance of trial counsel claim, which the district court denied on the merits. In 2018, Hammoud filed an application for leave to file a second or successive § 2255 motion with this Court, arguing, among other things, that" }, { "docid": "22570133", "title": "", "text": "each requires proof of an element that the other does not. Section 922(g)(1) requires proof (1) that the defendant had been previously convicted of a crime punishable by imprisonment for a term exceeding one year; (2) that the defendant knowingly possessed, transported, shipped, or received, the firearm; and (3) that the possession of the firearm was in or affecting interstate commerce because the firearm had traveled in interstate or foreign commerce at some point during its existence. See United States v. Langley, 62 F.3d 602, 606 (4th Cir.1995) (stating elements of § 922(g)). Section 924(c), by contrast, requires proof (1) that the defendant actively used or carried a firearm; (2) during and in relation to his commission of a crime of violence or drug trafficking crime. See United States v. Mitchell, 104 F.3d 649, 652 (4th Cir.1997) (stating elements of § 924(c)). Thus, violation of § 922(g) requires proof of an element that § 924(c) does not, i.e., that the defendant was a previously convicted felon; and violation of § 924(e) requires proof of an element that § 922(g) does not, i.e., active use or carrying of a firearm. “Therefore, each statutory provision includes an element that the other does not, and multiple punishments are presumed.” S. Johnson, 219 F.3d at 359; United States v. Garrett, 903 F.2d 1105, 1114-15 (7th Cir.1990) (rejecting argument that because “sections 922(g) and 924(c) constitute multiple punishments for the same criminal conduct — possession of a firearm,” consecutive sentences imposed for convictions under both 18 U.S.C.A. §§ 922(g) and 924(c) violate the Double Jeopardy clause); cf. United States v. Presley, 52 F.3d 64, 68 (4th Cir.1995) (stating that the Armed Career Criminal Act “does not violate the Double Jeopardy Clause”). B. Studifin next argues that his sentence constitutes improper double counting under the Guidelines because the district court both enhanced his offense level under the Armed Career Criminal guideline, United States Sentencing Commission, Guidelines Manual, § 4B1.4 (Nov.1998), and also imposed the statutory mandatory minimum under § 924(c). Such double counting, however, is not per se improper. See United States v. Crawford, 18 F.3d" }, { "docid": "20772060", "title": "", "text": "TINDER, Circuit Judge. This case requires us to consider whether the district court abused its discretion in denying Thomas Vitrano’s motion to amend his 28 U.S.C. § 2255 petition. For the reasons that follow, we find no abuse of discretion and affirm. I. BACKGROUND Vitrano was convicted pursuant to his guilty plea of possessing a firearm as a felon, 18 U.S.C. § 922(g)(1), and possessing a firearm while subject to a domestic abuse injunction, id. § 922(g)(8)(B). He was sentenced to 120 months’ imprisonment. See 18 U.S.C. § 924(a)(2). The government challenged the sentence, arguing that Vitrano should have faced a statutory minimum of at least 180 months’ imprisonment because of three prior “violent felony” convictions that subjected him to the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e)(1). (The prior convictions were for escape and recklessly endangering safety.) We agreed and remanded for resentencing. See United States v. Vitrano, 405 F.3d 506 (7th Cir.2005). Although Vitrano’s ACCA guidelines range was 235-293 months, the district court imposed an above-guidelines sentence of 360 months. Vitrano appealed and we affirmed. See United States v. Vitrano, 495 F.3d 387 (7th Cir.2007). On March 20, 2008, Vitrano moved to vacate his sentence pursuant to 28 U.S.C. § 2255. In his pro se filing, he asserted that his Fifth Amendment rights had been violated, that he had received ineffective assistance of counsel, and that the district court had erred in sentencing him as an armed career criminal. Vitrano claimed that he had recently located a discharge certificate fully restoring the civil rights he lost in connection with a 1977 conviction for endangering safety; if valid, the certificate would render the conviction uncounta ble for ACCA purposes, regardless of whether it constituted a “violent felony.” See 18 U.S.C. § 921(a)(20); Buchmeier v. United States, 581 F.3d 561, 563-64 (7th Cir.2009) (en banc). In the course of the proceedings, Vitrano claimed the existence of two different original discharge certificates. Forensic testing of both certificates along with a witness’s recanted testimony and testimony from other witnesses led the government to conclude that both certificates were “provably fake.”" }, { "docid": "19057981", "title": "", "text": "stored at the same location. McFarland v. Pickett, 469 F.2d 1277, 1279 (7th Cir.1972); see also Moses, 513 F.3d at 731; United States v. Bu-chmeier, 255 F.3d 415, 422 (7th Cir.2001). That is, when a defendant’s possession of multiple firearms is “simultaneous and undifferentiated,” only one § 922(j) violation may be charged regardless of the quantity of firearms possessed. Buchmeier, 255 F.3d at 422. Likewise, a single act of gun possession can result in only one conviction under 18 U.S.C. § 922(g), even if the defendant violated § 922(g) in multiple ways or possessed multiple firearms at the same time. United States v. Bloch, 718 F.3d 638, 643 (7th Cir.2013) (ruling that convictions for both possession of firearm by a felon in violation of § 922(g)(1) and by a person with a misdemeanor domestic violence conviction in violation of § 922(g)(9) were improper when there was only one gun possession, and holding that only a single conviction was appropriate); see also United States v. Parker, 508 F.3d 434, 440 (7th Cir.2007) (“ § 922(g) cannot support multiple convictions based on a single firearm possession because the allowable unit of prosecution is the incident of possession, not the defendant’s membership in a class (or classes) of persons disqualified from possession.”). We have also held that distinctly committed crimes, even those committed on the same day, can support multiple § 924(c) violations and the consecutive sentences that result. United States v. Paladino, 401 F.3d 471, 478-79 (7th Cir. 2005). So where an armed defendant sold crack to one person in the morning, and after arming himself again sold crack to another person in the afternoon, we said, “These were unquestionably separate drug offenses, and therefore his carrying of a gun during each of them constituted two violations of section 924(c).” Id. And we affirmed an enhancement for the use of a bomb to rob a bank even though the defendant had been convicted under § 924(c)(1)(A) for the use of a firearm during the same bank robbery, reasoning that the use of a bomb was substantively and substantially different than the use" }, { "docid": "22570134", "title": "", "text": "element that § 922(g) does not, i.e., active use or carrying of a firearm. “Therefore, each statutory provision includes an element that the other does not, and multiple punishments are presumed.” S. Johnson, 219 F.3d at 359; United States v. Garrett, 903 F.2d 1105, 1114-15 (7th Cir.1990) (rejecting argument that because “sections 922(g) and 924(c) constitute multiple punishments for the same criminal conduct — possession of a firearm,” consecutive sentences imposed for convictions under both 18 U.S.C.A. §§ 922(g) and 924(c) violate the Double Jeopardy clause); cf. United States v. Presley, 52 F.3d 64, 68 (4th Cir.1995) (stating that the Armed Career Criminal Act “does not violate the Double Jeopardy Clause”). B. Studifin next argues that his sentence constitutes improper double counting under the Guidelines because the district court both enhanced his offense level under the Armed Career Criminal guideline, United States Sentencing Commission, Guidelines Manual, § 4B1.4 (Nov.1998), and also imposed the statutory mandatory minimum under § 924(c). Such double counting, however, is not per se improper. See United States v. Crawford, 18 F.3d 1173, 1179-80 (4th Cir.1994) (stating that “triple counting” the same conduct under the Guidelines “will be upheld unless it is expressly prohibited by the guidelines” because “the guidelines should be applied as written” (internal quotation marks omitted)); United States v. Sanders, 982 F.2d 4, 6-7 (1st Cir.1992) (finding no impermissible double counting where Sanders was convicted under § 922(g) and § 924(c) and also received an enhancement under U.S.S.G. § 4B1.4 as an armed career criminal); see also 18 U.S.C.A. § 924(c)(1)(A) (providing that the mandatory minimum sentence should apply even where the underlying crime already “provides for an enhanced punishment if committed by the use of a deadly or dangerous weapon or device”); cf. B. Johnson, 32 F.3d at 86 (“[T]he penalty provision of § 924(c)(1) states that the term of incarceration shall be ‘in addition to the punishment provided for such crime of violence.’ This penalty provision further supports our view that Congress was well aware of the cumulative sentencing effect of § 924(c)(1).”). Studifin points to U.S.S.G. § 2K2.4, which provides that" }, { "docid": "23165853", "title": "", "text": "BENAVIDES, Circuit Judge: Defendant Cheryl Yvonne Stone (“Stone”) was indicted by a single count superseding indictment, charging a violation of 18 U.S.C. § 922(g) [Felon in Possession of a Firearm] (“Section 922(g)”). It was further alleged that Stone qualified for a sentence enhancement pursuant to the Armed Career Criminal Act [18 U.S.C. § 924(e) ] (“Section 924(e)”). Stone was convicted after a jury trial and sentenced to 71 months’ imprisonment. In sentencing Stone, the district court refused to enhance Stone’s sentence pursuant to Section 924(e), and the United States appeals. Because the grounds given for the denial are unsupported by law, we vacate and remand for re-sentencing. I. Stone was arrested when a search of her home uncovered three firearms: a .22 caliber rifle; a .30-30 caliber rifle; and a 12 gauge shotgun. The Pre-Sentence Investigation Report (the “PSI”) established that Stone had two prior burglary convictions and a conviction for aggravated battery. The former convictions appear to be based on burglaries of two different buildings, occurring a month apart. As noted above, the district court declined to enhance Stone’s sentence pursuant to Section 924(e). It reasoned that Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000) barred the enhancement because the jury was not asked to And that Stone had committed three previous violent felonies or serious drug crimes. The district court also appeared to conclude that Stone’s criminal history consisted of only two prior violent felonies for the purposes of Section 924(e) because Stone’s two burglary convictions stemmed from a single arrest. II. The applicability of Apprendi to this case is a question of law that we review de novo. See, e.g., United States v. Trennell, 290 F.3d 881, 889 (7th Cir.2002). We have yet to address in a published opinion, post-Apprendi, whether the Fifth and Sixth Amendments require that a Section 924(e) enhancement be based on a jury finding. Cf. United States v. Doggett, 230 F.3d 160, 166 (5th Cir.2000) (holding that the sentencing court did not err in using prior convictions to enhance a sentence pursuant to Section 841(b)(1)(C), even though" }, { "docid": "22216049", "title": "", "text": "wrapped in rubber bands, and a plastic bag containing white residue, later determined to be narcotics. One of the officers also noticed a strange odor which he associated with narcotics. Later that evening, an inventory search of the car revealed a hidden compartment containing a loaded gun, a gun magazine, bullets, and 180 small bags of powder and crack cocaine. Williams’s fingerprints were on the gun magazine. At trial, Williams admitted that he had been driving the car, which was registered to his sister, and that the cellular phones and cash, which totaled $1,100, were his. The jury found Williams guilty of three counts: (1) possessing a firearm after being convicted of a felony, in violation of 18 U.S.C. § 922(g); (2) possessing with intent to distribute over 50 grams of crack cocaine, in violation of 21 U.S.C. §§ 812, 841(a) & 841(b)(1)(A); and (3) possessing a firearm in furtherance of the drug trafficking crime charged in count two, in violation of 18 U.S.C. § 924(c)(l)(A)(i). Williams was sentenced principally to 130 months’ imprisonment on count one (felon-in-possession), to run concurrently with a sentence of 135 months’ imprisonment on count two (drug trafficking), and an additional consecutive five years’ (60 months’) imprisonment on count three (possession of a firearm in furtherance of drug trafficking), for a total of 195 months’ imprisonment. The felon-in-possession conviction carried no mandatory minimum sentence. 18 U.S.C. § 922(g). But the drug trafficking conviction carried a mandatory minimum penalty of ten years under 21 U.S.C. § 841(b)(1)(A). Because Section 841(b)(1)(A) is “any other provision of law” that “otherwise provide[s]” “a greater minimum sentence,” 18 U.S.C. § 924(c)(1)(A), Williams argues that the five-year minimum for possession of a firearm under Section 924(c)(1)(A)® does not apply. Williams also raises various other challenges to his conviction and sentence. DISCUSSION 1. Section 924(c) A. United States v. Whitley Section 924(c) provides graduated penalties for various types of firearm use. In United States v. Whitley, 529 F.3d 150 (2d Cir.2008), reh’g denied, 540 F.3d 87 (2d Cir.2008), we interpreted the introductory “except” clause of Section 924(c)(1)(A). That subsection provides, in pertinent" }, { "docid": "14105402", "title": "", "text": "ten times, which would yield a total of 2.5 to 5 grams. But the report of Vincent’s pretrial inter views says that she purchased half grams twice a week over a 23-week period from late summer 2001 until February 2002. The court used this second statement to attribute 23 grams to White. Where a sentencing court chooses to rely on one of two contradictory statements made by a witness, it should address the contradiction and explain why it credits one statement over the other. United States v. Span, 170 F.3d 798, 803 (7th Cir.1999); United States v. McEntire, 153 F.3d 424, 437 (7th Cir.1998); United States v. Acosta, 85 F.3d 275, 282 (7th Cir.1996); United States v. Duarte, 950 F.2d 1255, 1266 (7th Cir.1991). The court did not do so here, but the error is harmless because, as the judge recognized at the sentencing hearing, even if he reduced the amount of methamphetamine based on Vincent’s testimony to the minimum of 2.5 grams, White’s base offense level would be unaffected because the total attributed to him would still exceed 50 grams. See U.S.S.G. § 2D1.1(c)(7). Moreover, there was a wealth of other trial testimony from Moritz, Heath, and Price that the district court did not even address in calculating the drug quantity. Lastly, we note that White received a concurrent sentence of 135 months on each of the three counts. The statutory maximum for violating 18 U.S.C. § 922(g)(1) is 120 months. See 18 U.S.C. § 924(a)(2). Accordingly — although it will not reduce the amount of time White spends in prison — we vacate the term of imprisonment on this count only and remand with instructions for the district court to impose a concurrent term within the statutory limit. We affirm White’s sentence in all other respects. AFFIRMED IN PART, VACATED IN PART, AND Remanded." } ]